“Modern day biometric authentication features for electronic devices allow once trivial gestures, such as a momentary stare or touch, to be the barrier between the outside world and an individual’s most intimate, private details. The United States has applied for a search warrant requesting, in part, to compel any individuals present during a search warrant execution to provide biometrics in order to access seized electronic devices. The Court is now tasked with determining if such compulsion is constitutional and, if so, to whom and what degree it can be applied. In the end, the Court holds that while requests for compelled biometrics is permitted under the Fourth and Fifth Amendment, the Court strikes the biometric request at issue because it fails to address Fourth Amendment concerns set forth below.” … “Accordingly, the Court concludes that the United States may only compel individuals present during warrant execution to provide biometric markers to unlock electronic devices where the United States has reasonable suspicion that such an individual has committed a criminal act that is the subject matter of the warrant, and reasonable suspicion that the individual’s biometrics will unlock the device. Thus, the Court finds the biometric request in the Search Warrant is overbroad.” In re Search Warrant No. 5165, 2020 U.S. Dist. LEXIS 117049 (E.D. Ky. July 2, 2020):
Having established that the capturing of physical attributes of a person is a search, the Court next turns to determining the applicable standard. Again, utilizing analogous cases, the courts have provided a clear answer. Hayes held “that a brief detention in the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable cause, is [not] necessarily impermissible under the Fourth Amendment.” Id. (emphasis added). “[T]here is a diminished interest in ‘purely external searches such as fingerprinting,’ based on their less intrusive nature.” Matter of Search of [Redacted] Washington, D.C., 317 F. Supp. 3d at 531 (quoting United States v. Kriesel, 508 F.3d 941, 948 (9th Cir. 2007) and citing numerous other authorities in support). Hayes set forth three requirements for obtaining fingerprints from an individual at the scene of a search warrant execution: (1) “there is reasonable suspicion that the suspect has committed a criminal act”; (2) “there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime”; and (3) the procedure must be “carried out with dispatch.” Hayes, supra at 817.
The D.C. District Court is the only court that has thoroughly examined the implications of the Fourth Amendment as applied to compelled biometrics. Matter of Search of [Redacted] Washington, D.C., 317 F. Supp. 3d at 532-33. Upon independent review, this Court reaches the same conclusion as the D.C. District Court: the reasonable suspicion standard set forth in Hayes is the most apt Fourth Amendment precedent as applied to biometrics. The D.C. District Court reframed and restated the Hayes requirements in a manner more appropriately applied to electronic devices:
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 [individual] 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.
Id. This reasonable suspicion standard is nothing more than an affirmation or continuation of the general reasonableness standard that already governs the conduct of law enforcement when executing a search warrant. Dalia v. United States, 441 U.S. 238, 255 (1979) (Provided a warrant is properly issued, “it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of the search authorized by the warrant—subject of course to the general Fourth Amendment protection ‘against unreasonable searches and seizures.'”) (internal citations omitted).
At the hearing, the government and Amicus explored a series of hypothetical scenarios related to the instant Search Warrant in discussing what standard should apply to compulsory biometric scans for the Fourth Amendment purposes. Those hypothetical scenarios proved helpful in crafting this analysis, and, accordingly, the Court incorporates them herein where they elucidate the Fourth Amendment framework applicable to the Search Warrant. For example, where the United States has reasonable suspicion that a device is controlled by the target, the officers on the scene may compel the target to provide biometric in an attempt to unlock the device. See, e.g., Matter of Search of [Redacted] Washington, D.C., supra. Such a scenario satisfies the second requirement because the target of a search warrant is clearly suspected of criminal activity, as the government has established by probable cause in the search warrant (much less reasonable suspicion). As to the third requirement, officers reasonably suspecting control may rely on control indicia as supporting a reasonable suspicion that the target’s biometrics will unlock the device. So long as the procedure is carried out quickly and near the scene of the search, this scenario would easily meet the requirements of Hayes and Matter of Search of [Redacted] Washington, D.C. the Court adopts herein.
While this scenario answers the issue of compelled biometrics for the target, the more difficult question is as to a bystander, such as a roommate or even the mailman coincidently delivering a package to the subject premises at the moment the police arrived. As established above, if the government were to compel biometrics of those individuals, it would constitute a search. “Surely it would not be constitutional, for example, for the government to demand the use of anyone’s biometric features for the purpose of attempting to unlock such a digital device.” Matter of Search of [Redacted] Washington, D.C., 317 F. Supp. 3d at 530. Such a search would not meet the second or third requirements of the reasonable suspicion standard. Similarly, the Court in the Northern District of Illinois rejected a search warrant because the warrant sought “to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device.” In Re Application for A Search Warrant, 236 F. Supp. 3d 1066, 1068 (N.D. Ill. 2017). The flaw in that biometric request was the lack of “any specific facts as to who is involved in the criminal conduct linked to the subject premises, or specific facts as to what particular Apple-branded encrypted device is being employed (if any).” Id. Although the Northern District of Illinois applied a probable cause standard to the request (see the discussion infra), the request would also fail under the lower standard set out herein because it fell short of exhibiting “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 [would] unlock the device[.]” Matter of Search of [Redacted] Washington, D.C., 317 F. Supp. 3d 523. In fact, that same court later permitted a search warrant because it limited the seizure of electronic devices to those that were “linked to the offense or the perpetrator of the offense.” Matter of Search Warrant Application for the Search of a Townhouse Unit, No. 2020 WL 1914769, at *3 (N.D. Ill. April 20, 2020).
