2
to submit its views on the lawfulness of the government’s request.
2
The Court heard oral argument
on the government’s application on June 4, 2018. It granted the application and signed the search
warrant on June 7, 2018. The Court now issues this opinion to explain its reasoning for doing so.
I. BACKGROUND
The government’s affidavit in support of the warrant established probable cause to believe
that the premises to be searched was the Subject’s, an individual whom the government had
probable cause to believe has violated 18 U.S.C. § 1030, which prohibits fraud and related activity
involving computers. The application further established probable cause to believe that personal
electronic devices used or controlled by the Subject, and which might be found on the premises to
be searched, contained evidence or information about, or were the instrumentalities of, those
crimes (the “Subject Devices”). Specifically, Attachment B to the requested warrant described the
evidence to be seized during the search of the premises, including,
for any digital device which is capable of containing and reasonably could contain
fruits, evidence, information, contraband, or instrumentalities as described in the
search warrant affidavit and above, including but not limited to . . . [a certain]
computer referenced in the search warrant affidavit [that the Subject has been seen
using]:
. . . evidence of who used, owned, or controlled the [Subject Devices] at the
time the things described in this warrant were created, edited, or deleted,
such as logs, registry entries, configuration files, saved usernames and
passwords, documents, browsing history, user profiles, email, email
contacts, “chat,” instant messaging logs, photographs, and correspondence
. . . .
Attachment B, ¶ 3.a. Attachment B further stated:
Although already generally covered by paragraph 3.a. above, during the execution
of the search of the [premises] described in Attachment A, law enforcement
personnel are also specifically authorized to compel [the Subject] to provide
biometric features, including pressing his fingers (including thumbs) against and/or
2
The Court thanks the Federal Public Defender for its submission and participation at oral argument, both of which
were of considerable assistance in resolving the government’s application.
3
putting his face before the sensor, or any other security feature requiring biometric
recognition, of:
(a) any of the [Subject Devices] found at the [premises], and
(b) where the [Subject Devices] are limited to those which are capable
of containing and reasonably could contain fruits, evidence,
information, contraband, or instrumentalities of the offense(s) as
described in the search warrant affidavit and warrant attachments,
for the purpose of attempting to unlock the [Subject Devices’] security features in
order to search the contents as authorized by this warrant.
Attachment B, ¶ 4. The affidavit in support of the warrant application noted that, from both the
affiant’s “training and experience, [and] . . . from information found in publicly available materials
published by device manufacturers, . . . many electronic devices, particularly newer mobile devices
and laptops, offer their users the ability to unlock the device through biometric features” rather
than with passwords or passcodes. Affidavit, ¶ 59.a. Importantly, the warrant made clear that law
enforcement was not authorized “to compel any other individuals found at the [premises] to
provide biometric features . . . to access or otherwise unlock any [Subject Device],” or to request
the Subject “to state or otherwise provide the password or any other means that may be used to
unlock or access the [Subject Devices], including by identifying the specific biometric
characteristics (including the unique finger(s) or other physical features) that may be used to
unlock or access the [Subject Devices].” Attachment B, ¶ 4. That is, absent the Subject’s
Mirandized-waiver of constitutional rights, the government was not permitted to ask the Subject
to disclose which biometric feature (e.g., which finger) would unlock any of the Subject Devices.
Rather, law enforcement was required to select which biometric feature to test on a given device.
4
II. DISCUSSION
A. Fourth Amendment
“The Fourth Amendment provides in relevant part that ‘[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause.’” Missouri v. McNeely,
569 U.S. 141, 148 (2013) (quoting U.S. Const. amend IV). Here, the affidavit submitted in support
of the search warrant established both probable cause to believe that a crime had been committed
and that evidence of the crime would be found at the premises to be searched, including on the
Subject Devices. Thus, the government’s warrant satisfied the requirements of the Fourth
Amendment justifying the search of the premises and of the above-described Subject Devices.
3
3
Based on the limited information that was provided as part of the Court’s order to submit an amicus brief, the Federal
Public Defender argued that “the government’s request to generally search any digital device(s) that may be found at
the premises likely violates the Fourth Amendment’s particularity requirement.” Amicus Curiae Mem. at 1 n.1. The
concern of amicus is understandable in light of the fact that it has seen neither the proposed warrant, itself, nor the
affidavit supporting it. However, the government’s warrant was sufficiently particularized.
The Fourth Amendment’s particularity requirement has three components: a warrant “must identify the
specific offense” for which law enforcement has established probable cause; it must “describe the place to be
searched”; and it must “specify the ‘items to be seized by their relation to designated crimes.’” United States v. Galpin,
720 F.3d 436, 446 (2d Cir. 2013) (quoting United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010)); see also
United States v. Griffith, 867 F.3d 1265, 1271 (D.C. Cir. 2017) (“[T]here must, of course, be a nexus . . . between the
item to be seized and criminal behavior.” (second alteration in original) (quoting Warden, Md. Penitentiary v. Hayden,
387 U.S. 294, 307 (1967))). “[A] failure to describe the items to be seized with as much particularity as the
circumstances reasonably allow offends the Fourth Amendment because there is no assurance that the permitted
invasion of a suspect’s privacy and property are no more than absolutely necessary.” Galpin, 720 F.3d at 446 (quoting
United States v. George, 975 F.2d 72, 76 (2d Cir. 1992)). Here, the warrant identified the crime at issue as 18 U.S.C.
