In re Search Warrant Application for [Redacted Text]

Citation279 F.Supp.3d 800
Decision Date18 September 2017
Docket NumberCase No. 17 M 85
Parties In the MATTER OF the SEARCH WARRANT APPLICATION FOR [REDACTED TEXT]
CourtU.S. District Court — Northern District of Illinois

AUSA, Grayson Sang Walker, U.S. Attorney's Office, Chicago, IL, for Plaintiff.

MEMORANDUM OPINION

Honorable Edmond E. Chang, United States District Judge

The United States seeks review of the magistrate judge's denial of one aspect of the government's search-warrant application in this investigation: authorization to require the four residents of a home to apply their fingers and thumbs (as chosen by government agents) to the fingerprint sensor on any Apple-made devices found at the home during the search. Ordinarily, review of the magistrate judge's decision on a warrant application would be ex parte. But because the magistrate judge's thoughtful opinion addressed a novel question on the scope of the Fifth Amendment's privilege against self-incrimination, the Court invited the Federal Defender Program in this District to file an amicus brief to defend the decision (the government did not object to the amicus participation). The Court is grateful for the Federal Defender Program's excellent service in fulfilling this request.1 After reviewing the competing filings and the governing case law, the Court holds that requiring the application of the fingerprints to the sensor does not run afoul of the self-incrimination privilege because that act does not qualify as a testimonial communication.

I.

In the search-warrant application, the government seeks authority to search a home for evidence of the possession and receipt of child pornography. The affidavit in support of the application spells out the facts that justify believing that at least one Apple iPhone and iPad will be found at the home. The magistrate judge found that the application established probable cause to search the home, as well as to seize electronic storage media (like computers, smartphones, and iPads) that could be used to store child pornography. R. 1 at 1. That probable-cause finding is not at issue in this review, and indeed the Court agrees with the finding. The magistrate judge also implicitly found that, because there are only four residents at the home, there is probable cause to believe that a device found there would belong to one of those residents, especially if that person is present during the search when the device is found. See R. 1 at 2. That probable-cause finding too is not at issue in this review.2

Going beyond the seizure of the devices, however, the government also asks for authorization to seize, in effect, the four residents in order to apply their fingers (including thumbs) to Apple-made devices (here, most likely iPhones and iPads) found at the home. Affidavit ¶ 41. What animates this request is that the government does not know, of course, what the passcodes are to unlock any Apple devices found at the home. Affidavit ¶ 38. Data on Apple devices are likely encrypted, so without some way to unlock the device, the government will not be able to access and search it. Affidavit ¶ 38. But some iPhone and iPad models allow users to unlock the device by using a fingerprint instead of entering a passcode. Affidavit ¶ 35. Users can register up to five fingerprints for this unlocking feature, known as (on Apple devices) Touch ID. Affidavit ¶ 36. When a registered fingerprint is pressed against a sensor on the device, the device unlocks. Affidavit ¶ 36.

But there's a time-urgency with trying Touch ID to unlock a device. If more than 48 hours have passed since the last time the device was unlocked, Touch ID will not work—the passcode must be entered. Affidavit ¶ 37. If a user remotely locks the device, Touch ID will not work. Id. If a device has been turned off or restarted, Touch ID will not work. Id. So to take advantage of this potential way of unlocking an iPhone or iPad, the government asks that the four residents of the home—if they are present during the search—be required to press fingers, chosen by the government, to the Touch ID sensor:

... I request that the Court authorize law enforcement to press the fingers (including thumbs) of [the four residents] at the Subject Premises to the Touch ID sensor of any Apple brand device(s), such as an iPhone or iPad, found at the Subject Premises for the purpose of attempting to unlock the device via Touch ID in order to search the contents as authorized by the requested warrant.

Affidavit ¶ 41. There is a practical limitation on the number of fingers that the agents can try, because Touch ID will not unlock the device after five failed attempts to use Touch ID—after that, the passcode must be entered. Affidavit ¶ 37.

