N.D. of California denies application for search warrant to seize and compel opening of a cell phone finding 4th Amendment and 5th Amendment privileges apply.

In this case, the Government applied for a search warrant pursuant to an extortion investigation. Suspects used Facebook Messenger and made threats to release an embarrassing video of a person unless they were paid.

The Government’s application asked to search a house and seize computers, phones, and other digital devices. This portion of the application was granted. The Government’s application went further, asking for the authority to compel any individual present at the time of the search to press a finger or utilize other biometric features (facial or iris recognition).

The District Court found that this request violates both the Fourth and Fifth Amendments. This request was denied. The Court started its analysis by stating that there was a moral imperative to consider the Fifth Amendment especially because these suspects are unrepresented.

In conducting its Fourth Amendment analysis, even though there was probable cause to enter the home, the court fount the forced unlocking of the phone based on biometric features to be overbroad and the request to search every digital device was equally overbroad. The Court stated that any resubmission must be limited to those devices reasonably believed by law enforcement to be owned or controlled by the two suspects identified in the affidavit.

Moving on to the Fifth Amendment issue, the Court found the proper inquiry is whether an act would require the compulsion of a testimonial communication that is incriminating, citing Fisher v. United States, 425 U.S. 391, 409, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). Using Carpenter, the Court found this to be testimonial under the Fifth Amendment. The Court specifically stated that the act of communicating the passcode is testimonial, as “[t]he expression of the contents of an individual’s mind falls squarely within the protection of the Fifth Amendment.” (Doe v. United States, 487 U.S. 201, 219, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988) (Stevens, J., dissenting) (citing Boyd v. United States, 116 U.S. 616, 633-635, 6 S. Ct. 524, 29 L. Ed. 746 (1886); Fisher v. United States, 425 U.S. 391, 420, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976)); United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010); Commonwealth. v. Baust, 89 Va. Cir. 267 (2014).

Since giving a passcode is testimonial, the Court then turned to the subject of whether the act of compelling a suspect to use a finger, thumb, iris, or other biometric feature to unlock a digital device is testimonial. The Court said yes, citing Doe and In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1343.

The Court specifically found that the use of a thumb, etc. is the functional equivalent of a passcode because they serve the same purpose. Further, the reason the act of forced use of a thumb is different than a fingerprinting of a suspect at a police station is because the “act concedes that the phone was in the possession and control of the suspect, and authenticates ownership or access to the phone and all of its digital contents.” See also,┬áIn re Application for a Search Warrant, 236 F. Supp. 3d 1066. The Court specifically stated that a forced compulsion is an abuse of power and unconstitutional.

The Court further rejected the notion that the Foregone Conclusion Doctrine Applies. This is because the Government here cannot show prior knowledge of the existence or the whereabouts of the documents ultimately produced inresponse to a subpoena. The Court also stated that mobile phones are subject to different treatment than more traditional storage devices, such as safes, and should be afforded more protection.

The case is In re Search of a Residence in Oakland, 354 F. Supp. 3d 1010, 2019 U.S. Dist. LEXIS 5055, 2019 WL 176937 (N.D. Cal.) January 10, 2019.

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