§ 1030—“Fraud and relat[ed] activity in connection with computers.” Warrant. It identified the specific place to be
searched. Id. And it adequately specified the items to be seized and their connection to the identified crimes. The
Affidavit, incorporated by reference into the warrant, explained that “individuals who engage in the . . . described
criminal activity use digital devices like [those sought] to facilitate illegal activity . . . ; [and] to store . . . documents
and records relating to their illegal activity,” among other things, and explained why the affiant had reason to believe
that such devices may have been used in furtherance of the crime being investigated. Affidavit, ¶¶ 51–52, 55; see also
United States v. Maxwell, 920 F.2d 1028, 1031 (D.C. Cir. 1990) (“[A] search warrant may be construed with reference
to the affidavit supporting it . . . if ‘(1) the affidavit accompanies the warrant, and in addition (2) the warrant uses
“suitable words of reference” which incorporate the affidavit by reference.’” (quoting United States v. Vaughn, 830
F.2d 1185, 1186 (D.C. Cir. 1987))). It further limited the devices to be searched to those located at the searched
premises “that based on their location, appearance, and/or other information learned at the time of the execution of
the warrant appear capable of containing evidence, fruits, contraband, instrumentalities, and information” relating to
the offenses alleged to have been committed by the target of the investigation,” explaining further that, given certain
facts of the case, such devices are likely to be found on the premises. Id., ¶ 52. Attachment B, in turn, asserted that
5
The novel question presented by the government’s application is whether its request to compel the
use of the Subject’s biometric features in an attempt to open the Subject Devices found on the
premises ran afoul of the Fourth Amendment.
“The overriding function of the Fourth Amendment is to protect personal privacy and
dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767
(1966). As the Supreme Court has repeatedly recognized, “obtaining . . . physical evidence from
a person involves a potential Fourth Amendment violation at two different levels—the ‘seizure’
of the ‘person’ necessary to bring him into contact with government agents, and the subsequent
search for and seizure of the evidence. United States v. Dionisio, 410 U.S. 1, 8 (1973) (internal
citation omitted) (citing Davis v. Mississippi, 394 U.S. 721 (1969)). That said, when a location is
searched pursuant to a valid warrant, law enforcement generally may detain occupants who are on
the premises during its execution without violating the Fourth Amendment’s prohibition on
unreasonable seizures. See, e.g., Bailey v. United States, 568 U.S. 186, 201 (2013); Michigan v.
Summers, 452 U.S. 692, 705 (1981); cf. United States v. Broussard, 80 F.3d 1025, 1033 (5th Cir.
1996) (suggesting that “prolonged” or “overly intrusive” detention in relation to execution of
warrant may violate Fourth Amendment). Assuming, then, that the government’s seizure of the
Subject during the execution of the warrant was otherwise done in a manner consistent with the
the devices to be searched must be “capable of containing and reasonably could contain fruits, contraband,
instrumentalities, and information” relating to the offenses alleged to have been committed by the target of the
investigation. Attachment B, ¶ 4. Finally, the warrant lists the categories of information related to the offense under
investigation to be seized from the devices, including evidence of who used or controlled the Subject Devices at the
time the things described in the warrant were created, edited, or deleted; evidence of software, such as viruses and
Trojan horses, that would allow others to control the Subject Devices; evidence of other storage devices for electronic
information attached to the Subject Devices; evidence of programs and associated data designed to eliminate data
from the Subject Devices; evidence of the times the Subject Devices were used; information that may be necessary to
access the Subject Devices; information about IP addresses used by the Subject Devices; and information about the
Subject Devices’ Internet activity. Attachment B, ¶ 3. This is not, then, a situation in which a proposed warrant lacked
sufficient indicia that the target of the investigation owned such devices and used them in furtherance of the alleged
crime, see Griffith, 867 F.3d at 1273, or failed to limit the items and information seized to that relating to the alleged
crime, see In re Black iPhone 4, 27 F. Supp. 3d 74, 78 (D.D.C. 2014). In short, the warrant satisfied the particularity
requirement of the Fourth Amendment.
6
Fourth Amendment—that is, that the seizure of the Subject’s person was accomplished “in the
immediate vicinity of the premises to be searched,” Bailey, 568 U.S. at 201, and was neither
prolonged nor overly intrusive, Broussard, 80 F.3d at 1033—the question then becomes whether
the government taking the additional step of testing the Subject’s biometric features on any Subject
Devices found during the search of the premises similarly complies with the Fourth Amendment.
The government’s memorandum cites a number of cases to support the proposition that
“obtaining an individual’s physical characteristics,” including fingerprints, palm prints, and
photographic likenesses, “does not constitute an intrusion upon his privacy that warrants Fourth
Amendment protection.” Government Mem. at 5 (citing United States v. Farias-Gonzalez, 556
F.3d 1181, 1188 (11th Cir. 2009), United States v. Kaczmarak, 62 F. App’x 510, 511 (4th Cir.
2003), United States v. Teter, No. 06-4050-01-CR, 2008 WL 141671, at *6 (W.D. Mo. Jan. 11,
2008), Stehney v. Perry, 907 F. Supp. 806, 823 (D.N.J. 1995), and Rowe v. Burton, 884 F. Supp.
1372, 1384 (D. Alaska 1994)); but see United States v. Askew, 529 F.3d 1119, 1158 (D.C. Cir.
2008) (noting that although “[i]n a 1973 case, the Supreme Court hinted in dicta that fingerprinting
may not be a search,” later precedent, such as Hayes v. Florida, 470 U.S. 811 (1985), “plainly
considered fingerprinting a search”). However, it acknowledges that “most of the cases that have
rejected Fourth Amendment challenges to fingerprinting involved fingerprints obtained: (1) when
individuals were already lawfully in custody; (2) via grand jury subpoena or other legal process;
or (3) only for identification and not investigative purposes,” and concedes that “the Fourth
Amendment is implicated when the government seeks physical aspects for investigatory
purposes.” Government Mem. at 5 n.3, 6 (emphasis added).
