470 F.Supp.3d 715
E.D. Ky.2020Background
- The United States obtained a warrant to search a Lexington residence for evidence of violations of 18 U.S.C. § 2252A and to seize electronic devices (cellphones, computers, etc.).
- The warrant sought explicit authority to compel “all individuals present” during execution to unlock seized devices using biometrics (fingerprint, face, iris).
- The magistrate judge found the affidavit established probable cause to seize the devices, but appointed amicus counsel and solicited briefing on whether compelled biometrics are constitutional.
- The court treated compelled biometrics as a Fourth Amendment search (citing fingerprint cases) and examined what standard must govern biometric compulsion during warrant execution.
- The court held Fourth Amendment compulsion to obtain biometrics must be limited by reasonable suspicion that (a) the individual has committed the offense that is the subject of the warrant, and (b) the individual’s biometrics will unlock a seized device; it struck the warrant’s broad biometric clause as overbroad.
- On the Fifth Amendment, the court held compelled biometric production (finger, face, iris) is nontestimonial under controlling Supreme Court act-of-production precedents and therefore not protected by the Self‑Incrimination Clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether compelling biometrics during execution of a valid warrant violates the Fourth Amendment | Once probable cause exists to seize devices, no further Fourth Amendment showing is required to compel biometrics from any individual present | Compulsion of biometrics from non-suspects requires additional showing (probable cause or at least reasonable suspicion tied to the individual) | Compelled biometrics are a Fourth Amendment search; government may compel biometrics only with reasonable suspicion that the individual committed the offense and that their biometrics will unlock a device; broad clause struck as overbroad |
| Proper standard for compelled biometric scans (reasonable suspicion v. probable cause) | Probable cause should be required (some districts adopted this) | Reasonable suspicion suffices by analogy to fingerprinting precedents | Adopted reasonable-suspicion standard (Hayes framework adapted) |
| Application to targets v. bystanders | If target control of devices established, compel target’s biometrics | Cannot compel unrelated bystanders (mailman) without specific suspicion | May compel target or others only when reasonable suspicion that person committed the crime and that their biometrics will work; bystanders without such suspicion cannot be compelled |
| Fifth Amendment—are biometric unlocks testimonial? | Compelled biometric unlocking is functionally equivalent to a passcode and thus testimonial | Biometric features are physical, like a key or fingerprint exemplar, and not testimonial | Biometric production is nontestimonial under act-of-production precedents and not protected by the Fifth Amendment |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (established reasonable-expectation-of-privacy test)
- Hayes v. Florida, 470 U.S. 811 (taking fingerprints is a search; field fingerprinting governed by reasonable suspicion)
- Davis v. Mississippi, 394 U.S. 721 (fingerprints taken without probable cause suppressed)
- Dalia v. United States, 441 U.S. 238 (scope of executing warrants left to officers but subject to Fourth Amendment)
- Fisher v. United States, 425 U.S. 391 (act-of-production doctrine; production can have communicative aspects)
- United States v. Doe, 465 U.S. 605 (act-of-production may be testimonial in some subpoena contexts)
- Doe v. United States, 487 U.S. 201 (distinguishing key v. combination; signing consent nontestimonial)
- Hubbell v. United States, 530 U.S. 27 (act-of-production requires using contents of mind; lock v. key analysis)
- Riley v. California, 573 U.S. 373 (digital searches and reasonableness; courts must apply precedent to new tech)
- Schmerber v. California, 384 U.S. 757 (compelled physical evidence like blood tests is nontestimonial)
- Gilbert v. California, 388 U.S. 263 (handwriting exemplars not testimonial)
- United States v. Dionisio, 410 U.S. 1 (voice exemplars nontestimonial)
- In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir.) (distinguishing passcode/decryption production from nontestimonial physical acts)