Returning to the hypothetical roommate or mailman, the three-part test adapted from Hayes protects their respective Fourth Amendment rights. For the roommate, the United States may be able to show reasonable suspicion. For example, where the United States has probable cause that electronic devices at a certain premises are involved in criminal activity (e.g., receipt of child exploitation images), the Court can foresee how the United States could establish reasonable suspicion for not just the owner of the premises, but also other occupants of the premises. Yet, for the mailman, the government would not have “reasonable suspicion that the [mailman] has committed a criminal act that is the subject matter of the warrant,” and therefore could not compel the mailman to provide his biometrics. Matter of Search of [Redacted] Washington, D.C., 317 F. Supp. 3d at 532-33.
In light of the precedents discussed above, the Court finds that, when attempting to unlock devices during execution of a search warrant, the government may compel an individual’s biometrics if there exists reasonable suspicion to believe that the individual has committed a criminal act for which the warrant authorizes an evidentiary search, and that the individual’s biometric features will unlock the device. This standard is a reasonable limitation on the scope of the warrant because the search and seizure are directly tied to the offense or its perpetrator, not just anyone who happens to be present during warrant execution, like the mailman. See Riley v. California, 573 U.S. 381 (2014) (“As the text of [the Fourth Amendment] makes clear, the ultimate touchstone of the Fourth Amendment is reasonableness.”) (internal quotations omitted).
The Court rejects the probable cause standard for compulsory biometric scans adopted in In Re Application for A Search Warrant, 236 F. Supp. 3d 1066 and Matter of Residence in Oakland, California, 354 F. Supp. 3d 1010 (2019), and championed by Amicus. The Supreme Court has not required this higher standard for fingerprinting, which is the framework the Court adopts for biometric scans. See Davis, 394 U.S. at 727 (Due to the “unique nature of the fingerprinting process,” a search may comply with Fourth Amendment requirements without “probable cause in the traditional sense.”); see also Hayes, 470 U.S. 811. The Oakland decision implies that because the request for compelled biometric scans is in the search warrant, the probable cause standard must apply:
[T]he Application does not establish sufficient probable cause to compel any person who happens to be at the Subject Premises at the time of the search to provide a finger, thumb or other biometric feature to potentially unlock any unspecified digital device that may be seized during the otherwise lawful search.
Oakland, 354 F.Supp.3d at 1014. This is conclusion is logically appealing but does not comport with the Supreme Court precedent in Davis and Hayes. Nor did the court in Oakland cite to any case law or even analogous case law supporting the application of a probable cause standard. In In Re Application for A Search Warrant, the court in the Northern District of Illinois reached a conclusion similar to this Court’s finding that “authority to seize any individual at the subject premises and force the application of their fingerprints as directed by government agents” as requested in the search warrant was not “justified based on the facts articulated.” 236 F. Supp. 3d at 1070. Yet still, that Court also omits any case law establishing why probable cause is necessary for fingerprinting or any other analogous circumstance.
In the matter currently before the Court, the supporting affidavit establishes probable cause for the search and seizure of the electronic devices located at the Premises. However, the United States requests permission to “compel all individuals present” at the Premises to provide biometrics, despite the affidavit identifying only one Target. In fact, the affidavit emphasizes numerous facts to establish that the Target controls all of the electronic devices on the Premises, inherently eliminating other parties as potential users of the electronic devices. The affidavit does not mention any other parties that may occupy the Premises or have access to the electronic devices by means of biometrics. In other words, the affidavit’s efforts to establish the Target’s control of the electronic devices undercuts the request to obtain biometrics from non-Target individuals.
Accordingly, the Court concludes that the United States may only compel individuals present during warrant execution to provide biometric markers to unlock electronic devices where the United States has reasonable suspicion that such an individual has committed a criminal act that is the subject matter of the warrant, and reasonable suspicion that the individual’s biometrics will unlock the device. Thus, the Court finds the biometric request in the Search Warrant is overbroad. Future government requests for authorization to compel biometrics as part of a search warrant, whether it be a revised search warrant in the current case or future search warrants before this Court, must comply with the standard set forth above.