The government’s point is well-taken. For example, in Davis v. Mississippi, 394 U.S. 721,
726–27 (1969), the Supreme Court held that fingerprints obtained from a defendant as part of an
7
investigatory detention without probable cause should have been excluded from trial. Similarly,
in Hayes, 470 U.S. at 816, the Court held that fingerprints were properly suppressed when the
defendant was arrested without probable cause, taken to the police station without consent, and
detained and fingerprinted for investigative purposes. See also, e.g., United States v. Oscar-
Torres, 507 F.3d 224, 232 (4th Cir. 2007) (“[F]ingerprints taken as part of routine booking
procedures but intended to provide evidence for criminal prosecution are . . . motivated by an
investigative . . . purpose. Such fingerprints are, accordingly, subject to exclusion.” (emphasis
omitted)); United States v. Olivares-Rangel, 458 F.3d 1104, 1114 (10th Cir. 2006) (“In Davis and
Hayes, the Supreme Court held that when an illegal arrest was used as an investigatory devise to
obtain fingerprints, the fingerprints were regarded as inadmissible fruit of an illegal detention.”);
United States v. Ortiz-Hernandez, 427 F.3d 567, 580–81 (9th Cir. 2005) (Fletcher, J., dissenting)
(“It is established law under Hayes . . . and Davis . . . that [unlawfully-obtained] fingerprints taken
for purely investigatory purposes must be suppressed [pursuant to the Fourth Amendment].”).
However, the fact that the Fourth Amendment is implicated when law enforcement detains
an individual to obtain fingerprints (or similar physical characteristics) for an investigatory
purpose does not mean that all such instances of fingerprinting violate the Constitution. As the
Supreme Court observed in Davis, “[d]etentions for the sole purpose of obtaining fingerprints are
no less subject to the constraints of the Fourth Amendment. It is arguable, however, that, because
of the unique nature of the fingerprinting process, such detentions might, under narrowly defined
circumstances, be found to comply with the Fourth Amendment even though there is no probable
cause in the traditional sense.” 394 U.S. at 727.
The question then is—even where the government is permitted to detain briefly an
individual during a search warrant’s execution consistent with Bailey and Broussard—what further
8
showing does the Fourth Amendment require before the government may be authorized to compel
the use of an individual’s biometric features in an attempt to unlock a digital device that it is
authorized to search pursuant to a warrant? The decision is not without consequence, and rightfully
so given the privacy interests at stake recognized in Davis. See Davis, 394 U.S. at 726–27
(“Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale
intrusions upon the personal security of our citizenry, whether these intrusions be termed ‘arrests’
or ‘investigatory detentions.’”). Surely it would not be constitutional, for example, for the
government to demand the use of anyone’s biometric features for the purpose of attempting to
unlock such a digital device. Rather, the standard should focus on the government’s evidence of
the connection between the individual and the device and should prove dispositive in situations
where the government’s evidence concerning that connection is non-existent or amounts to nothing
more than a guess or a hunch.
At oral argument, the government argued that the Court should not further define the
standard beyond that of the “reasonableness” that the Fourth Amendment requires of law
enforcement whenever it executes a search warrant. Under that standard, provided a warrant is
properly issued, “it is generally left to the discretion of the executing officers to determine the
details of how best to proceed with the performance of the search authorized by the warrant—
subject of course to the general Fourth Amendment protection ‘against unreasonable searches and
seizures.’” Dalia v. United States, 441 U.S. 238, 255, 257 (1979) (footnote omitted) (first quoting
Warden v. Hayden, 387 U.S. 294, 307 (1967), then quoting Stanford v. Texas, 379 U.S. 476, 485
(1965)). Characterizing the compelled use of a detained individual’s biometric features during the
execution of a warrant as one of “the method[s] of executing the warrant,” the government
suggested that, as long as law enforcement acts reasonably during a search—including in
9
determining whose biometric features it may use to attempt to unlock a digital device that it is
authorized to search pursuant to a warrant —the Fourth Amendment would be satisfied.
Here, however, the government asked for prior authorization from the Court to place an
individual’s fingerprints on certain digital devices (or to use other biometric features to gain access
to them): namely, the warrant “specifically authorize[s]” law enforcement to compel the Subject
to provide biometric features. Attachment B, ¶ 4. Such authorization can have significant
consequences for the individual whose biometric features are tested by the government. Nor did
the government deny at oral argument that it might later argue that it reasonably relied on the
Court’s authorization if its compelled use of the individual’s biometric features is challenged. See,
e.g., United States v. Cardoza, 713 F.3d 656, 658 (D.C. Cir. 2013) (“Under United States v. Leon,
[468 U.S. 897, 913 (1984),] suppression of evidence is usually not required when officers conduct
a search in reasonable reliance on a search warrant issued by a detached and neutral magistrate.”).
In such circumstances, the legal standard that the government must apply pursuant to the Court’s
authorization should be more clearly defined, rather than leaving it to law enforcement to act
reasonably “under the particular circumstances” that obtain during the search.
For its part, the Federal Public Defender proposed at oral argument that, before receiving
court approval to use biometric features to attempt to unlock a digital device, the government
should be required to establish probable cause to believe that the device belongs to the suspect.
But while the taking of a fingerprint is undeniably a search, see, e.g., Hayes, 470 U.S. at 816–17;
Askew, 529 F.3d at 1158 (“The Court’s . . . decision in Hayes plainly considered fingerprinting a
search . . . .”), cases have recognized a diminished interest in “purely external searches such as
fingerprinting,” based on their less intrusive nature, United States v. Kriesel, 508 F.3d 941, 948
(9th Cir. 2007); see also, e.g., Dionisio, 410 U.S. at 14 (“The required disclosure of a person's
10
voice is thus immeasurably further removed from the Fourth Amendment protection than was the
intrusion into the body effected by the blood extraction in Schmerber.”); United States v. Weikert,
504 F.3d 1, 12 (1st Cir. 2007) (“[A]n internal search such as a blood draw is inherently more
intrusive than a purely external search such as fingerprinting or photographing.”); Nicholas v.
