District Court Rolls Back Magistrate's Decision, Says Compelled Fingerprint Product Isn't A Fifth Amendment Issue

from the SHOW-US-YOUR-HANDS! dept

So much for the Fifth Amendment. At least in Idaho, anyway. Back in January, a magistrate judge rejected the government's attempt to force a suspect to unlock a seized phone using his fingerprints. The judge found the government's request to be a violation of two rights -- the Fifth Amendment protection against compelling a defendant to testify against themselves -- and the Fourth Amendment, since the government hadn't shown a connection between the accused and the seized device.

As the magistrate pointed out, the government could not rely on "foregone conclusion" arguments because it had failed to develop any foregone conclusions. The warrant itself said the government was seeking to search the phone for "indicia of ownership" -- something the government should have been able to plausibly allege long before it started asking the court to compel the suspect to unlock the device.

The judge said the government's application lacked a lot of info it needed to pursue this next step.

The applicant avers that, when questioned at the residence at the time the earlier search warrant was executed, the individual told law enforcement his/her phone was in the bathroom. A phone was found in a bathroom, and the application implies that the individual was not in the bathroom when that statement was made. But three other phones were also located during the search. There is no specific information about how many bathrooms were in the residence. There is no information about whether the individual lives alone or whether anyone else lives or was in the residence at the time of the search. To be clear, none of these facts are determinative of the Court’s conclusion in this case. But they do illustrate that any connection between the individual and the phone at issue here is more tenuous than it might be under other circumstances.

Given the government's inability to tie the suspect to the seized phone, it's absolutely astonishing the district court has decided to reverse the magistrate's decision. (h/t Orin Kerr)

The court's reversal comes to exactly the opposite conclusion using exactly the same information the government presented to the magistrate judge. The government's inability to conclusively tie the phone recovered from the bathroom to the suspect is now, somehow, more than enough info to justify the compelled production of fingerprints. From the decision [PDF]:

The Government further represented in its application for the additional warrant that it already knew this particular cellphone belonged to the individual who was subject to the warrant because the individual stated—when questioned at his residence by police officers executing the warrant—that his phone was in the bathroom where he had been just prior to answering the door. The Google Pixel 3 XL cellphone was subsequently found in that bathroom.

A phone found in a bathroom is now the phone in the bathroom, making all those Fourth and Fifth Amendment concerns vanish into the ether.

But what's now in the ether may not matter -- at least for this phone. The precedent will be helpful but it's too late to do much about the seized phone, as the court points out.

The ability to unlock a cellphone with a fingerprint (biometric encryption) expires after 48 hours of not unlocking it. At that point, a passcode of some type must be used. Here, it took the Magistrate Judge a few days to issue the order denying the warrant1 and then took the Government eight days to file its motion for review. Consequently, any decision by the court in this case will have no impact on this case. The Government simply can no longer unlock the cellphone with a fingerprint. The issue is, therefore, moot under County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).

The government doesn't want the issue mooted. It wants some precedent, or at least a ruling it can use to persuade magistrates to approve potential Constitutional violations. The government argues contrasting rulings from magistrate judges on compelled product requests creates a "split" the district court must resolve.

The court declines to act on any perceived split here, presumably to the government's chagrin.

[T]he Government has not cited to a single written decision—and none exists to the Court’s knowledge—where a magistrate judge, or any judge from this District, has held that biometric data relating to a cellphone can be obtained by a warrant despite either Fourth Amendment or Fifth Amendment concerns. The mere fact that a magistrate judge has signed search warrants that permitted law enforcement to use a person’s biometrics to unlock electronic devices does not mean that the magistrate judge has had the opportunity to carefully and meaningfully decide the issue raised in this case. After all, the very ex parte nature of applications for search warrants does not lend itself to issues being raised as part of the process. It is not clear to this Court that there is a reasoned split of opinion between the magistrate judges in this District. This Court does not rely on the “split of authority” exception to address this issue.

That's the good news. The government does not have a blank check to compel fingerprint production. In this case, however, the court says the government isn't compelling the production of anything testimonial. But this is only due to the method the government says it will deploy.

Where, as here, the Government agents will pick the fingers to be pressed on the Touch ID sensor, there is no need to engage the thought process of the subject 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. It is less intrusive than a forced blood draw. Both can be done while the individual sleeps or is unconscious. Accordingly, the Court determines—in accordance with a majority of Courts that have weighed in on this issue—that the requested warrant would not violate the Fifth Amendment because it does not require the suspect to provide any testimonial evidence.

Even if the government does nothing more than pick a random finger and apply it, it's using the suspect's body in an attempt to determine something it should have known before seeking compelled production. In this case, it's an undetermined number of "fingers," which suggests the government can keep trying until the device is unlocked or it runs out of fingers.

The government is still searching for "indicia of ownership" and is hoping placing the suspect's fingers on the seized phone will provide it with information the suspect knows, but the government doesn't. Whether or not the government can do this under the Fifth Amendment comes down to its "foregone conclusions," but the government doesn't appear to have one of those to work with.

The district court has turned the government's attempt to find out who owns the seized phone into a foregone conclusion by overriding the magistrate's determination on this issue. This won't set precedent in Idaho but it does indicate the district level will give the government the benefit of the doubt in cases like these, which lowers the bar for acceptable violations of Constitutional rights.

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Filed Under: 4th amendment, 5th amendment, fingerprints, magistrate judge