The district court granted the initial search warrant based on the showing of probable cause, but then it denied a second application to force the owner to open it. The compelled use of biometrics to unlock the phone violates the Fifth Amendment. In the Matter of the Search of a White Google Pixel 3XL Cell Phone, 2019 U.S. Dist. LEXIS 83300 (D. Idaho May 8, 2019):
B. Fifth Amendment Analysis
Under the Fifth Amendment, no person “shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend V. It is intended “to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.” Doe v. United States, 487 U.S. 201, 213, (1988). “The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486 (1951). “The values protected by the Fourth Amendment . . . substantially overlap those the Fifth Amendment helps to protect.” Schmerber v. California, 384 U.S. 757, 767 (1966) (overruled on other grounds by Missouri v. McNealy, 569 U.S. 141 (2013)).
“There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant.” Andresen v. Maryland, 427 U.S. 463, 474 (1976) (quoting Gouled v. United States, 255 U.S. 298, 309 (1921)). However,
“A party is privileged from producing the evidence but not from its production.” Johnson v. United States, 228 U.S. 457, 458 (1913). This principle recognizes that the protection afforded by the Self-Incrimination Clause of the Fifth Amendment “adheres basically to the person, not to information that may incriminate him.” Couch v. United States, 409 U.S. 322, 328 (1973). Thus, although the Fifth Amendment may protect an individual from complying with a subpoena for the production of his personal records in his possession because the very act of production may constitute a compulsory authentication of incriminating information, see Fisher v. United States, … a seizure of the same materials by law enforcement officers differs in a crucial respect the individual against whom the search is directed is not required to aid in the discovery, production, or authentication of incriminating evidence.
Id. at 473–474.
Moreover, “the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications.” Schmerber, 384 U.S. at 764. To qualify for the privilege, a communication must be (1) testimonial, (2) incriminating, and (3) compelled. Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cnty., 542 U.S. 177, 189 (2004). Each prong is considered in turn.
1. Testimonial Communication
…
For either purpose, compliance with a warrant authorizing an attempt by law enforcement to unlock the phone with the individual’s fingerprints inescapably requires a compelled testimonial communication because the individual would provide a “compulsory authentication of incriminating information” and would “aid in the discovery, production, or authentication of incriminating evidence.” Andresen, 427 U.S. at 474.
2. Self-incrimination
…
Such reasoning echoes the holding in In re Application for a Search Warrant, 236 F. Supp. 3d 1066 (N.D. Ill. Feb. 16, 2017), where the court held that providing a fingerprint key to unlock a smartphone does explicitly or implicitly relate a factual assertion or disclose information: …
The same constitutional heartwood is found in this case, where the use of the individual’s biometrics (specifically, the fingerprints) may incriminate the individual by providing evidence of some association or “relatively significant connection” with the phone and, therefore, its contents. Further, compelling the use of fingerprints to unlock the phone could “furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman, 341 U.S. at 486.
In sum, what the Government would characterize as innocuous is instead a potentially self-incriminating testimonial communication because it involves the compelled use of biometrics—unique to the individual—to unlock the phone.