Goord, 430 F.3d 652, 658 (2d Cir. 2005) (“[T]he Court has also recognized a distinction between
non-intrusive means of obtaining physical evidence (such as fingerprinting) and more invasive
measures (such as drawing blood).”); Cf. McNeeley, 569 U.S. at 148, 165 (refusing to endorse a
blanket exception to the warrant requirement for blood tests of suspects in drunk-driving cases
based on exigent circumstances, and emphasizing that the search “involved a compelled physical
intrusion beneath [the suspect’s] skin and into his veins to obtain a sample of his blood for use as
evidence in a criminal investigation,” an “invasion of bodily integrity [that] implicates an
individual’s ‘most personal and deep-rooted expectations of privacy’”) (quoting Winston v. Lee,
470 U.S. 753, 760 (1985)). Further, in Hayes, the Supreme Court indicated that the Fourth
Amendment would permit “a brief detention in the field for purpose of fingerprinting” for an
investigatory purpose on a showing of less than probable cause, a situation analogous to that
presented by the government’s application here.
4
470 U.S. at 816. The Court observed in Hayes:
There is . . . support in our cases for the view that the Fourth Amendment would
permit seizures for the purpose of fingerprinting, if there is reasonable suspicion
that the suspect has committed a criminal act, if there is a reasonable basis for
believing that fingerprinting will establish or negate the suspect’s connection with
that crime, and if the procedure is carried out with dispatch.
470 U.S. at 817; see also Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humboldt Cty., 542 U.S. 177,
188–89 (2004) (quoting Hayes dictum with approval).
4
In this regard, the Court sees no principled distinction that can be made between the intrusiveness of the government’s
compelled use of an individual’s fingerprints versus his or her face or irises.
11
Moreover, the reasonable suspicion standard is similar to the reasonableness standard
proposed by the government—which already governs the conduct of law enforcement when
executing a search warrant, see, e.g., Dalia, 411 U.S. at 257—and has been applied by the Court
in the search warrant context, see Richards v. Wisconsin, 520 U.S. 385, 394–95 (1997) (holding
that a “no-knock” entry is justified where, based on the facts as they exist at the time of the
execution of the warrant, the police “have a reasonable suspicion that knocking and announcing
their presence, under the particular circumstances, would be dangerous or futile, or that it would
inhibit the effective investigation of the crime by, for example, allowing the destruction of
evidence”). Indeed, even in the absence of a warrant, the Supreme Court “has recognized that a
law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity
permits the officer to stop the person for a brief time and take additional steps to investigate
further.” Hiibel, 542 U.S. at 185. Here, of course, there is a warrant, issued on a showing of
probable cause to search both the premises and the Subject Devices found on the premises, so the
standard to be imposed governs merely the subsidiary showing to be made to allow law
enforcement to engage on-site in “additional steps to investigate further.”
5
Id.; see also Michigan
v. Summers, 452 U.S. 692, 703 (1981) (brief detention of occupants on, or in the immediate vicinity
of, premises represents “only an incremental intrusion on personal liberty when the search of the
house has been authorized by a valid warrant”).
6
5
This application did not present the question of the proper standard to apply when law enforcement seeks to compel
use of biometric features to access a digital device at a time other than during the search of a premises pursuant to a
search warrant, and the Court does not address that issue.
6
In two recent cases, the Supreme Court has addressed the warrant requirement as it applies to cell phones. Carpenter
v. United States held that law enforcement must get a warrant in order to access historical cell-site location information
from a phone; Riley v. California required a warrant to search the contents of a cell phone seized incident to arrest.
Carpenter, 585 U.S. __, __, slip op. at 22 (2018); Riley, 573 U.S. __, __, 134 S. Ct. 2473, 2495 (2014). Here, again,
the government has a warrant that authorizes search of a cell phone seized during its execution. The privacy interest
at issue here is not in the contents of the phone, but in the fingerprints or other biometric features the government
12
Using Hayes as its guide, the Court thus finds that, when attempting to unlock a telephone,
computer or other electronic device during the execution of a search warrant that authorizes a
search of the device, the government may compel the use of an individual’s biometric features, if
(1) the procedure is carried out with dispatch and in the immediate vicinity of the premises to be
searched, and if, at time of the compulsion, the government has (2) reasonable suspicion that the
suspect has committed a criminal act that is the subject matter of the warrant, and (3) reasonable
suspicion that the individual’s biometric features will unlock the device, that is, for example,
because there is a reasonable suspicion to believe that the individual is a user of the device.
7
Cf.
In re Application for a Search Warrant, 236 F. Supp. 3d 1066, 1070 (N.D. Ill. 2017) (denying
warrant on Fourth Amendment grounds where government sought authority “to seize any
individual at the subject premises and force the application of their fingerprints as directed by
government agents” where “request [was] made without any specific facts as to who is involved
in the criminal conduct linked to the subject premises, or specific facts as to what . . . device is
being employed”). Future government requests for authorization to compel the use of an
seeks to use. As discussed above, the Supreme Court and lower courts have repeatedly indicated that an individual
has a diminished privacy interest in these kinds of physical features.