As noted earlier, the magistrate judge denied authorization for the fingerprint seizure, holding that the compelled pressing of the fingerprint against the Touch ID sensor would violate the Fifth Amendment's privilege against self-incrimination. The magistrate judge reasoned that providing the fingerprint under these circumstances was akin to implicitly communicating that the device was within that person's possession and control. R. 1 at 17–18. After the denial of the fingerprint-seizure authority, the government sought review under Local Criminal Rule 50.4(a).3

II.

The privacy concerns at stake in government access to smart devices are intense, both because of the nature of the information that people store on those devices—pretty much every kind of information there is, from personal, financial, and professional—and because of the sheer volume of information that can be stored on them. But the constitutional text, as interpreted by governing case law, draws a distinction between compelling a person to communicate something to the government versus compelling a person to provide some physical characteristic as part of an investigation. Indeed, as the Supreme Court has explained, this distinction renders what is widely known as the "privilege against self-incrimination" as something of a misnomer. United States v. Hubbell , 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) ("[t]he term ‘privilege against self-incrimination’ is not an entirely accurate description of a person's constitutional protection").

Specifically, the constitutional text on which the right is premised only prevents the government from compelling a person from being a "witness" against himself. U.S. Const., amend. V. The Fifth Amendment provides, in pertinent part: "No person ... shall be compelled in any criminal case to be a witness against himself." Id. (emphasis added). Witnesses provide testimony , so that specifically is the forbidden compulsion: the government cannot force someone to provide a communication that is "testimonial" in character. Hubbell , 530 U.S. at 34, 120 S.Ct. 2037. With that limit in mind, the Supreme Court has distinguished between compelling a communication versus compelling a person to do something that, in turn, displays a physical characteristic that might be incriminating. Id. at 35, 120 S.Ct. 2037. For examples, the Supreme Court has held that compelling displays of the following physical features do not violate the privilege against self-incrimination:

• Putting on a shirt to see whether it fit the defendant. Holt v. United States , 218 U.S. 245, 252–53, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).
• Providing a blood sample to test for alcohol content. Schmerber v. California , 384 U.S. 757, 763–65, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
• Submitting to the taking of fingerprints or photographs. SeeSchmerber , 384 U.S. at 764, 86 S.Ct. 1826 ; United States v. Wade , 388 U.S. 218, 223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
• Providing a voice exemplar, that is, being compelled to say certain words spoken by a suspect so that the victims of a bank robbery could compare the defendant's voice to that of the bank robber. United States v. Wade , 388 U.S. 218, 222–23, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
• Providing a handwriting exemplar, that is, being compelled to write words in order to compare them with the writing on a bank-robbery demand note. Gilbert v. California , 388 U.S. 263, 266–67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

The items on this list have a common thread: each of the compelled acts provided a physical characteristic of some sort, and nothing that the person did in performing the act itself comprised a communication by that person. There is no communicative expression by a suspect in putting on a shirt, giving a blood sample, having a fingerprint or photograph taken, or providing a voice or handwriting sample. To be sure, some of the compelled acts could have—and indeed, ordinarily do have—a communicative aspect when not performed in compliance with a law-enforcement directive. Some shirts have messages, people convey their moods and express ideas about themselves in photographs, and of course speaking and writing are fundamental forms of communication. But when a person does those things in compliance with an order to do so, we understand that the person is only providing a physical characteristic, not expressing themselves.

The same holds true for the fingerprint seizure sought by the government here. As noted earlier, and worth emphasizing again, the government agents will pick the fingers to be pressed on the Touch ID sensor, Affidavit ¶ 39 n.9, ¶ 41, so there is no need to engage the thought process of any of the residents at all in effectuating the seizure. The application of the fingerprint to the sensor is simply the seizure of a physical characteristic, and the fingerprint by itself does not communicate anything. This reasoning has been applied by the very few cases that so far have addressed the issue. State v. Diamond , 890 N.W.2d 143, 150–51 (Minn. Ct. App. 2017), review granted , Case No. A15–2075 (Minn. Mar. 28, 2017); Commonwealth v. Baust , 89 Va. Cir. 267, 2014 WL 10355635, at *4 (Va. Cir. Ct. Oct. 28, 2014).

Against this conclusion, the amicus argues that...

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