As far as I can tell, the United States District Court for the District of Columbia appears to be the first court in the nation that grappled with a search issue of a phone in our now post-Carpenter world. The case does not directly implicate Carpenter, but it is a issue of importance that I felt was worthy to cover here.
Imagine a situation where the feds get a warrant to open a phone and go through the contents. Imagine there’s probable cause and a judge is convinced to sign the warrant. The feds confiscate the phone and find that they can’t open it. They find that they can open it if they have the subject owner of the phone contribute his fingerprint to biometrically open the phone.
What then? What’s the legal standard to compel compliance to open the phone?
The District Court for the D.C. decided 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.”
The court held that future government requests for authorization to compel the use of an individual’s biometric features as part of a search warrant seeking to seize evidence on digital devices should comply with that standard.
Unlike the U.S. Supreme Court cases of Riley (contents of the phone) and Carpenter (contents of cell-site location information data), the privacy interest at issue here is in the fingerprints or other biometric features the government seeks to use. Hence, the court set a reasonable suspicion standard instead of a probable cause standard to compel the use of the user’s biometrics to open the phone because the court maintains that an individual has a diminished privacy interest in these kinds of physical features.
This case, the cases the Court cites, and cases in the future that will cite this case are mandatory reading when confronted with this problem.
The case is In re Search of (Name redacted), 2018 U.S. Dist. LEXIS 109572, 2018 WL 3155596 Case No. 18-SW-0122