7
Further, the government would be prohibited from using the Court’s authorization as a basis to coerce any individual
to consent to collection of their biometric features. See, e.g., Moran v. Burbine, 475 U.S. 412, 421 (1986)
(relinquishment of right to remain silent must be “voluntary in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception”); Bumper v. North Carolina, 391 U.S. 543, 550 (1968) (“When
a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant
has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where
there is coercion there cannot be consent.”); United States v. Dietrich, No. 4:13CR3087, 2014 WL 351961, at *1, 4
(D. Neb. Jan. 30, 2014) (finding that defendant “was induced to cooperate, but there was no unreasonable coercion or
duress caused by investigators” under the Fourth Amendment where law enforcement explained to individual that if
they “applied [for] and received a search warrant, and if they did not have a key, . . . they would use force to enter his
home”). Law enforcement is not absolved of its responsibility to act reasonably in executing a warrant merely because
the government has received court authorization to compel the use of an individual’s biometric features.
Circumstances that obtain during the execution may change the calculus, making an otherwise reasonable search
unreasonable.
13
individual’s biometric features as part of a search warrant seeking to seize evidence on digital
devices should comply with that standard.
8
B. Fifth Amendment
The Fifth Amendment provides, in relevant part, that “[n]o person . . . shall be compelled
in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Fifth
Amendment is intended to protect an accused “from having to reveal, directly or indirectly,
knowledge of facts relating him to the offense or from having to share his thoughts and beliefs
with the Government.” Doe v. United States, 487 U.S. 201, 213 (1988) (Doe II). The Supreme
Court has thus held that “[t]he word ‘witness’ in the constitutional text limits the relevant category
of compelled incriminating communications to those that are ‘testimonial’ in character.” United
States v. Hubbell, 530 U.S. 27, 34 (2000). Therefore, “[t]o qualify for the Fifth Amendment
privilege, a communication must be: (1) testimonial, (2) incriminating, and (3) compelled.” Hiibel,
542 U.S. at 189.
Here, the seizure of any incriminating information found on the phones or computers
discovered during the search of the premises would not violate the Fifth Amendment because the
“creation” of that information was voluntary and “not ‘compelled’ within the meaning of the
privilege [against self-incrimination].” Hubbell, 530 U.S. at 35–36; see also Virginia v. Baust, 89
Va. Cir. 267, 2014 WL 10355635, at *4 (Va. Cir. Ct. Oct. 28, 2014) (“The footage [on the phone]
. . . would not be protected under the Fifth Amendment because its creation was voluntary, i.e.,
8
While prior judicial authorization would not be required where the exigencies of the situation would make doing so
impossible, the government’s decision to seek such authorization in this case is consistent with the Supreme Court’s
instruction in Terry and McNeely that prior judicial authorization for searches and seizures must be sought whenever
practicable. See McNeely, 569 U.S. at 153 (noting that “some circumstances will make obtaining a warrant [to draw
blood for alcohol testing] impractical,” but refusing to adopt a per se rule that allows such testing without a warrant
in all drunk-driving cases); Terry, 392 U.S. at 20 (stating that “police must, whenever practicable, obtain advance
judicial approval of searches and seizures”). The Court therefore expects that, absent exigent circumstances, the
government will continue to seek prior authorization for the compelled use of an individual’s biometric features to
unlock digital devices even where the search of such devices is permitted by a warrant.
14
not compelled.”). Rather, the compulsion at issue under the Fifth Amendment is the compelled
use of the Subject’s biometric features to unlock the Subject Devices and gain access to
incriminating information that may be on them.In that sense, the government’s warrant was
obviously compulsive and was likely to be incriminating, insofar as the compelled use of the
biometric features may result in a “disclosure[] that the witness [would] reasonably believe[] could
be used in a criminal prosecution or could lead to other evidence that might be so used.” Kastigar
v. United States, 406 U.S. 441, 445 (1972); see also Baust, 89 Va. Cir. 267, 2014 WL 10355635,
at *2 (“[T]here is no question that a motion to compel is compulsive and the production of the
passcode or fingerprint would be incriminating.”). The question then is whether the compelled
use of the Subject’s biometric features can be deemed “testimonial.”
The Supreme Court has held that testimonial communications for purposes of the Fifth
Amendment include not only oral communications but also certain communicative acts. In
Hubbell, for example, the Court considered whether a witness’ response to a subpoena calling for
the production of eleven categories of documents could be deemed testimonial. 530 U.S. at 31.
There, when the target of the subpoena appeared before a grand jury he invoked his Fifth
Amendment privilege against self-incrimination and refused to state whether any responsive
documents were in his possession, custody, or control. Id. The prosecutor then produced a court
order requiring him to respond to the subpoena and granting him immunity to the extent allowed
by law. Id. The respondent thereafter produced over 13,000 documents in response to the
categories in the subpoena, the contents of which led to his prosecution for tax-related crimes and
mail fraud. Id. at 31–32. The Supreme Court held that the compelled response to the subpoena
was a violation of the respondent’s Fifth Amendment privilege, observing more generally that
the act of producing documents in response to a subpoena may have a compelled
testimonial aspect. We have held that “the act of production” itself may implicitly
15
communicate “statements of fact.” By “producing documents in compliance with
a subpoena, the witness would admit that the papers existed, were in his possession
or control, and were authentic.”
Id. at 36 (quoting Doe II, 487 U.S. at 209). The Court found that responding to the subpoena at
issue in Hubbell “could provide a prosecutor with a ‘lead to incriminating evidence,’ or ‘a link in
the chain of evidence needed to prosecute,’” and thus violated the respondent’s privilege against
self-incrimination. Id. at 42.
The Federal Public Defender equates the conduct at issue here to the production of
documents in response to the subpoena in Hubbell. It contends that the compelled use of biometric
features to unlock a phone or computer is “inherently testimonial” because it “would implicitly
communicate that the suspect possessed or controlled the device with incriminating evidence.”
