The government may also seek a search warrant for a cell phone that requires use of biometric information to open it, as long as it happens at the time of execution. There is no reasonable expectation of privacy in fingerprints and one’s face. As to the Fifth Amendment, the analogy is more apt that the target is supplying a key to a lock rather than a combination to a safe. In the Matter of the Search of * * * Washington, District of Columbia, 2018 U.S. Dist. LEXIS 109572, 2018 WL 3155596 (D.D.C. June 28, 2018) (the FPD was asked to participate as amicus):
The government filed an application for a search warrant in this matter that sought to search a premises in the District of Columbia and to seize, among other things, evidence on cellphones and computers found on the premises which reasonably could contain evidence of the offenses under investigation. In addition, the government sought authorization from the Court to “compel biometric features of an individual believed to have perpetrated the alleged offenses under investigation [the “Subject”] in connection with any biometric recognition sensor-enabled” digital device falling within the scope of the warrant. Government Mem. at 1. In English: the government sought an order from the Court permitting it to attempt to unlock cellphones and computers falling within the scope of the warrant through the compelled use of the Subject’s physical characteristics—i.e., his fingerprints, face, or irises. Because the compelled unlocking of digital devices is an emerging area of the law raising both Fourth and Fifth Amendment issues, none of which have been addressed in this District, the undersigned appointed as amicus curiae the Federal Public Defender for the District of Columbia (“amicus” or “Federal Public Defender”) to submit its views on the lawfulness of the government’s request. 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.
. . .
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. 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 individual’s biometric features as part of a search warrant seeking to seize evidence on digital devices should comply with that standard.
. . .
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 features is far more akin to the surrender of a safe’s key than its combination. 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 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-incrimination). 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 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).
