N.D.Cal.: Compelled use of fingerprint to open cell phone not testimonial

The court at first declined to sign a search warrant for a cell phone that compelled use of a fingerprint to unlock it. After further submissions from the USAO and the FPD as invited amicus, the court concludes that a revised warrant would be signed, and the use of the fingerprint would not be testimonial where the information is used for no other purpose. United States v. Sealed Warrant, 2019 U.S. Dist. LEXIS 147836 (N.D. Cal. Aug. 16, 2019):

As the United States acknowledges, a consensus has emerged that a suspect may not be compelled to divulge his or her password to law enforcement, as that would require disclosure of the contents of the suspect’s own mind. U.S. Brief at 12; see also FPD Letter at 9. The Court finds no meaningful distinction between unlocking a device with a password and unlocking a device with a biometric feature. In each case, an individual must program the device to accept the input that unlocks it, whether that input is a password or the application of a finger, reflecting the same level of control over and connection to the device and its contents. The two means of locking and unlocking a device are functional equivalents.

For these reasons, this Court disagrees with those courts that have concluded that compelling application of a biometric feature is no different than compelling the provision of non-testimonial physical evidence. See, e.g., In the Matter of the Search of a White Google Pixel 3 XL Cellphone in a Black Incipio Case, ___ F. Supp. 3d ___, 2019 U.S. Dist. LEXIS 125243, 2019 WL 3401990 (D. Idaho July 26, 2019); In re Search Warrant Appl. for [Redacted Text], 279 F. Supp. 3d 800 (N.D. Ill. 2018); In re Search of [Redacted] Washington, D.C., 317 F. Supp. 3d 523 (D.D.C. 2018). Unlike a fingerprint or blood sample, which is obtained for the purpose of identifying a particular individual, the only purpose of compulsory application of a biometric feature to a device is to obtain access to the device’s contents; the government has no interest in obtaining the physical characteristic (e.g., the fingerprint) per se.

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