Amicus Curiae Mem. at 3. However, the Hubbell Court emphasized that, in responding to the
subpoena, “[i]t was unquestionably necessary for respondent to make extensive use of ‘the
contents of his own mind’ in identifying the hundreds of documents responsive to the requests in
the subpoena.” 530 U.S. at 43. “The documents did not magically appear in the prosecutor’s
office like ‘manna from heaven.’ They arrived there only after respondent . . . took the mental and
physical steps necessary to provide the prosecutor with an accurate inventory of the many sources
of potentially incriminating evidence sought by the subpoena.” Id. at 42. The Court thus
analogized the respondent’s “assembly of those documents” to “telling an inquisitor the
combination to a wall safe,” rather than “being forced to surrender the key to a strongbox.” Id. at
43.
Admittedly, the line between testimonial and non-testimonial communications under the
Fifth Amendment is not crystal clear. Here, however, the compelled use of the Subject’s biometric
16
features is far more akin to the surrender of a safe’s key than its combination.
9
As other courts
have recognized, there will be no revelation of the contents of the Subject’s mind with the
procedure proposed by the government for collection of the Subject’s biometric features. Rather,
“[t]he government chooses the finger to apply to the sensor, and thus obtains the physical
characteristic—all without the need for the person to put any thought at all into the seizure.” In re
Search Warrant Application for [Redacted Text], 279 F. Supp. 3d 800, 804 (N.D. Ill. 2017); see
also Minnesota v. Diamond, 905 N.W.2d 870, 876 (Minn. 2018) (“[The defendant’s] act of
providing a fingerprint to the police was not testimonial because the act did not reveal the contents
of [his] mind.”); Baust, 89 Va. Cir. 267, 2014 WL 10355635, at *4 (“The fingerprint . . . does not
require the witness to divulge anything through his mental processes.”). Indeed, the use of the
fingerprint is much more like the government’s compelled use of other “physical characteristics”
of criminal suspects that courts have found non-testimonial even when they are used for
9
The Federal Public Defender objects to analogizing the seizing of a key from a suspect to open a strongbox, which
is a non-testimonial act, to the use of biometric features to unlock a device, arguing that “[a] physical key does not
necessarily connote possession, control, or prior access the way a fingerprint or facial technology does” because “[o]ne
can borrow, find, or steal a physical key.” Amicus Curiae Mem. at 7. But surely the possession of a key that turns a
strongbox’s lock denotes present access, from which prior access can be inferred (and argued in a prosecution). The
fact that the possessor of the key has a more credible counter-argument—that a key may be borrowed, found, or stolen,
an argument that would be difficult to maintain regarding a fingerprint—speaks to the incriminatory nature of the
possession of the object: that possessing a borrowed, found, or stolen key to a strongbox may have a weaker
incriminatory consequence than would bearing a fingerprint that opens a device. But the notion that one might have
more incriminatory power than the other is not relevant to whether the compelled use of a fingerprint is any more
testimonial than the compelled use of a key; “the requirement that the compelled communication be ‘testimonial’” is
“separate [from the] requirement that the communication be ‘incriminating.’” Doe II, 487 U.S. at 208 n.6; see also
id. (“If a compelled statement is ‘not testimonial and for that reason not protected by the privilege, it cannot become
so because it will lead to incriminating evidence.’” (quoting In re Grand Jury Subpoena, 826 F.2d 1166, 1171 n. 2
(2d Cir. 1987) (Newman, J., concurring))); In re Search Warrant Application for [Redacted Text], 279 F. Supp. 3d at
805 (“When deciding whether an act is testimonial or not, the governing case law simply does not take into account
the power or immediacy of the incriminating inference . . . .”). Moreover, to the extent that the Federal Public Defender
is concerned that the fact that using an individual’s fingerprint to unlock a device leads “necessarily” to the conclusion
that the individual possesses or controls the device, its rhetoric is overstated. Digital devices can be set up so that
more than one individual’s fingerprints will unlock them, see Affidavit, ¶ 59.b (noting that some digital devices allow
users to register multiple fingerprints to unlock devices); see also In re Search Warrant Application for [Redated
Text], 279 F. Supp. 3d at 802 (same), providing the bearer of the fingerprint similar non-inculpatory explanations to
the holder of the key: although I have access to it, that device (or that strongbox) and its contents are not mine. And
so, the distinction amicus makes between a fingerprint and a key is simply not helpful to answering the question at
hand.
17
investigatory purposes rather than solely for identification. See, e.g., Doe II, 487 U.S. at 215–16
(holding compelled signature not testimonial); Dionisio, 410 U.S. at 7 (holding voice exemplar
not testimonial); Gilbert v. California, 388 U.S. 263, 266–67 (1967) (holding handwriting
exemplar not testimonial); United States v. Wade, 388 U.S. 218, 222–23 (1967) (holding use of
voice exemplar in line up not testimonial); Schmerber, 384 U.S. at 765 (holding blood sample to
test for alcohol content not testimonial, and noting “both federal and state courts have usually held
that it offers no protection against compulsion to submit to fingerprinting, photographing, or
measurements, to write or speak for identification, to appear in court, to stand, to assume a stance,
to walk, or to make a particular gesture”); Holt v. United States, 218 U.S. 245, 252–53 (1910)
(trying on particular clothing not testimonial); Williams v. Schario, 93 F.3d 527, 528–29 (8th
Cir.1996) (holding fingerprints are non-testimonial evidence and do not therefore implicate
privilege against self-incrimiation). The “distinction which has emerged” as a “helpful framework
for analysis” is that the Fifth Amendment “privilege is a bar against compelling ‘communication’
or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or
physical evidence’ does not violate it.” Schmerber, 384 U.S. at 764.
