415 F.Supp.3d 832
N.D. Ill.2019Background
- Defendant Anthony Barrera was indicted for possession of a firearm by a felon (18 U.S.C. § 922(g)); agents later alleged he posted threatening Snapchat messages to a confidential informant in violation of 18 U.S.C. § 1512(b).
- At the district court’s direction, Barrera’s iPhone (with an Apple Touch ID home button) was turned over to Pretrial Services; the government sought a warrant to search the phone for evidence of threats and to compel Barrera to press fingers/thumbs to the home button to attempt unlocking.
- The warrant affidavit tied the Snapchat account to Barrera (email subscription, videos showing discovery material) and asserted probable cause that the phone contained evidence of the alleged threat offense.
- The affidavit noted Touch ID permits a limited number of fingerprint attempts (after which a passcode is required) and that the government would select which fingers/thumbs to try.
- The magistrate judge found probable cause to search the phone and concluded that compelling Barrera to provide fingerprint scans to attempt unlocking did not violate the Fourth or Fifth Amendments, and signed the warrant.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Barrera) | Held |
|---|---|---|---|
| Fourth Amendment: May the Gov't obtain a warrant to search the phone and compel fingerprints to attempt unlocking? | Probable cause supports searching the phone; fingerprinting for unlock is a search but permissible with a warrant. | Fingerprint compulsion is an improper search/overbroad seizure. | Granted: Probable cause shown; warrant to search and to compel fingerprints satisfied Fourth Amendment. |
| Fifth Amendment: Is compelling a biometric (fingerprint) unlock testimonial (protected) or non‑testimonial physical evidence? | Fingerprint is a physical characteristic analogous to a key or other non‑testimonial exemplars; compelling a scan is non‑testimonial and not protected. | A compelled fingerprint unlock implicitly communicates access/control and thus is testimonial (like producing a combination/act of production). | Held: Non‑testimonial. Biometric unlocks are akin to producing a key/physical evidence, not compelled testimonial communication; Fifth Amendment not violated. |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (2014) (cell phones require warrants for content searches; privacy concerns unique to phones)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (warrant requirement for certain historic phone data; recognized phone data’s sensitivity)
- Schmerber v. California, 384 U.S. 757 (1966) (compelled blood test is physical evidence, not testimonial)
- Doe v. United States, 487 U.S. 201 (1988) (distinguishes testimonial communications from surrender of noncommunicative physical evidence; key vs. combination analogy)
- United States v. Hubbell, 530 U.S. 27 (2000) (act of production can be testimonial when assembling documents reveals the contents of the mind)
- Fisher v. United States, 425 U.S. 391 (1976) (act of production may tacitly concede existence/possession, making production testimonial in some contexts)
- Gilbert v. California, 388 U.S. 263 (1967) (voice/handwriting exemplars are physical characteristics, not testimonial content)
- United States v. Dionisio, 410 U.S. 1 (1973) (voice exemplars may be compelled for physical comparison without invoking Fifth Amendment)
- United States v. Wade, 388 U.S. 218 (1967) (lineup/voice exemplars compel physical characteristics, not testimony)
- Holt v. United States, 218 U.S. 245 (1910) (trying on clothing for ID is not testimonial)
- Hayes v. Florida, 470 U.S. 811 (1985) (fingerprinting is a search under the Fourth Amendment but is comparatively minor)
- Pennsylvania v. Muniz, 496 U.S. 582 (1990) (distinguishing testimonial versus physical characteristics in compelled speech/utterance contexts)
- Missouri v. McNeely, 569 U.S. 141 (2013) (Fourth Amendment warrant requirement principles reiterated)
- Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177 (2004) (tests for when compelled acts are testimonial)