For example, in Schmerber the Supreme Court held that “not even the shadow of
testimonial compulsion or enforced communication by the accused was involved” in drawing a
defendant’s blood and testing it for blood-alcohol level, which was then used to convict him of
driving under the influence. Id. at 765. Arguably, the blood in Schmerber “communicated” as
much as, if not more than, the biometric features at issue here might—that the blood was the
defendant’s and that he had been drinking, for example—but its compelled collection was
nevertheless deemed non-testimonial. Indeed, the Court noted that, as the defendant’s
“participation, except as a donor, was irrelevant to the results of the test,” his “testimonial
18
capacities were in no way implicated.” Id. It is difficult to make a principled distinction between
the donation of blood at issue in Schmerber and the Subject’s passive “donation” of fingerprints
(or other biometric features) at issue here.
Similarly, in Doe II, the Supreme Court held that compelling a defendant to sign a directive
consenting to the disclosure of his bank accounts, which applied to “any and all accounts over
which [he] had a right of withdrawal, without acknowledging the existence of any such account”
was not testimonial under the Fifth Amendment. 487 U.S. at 204, 215–16. The Court reasoned
that the consent directive itself did not “make reference to a specific account,” but spoke “only . .
. in the hypothetical.” 487 U.S. at 215. For that reason, “[b]y signing the form, [the defendant]
ma[de] no statement, explicit or implicit, regarding the existence of a foreign bank account or his
control over any such account.” Id. at 215–16. That is, compelling a suspect’s signature is not a
testimonial act even when it can be used to further an investigation, because it does not reveal “any
knowledge he might have.” Id. at 217 (quoting Wade, 388 U.S. at 222).
Amicus contends that Doe II supports its argument because, while the defendant in that
case “was not acknowledging control of any particular bank account,” here, “the compelled access
would reveal exactly what particular device the person possessed or controlled.”
10
Amicus Curiae
Mem. at 4. But when law enforcement took the Doe petitioner’s signed consent directive to a bank
at which he had an account, the directive would communicate control of a particular bank account
at that point. To be sure, at that point, the petitioner would likely not be present, and, at oral
argument, it became clear that the Federal Public Defender is troubled by the immediacy of any
identification evidence here: law enforcement will choose the Subject’s finger(s) to place on the
touch pad (for example) of a Subject Device, and, if it unlocks, instantly know that the Subject had
10
As noted in footnote 9, supra, that position overstates the case.
19
access to it. But, “[w]hen deciding whether an act is testimonial or not, the governing case law
simply does not take into account the power or immediacy of the incriminating evidence acquired
from the physical characteristic.” In re Search Warrant Application, 279 F. Supp. 3d at 805. After
all, the Supreme Court has held that the donning of a blouse to test whether accused fits into it and
the provision of an accused’s voice exemplar to ascertain whether a witness recognizes it—
identification determinations that would occur in short order, if not immediately—are not
inherently testimonial. See Holt, 218 U.S. at 252–53; Wade, 388 U.S. at 222–23; see also In re
Search Warrant Application, 279 F. Supp. 3d at 805 (“In essence, applying the fingerprint to the
Touch ID sensor is no different than watching someone put on a shirt to see—immediately—if it
fits or listening to someone speak in a live lineup and deciding—immediately—whether the voice
matches the suspect’s.”). In sum, the Fifth Amendment privilege is not triggered where, as here,
“the [g]overnment merely compels some physical act, i.e., where the individual is not called upon
to make use of the contents of his mind.” In re Grand Jury Subpoena Duces Tecum Dated March
25, 2011, 670 F.3d 1335, 1345 (11th Cir. 2012).
That rule dooms the Federal Public Defender’s “decryption” argument, as well. There, it
contends that the government gaining access to the Subject Devices using the Subject’s fingerprint
or other biometric feature is testimonial under the Fifth Amendment because it not only unlocks
the device but translates encrypted data on it “into a format that can be used and understood by the
government.” Amicus Curiae Mem. at 4. Thus, amicus argues, the use of the Subject’s fingerprint
“actually assembles the information for law enforcement,” like the Supreme Court found
problematic in Hubbell. Id. at 5 (emphasis added). But, again, the government’s compelled use
of the Subject’s biometric features in order to decrypt the contents of the Subject Devices will not
require the Subject to make any use of the contents of his mind. Similarly, there has been no
20
showing here that the resulting process of decryption requires any mental effort by the Subject;
11
rather, it would appear that the decryption process is accomplished by the machine—that is, by the
digital device and the software on it.
Hubbell and In re Subpoena Duces Tecum are instructive. In Hubbell, the Supreme Court
held that the subpoena respondent’s “assembly” of information for the government—a concept
that amicus invokes in its argument—can constitute a testimonial act of production. However, the
respondent’s “assembly of literally hundreds of pages of material in response to a request for ‘any
and all documents reflecting, referring, or relating to any direct or indirect sources of money or
other things of value received or provided to’ an individual or members of his family during a 3-
year period,” Hubbell, 530 U.S. at 41, required significantly more than is at issue here—and not
because it involved physical documents rather than digital data. For example, it required the
witness to cull through materials to determine which were responsive and “was tantamount to
answering a series of interrogatories asking a witness to disclose the existence and location of
particular documents fitting certain broad descriptions.” Id. The biometric feature collection
process outlined in the Affidavit requires no comparable cognitive exertion by the Subject here.
The Eleventh Circuit in In re Subpoena Duces Tecum found that compelled decryption of
information on a number of digital devices did violate the Fifth Amendment. 670 F.3d at 1352–
11
Neither party presented a clear description of the state of data on a digital device before and after it is unlocked,
failing to explain whether application of a biometric feature merely unlocks the device or actually decrypts the data
on it. Nor is the case law particularly helpful in this regard. For example, in In re Subpoena Duces Tecum, the court
simply states that the target was ordered “to produce the unencrypted contents of [certain] hard drives,” that “the
decryption and production of the hard drives would require the use of Doe’s mind,” and referring in passing to a
“decryption password,” without clearly defining or explaining what is meant by “decryption,” the manner in which
the decryption would be accomplished, or how, precisely, it would involve the contents of the target’s mind. 670 F.3d
at 1341, 1346. Nevertheless, for purposes of the analysis in this Opinion, the Court assumes that information on any
of the Subject Devices is otherwise “encrypted” and that unlocking the device also “decrypts” its contents. The Court
does not assume, however, that the Subject has anything to do with the decryption process other than providing the
biometric feature that unlocks the device.
21
53. That case is readily distinguishable from the facts in this case, however. As the Eleventh
Circuit found, the decryption of information “require[d] [the witness] to use a decryption
password,” and thus to “use . . . the contents of [his] mind” in an action “akin to requiring the
production of a combination.” Id. at 1346; see also Hubbell, 530 U.S. at 43 (indicating that
requiring production of a combination to a wall safe would be testimonial); In re Boucher, No.
2:06-mj-91, 2007 WL 4246473, at *6 (D. Vt. Nov. 29, 2007) (“The password is not a physical
thing. If [the witness] knows the password, it exists only in his mind. . . . It is pure testimonial
production . . . .”), rev’d on other grounds, 2009 WL 424718 (D. Vt. Feb. 19, 2009); Massachusetts
v. Gelfgatt, 11 N.E.3d 605, 614 (Mass. 2014) (“This is not simply the production of real or physical
evidence like a blood sample or a handwriting exemplar. Rather, the defendant’s act of entering a
decryption key would be a communication of his knowledge about particular facts that would be
relevant to the Commonwealth’s case.”); but see Florida v. Stahl, 206 So. 3d 124, 134 (Fla. Dist.
Ct. App. 2016) (holding compelled production of passcode non-testimonial). Here, as discussed
above, the Subject would be required to communicate nothing: law enforcement will present the
device and choose which of the Subject’s fingers (or other biometric features) to use in an attempt
to unlock it. The decryption is then accomplished without any further interaction with the Subject;
it is accomplished not by the mental effort of the Subject but by the device itself. Like the
unlocking of the device, the decryption could be effectuated even if the Subject were “asleep—
and thus by definition not communicating anything.”
12
In re Search Warrant Application, 279 F.
Supp. 3d at 804.
12
At oral argument, the Federal Public Defender posited that one whose cellphone can be accessed and decrypted
using a fingerprint has used the contents of his or her mind to set up that security feature and that, therefore, the
compelled unlocking via the fingerprint a fortiori reveals the contents of his or her mind. The problem with that
argument is that configuring the device to use the fingerprint (or face or iris) to unlock and decrypt it was not
compelled; only the present use of the fingerprint has been compelled. See, e.g., United States v. Doe, 465 U.S. 605,
611–12 & n.9 (1984) (voluntarily-produced documents cannot be said to contain compelled testimony); Fisher v.
United States, 425 U.S. 391, 409–10 (1976) (“[T]he preparation of all of the papers sought in these cases was wholly
22
* * * * *
Like other courts addressing similar issues, this Court is mindful of the important privacy
interests at stake when government accesses information on a digital device. See, e.g., Carpenter,
585 U.S. at __, slip op. at 10 (“[C]ell phone location information is detailed, encyclopedic, and
effortlessly compiled.”); Riley, 573 U.S. at __, 134 S. Ct. at 2485 (“Cell phones . . . place vast
quantities of personal information literally in the hands of individuals.”); In re Search Warrant
Application, 279 F. Supp. 3d at 806 (noting “the intensity of the privacy interests at stake in
accessing smart devices”). However, even when presented with legal questions impacted by
changing technology that has triggered significant modifications of individuals’ behavior, a lower
court cannot ignore or rewrite the constitutional principles the Supreme Court has articulated.
Rather, this Court’s job is to interpret and apply those precedents as faithfully as possible. See,
e.g., In re Search Warrant Application, 279 F. Supp. 3d at 806–07 (“[A]lthough Riley certainly
instructs courts to avoid mechanical application of legal principles in the fact of technological
advances, the constitutional text dictates the result here”). Here, those principles establish that the
warrant and authorization requested by the government and issued by the Court violates neither
the Fourth Amendment’s requirements nor the Fifth Amendment’s self-incrimination clause.
13
voluntary, and they cannot be said to contain compelled testimonial evidence . . . .”); In re Boucher, 2007 WL 4246473,
at *3 (“Both parties agree that the contents of the laptop do not enjoy Fifth Amendment protection as the contents
were voluntarily prepared . . . .”). It therefore is irrelevant that the individual who set up the device engaged the
contents of his or her mind at an earlier point. If law enforcement compels disclosure of a combination, that disclosure
is testimonial not because the user of the safe previously chose that combination, but because, in the compelled
revelation of the combination, that individual is using the contents of his or her mind. See, e.g., In re Boucher, 2007
WL 4246473, at *6 (“The password is not a physical thing. If [the witness] knows the password, it exists only in his
mind. . . . It is pure testimonial production . . . .”).
13
In its opening memorandum, the government argues that its request regarding the use of biometric features was
authorized under Rule 41 of the Federal Rules of Criminal Procedure, which governs search and seizure warrants.
Government Mem. at 12–14. Amicus did not address that question in its opposition. The Court need not decide that
question, however, because, even if Rule 41 does not countenance an authorization such as this, the government is
correct that the All Writs Act, 18 U.S.C. § 1651, does. Government Mem. at 14 n.7. For example, in United States
v. Apple MacPro Computer, the Third Circuit indicated that the All Writs Act authorized an order requiring a suspect
in a child pornography case to decrypt digital devices subject to search during the execution of a search warrant
