Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
In the Matter of the Search Warrant Case No. 19 CR 439 Application for the cellular telephone in
United States v. Anthony Barrera Magistrate Judge Sunil R Harjani
MEMORANDUM OPINION AND ORDER
Consumers are more often than ever using their biometric information to unlock their smartphones and apps with a fingerprint or face scan. Likewise, the government is responding by seeking authority to compel a subject to use their biometrics to unlock devices found during the execution of a search warrant. Such a request triggers potential Fourth and Fifth Amendment considerations that are addressed herein. Because of the differing views about whether a fingerprint unlock warrant violates the Fifth Amendment among courts, and in particular in this district, the Court has issued this opinion to explain its reasoning in this novel area in granting the government’s application for a warrant [57]. For the reasons that follow, this Court holds that compelling an individual to scan their biometrics, and in particular their fingerprints, to unlock a smartphone device neither violates the Fourth nor Fifth Amendment. Accordingly, the Court has signed and authorized the government’s warrant, including the authority to compel fingers and thumbs to be pressed on the iPhone home button in an attempt to unlock the device.
Background The facts of this case are detailed in the Application and Affidavit for a Search Warrant (“Warrant Aff.”) [57]. Defendant Anthony Barrera was charged by indictment with unlawfully possessing a firearm after having been convicted of a felony offense in violation of 18 U.S.C. § 922(g). Warrant Aff. ¶ 15. Among the evidence establishing that Barrera committed the crime was a video recording made by a confidential informant showing defendant in possession of a firearm. Id. ¶ 16.
In the current proceeding, the government has alleged that Barrera made various online threats to this confidential informant through postings on a Snapchat account, in violation of 18 U.S.C. § 1512(b). Id. ¶¶ 24-34. In connection with the government’s motion to revoke Barrera’s bond conditions, District Judge Robert W. Gettlemen ordered that Barrera’s iPhone be turned over to Pretrial Services. [55]. The government seeks to search this iPhone, with a home button, that was taken from Barrera in order to develop evidence of his alleged threats. Warrant Aff. ¶ 36. The iPhone has a fingerprint lock function (known as Touch ID), and the government asked this Court for a warrant to compel the defendant to place his fingers and thumbs on the iPhone home button in an attempt to unlock the phone. Id. ¶ 48. The government alleged in the affidavit in support of its request for a search warrant that it will select the fingers and thumbs to press on to the home button, and that the iPhone fingerprint unlock function will disable after five incorrect attempts. ¶ 47. At that time, the iPhone function will demand a passcode to unlock the phone. Id.
The Fourth Amendment
The Fourth Amendment protects “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures,” except “upon probable
cause.” U.S. Const. amend. IV;
Missouri v. McNeely
, 569 U.S. 141, 148 (2013). When the
government seeks to search the digital data on a cell phone, the Fourth Amendment generally
requires a search warrant.
Riley v. California
,
The government’s affidavit in support of the warrant application demonstrates probable cause. Specifically, the affidavit alleged that in November 2019, threatening photos and videos were posted by a Snapchat account named “cheech360.” Warrant Aff. ¶¶ 24-34. According to the affidavit, the “cheech360” account was registered to the email address of “theonenonly53@gmail.com,” an email address subscribed to Barrera. Id. ¶ 25. The warrant affidavit further stated that the Snapchat posts captured portions of the discovery file in Barrera’s underlying gun case. For example, the second Snapchat video described in the affidavit portrayed portions of the confidential informant video produced to Barrera during discovery with a Snapchat caption overlaying the video, which stated: “That’s [Individual A, meaning the CI] from [Chicago area location] wearing a wire on me.” Id. ¶ 29. It appeared that this video was created by using a cell phone to record the confidential informant video being played on a separate computer. Id. ¶ 30. The affidavit further averred that Barrera and the confidential informant were both members of a gang in which gang members retaliate against any member who cooperates with law enforcement against other members of the gang. ¶ 33. Based on the agent’s training and experience, and the facts surrounding the Snapchat videos, the government submitted facts establishing probable cause to believe that Barrera used a cell phone to post the Snapchat videos and photos in order to intimidate the confidential informant and influence any potential testimony by the informant. Id ¶ 34.
The warrant affidavit thus establishes that there is probable cause to believe that evidence of a crime, specifically a violation of 18 U.S.C. § 1512(b), exists on Barrera’s cell phone. Because the cell phone to be searched is the cell phone turned over by Barrera, id. ¶ 35, the government has also demonstrated probable cause to compel Barrera to use his fingers and thumbs in an attempt to unlock the phone. [1] The search warrant in this case therefore meets the requirements of the Fourth Amendment.
The Fifth Amendment
More complicated is the question of whether the forced fingerprint unlock of a cell phone
implicates the Fifth Amendment to the United States Constitution. Under the Fifth Amendment,
the government shall not compel an individual in any criminal case to be a
witness
against him or
herself. U.S. Const. amend. V. Compelling communications or communicative acts can lead to an
individual impermissibly bearing witness against him or herself. “Historically, the privilege was
intended to prevent the use of legal compulsion to extract from the accused a sworn communication
of facts which would incriminate him. Such was the process of the ecclesiastical courts and the
Star Chamber—the inquisitorial method of putting the accused upon his oath and compelling him
to answer questions designed to uncover uncharged offenses, without evidence from another
source.”
Doe v. United States
,
The test to determine whether communications or communicative acts are privileged under
the Fifth Amendment is whether they are “testimonial, incriminating, and compelled.”
Ruiz-Cortez
v. City of Chicago
,
To be testimonial, a subject’s communicative act “must itself, explicitly or implicitly, relate
a factual assertion or disclose information.” ,
For example, in
Schmerber v. California
,
The Supreme Court has similarly held that requiring grand jury witnesses to produce voice
and handwriting exemplars neither violates the Fourth nor Fifth Amendment, even though
speaking and writing are quintessential means of communication.
United States v. Dionisio
, 410
U.S. 1, (1973);
Gilbert v. California
, 388 U.S. 263 (1967). The
Dionisio
and
Gilbert
Courts
reasoned that the voice/handwriting exemplars were identifying physical characteristics that did
not reflect the subject’s mental impressions.
Dionisio
,
In another compelled physical act case, the Supreme Court rejected an argument that the
government had violated the privilege against self-incrimination by forcing a defendant to try on
a blouse for identification purposes.
Holt
,
Relatedly, in a compelled verbal act case,
United States v. Wade
,
One type of compelled physical act that has been considered testimonial in certain cases is
the act of producing documents. Courts have found that producing documents in response to a
criminal subpoena request could be a testimonial communicative act because the responding party
may need to “make extensive use of ‘the contents of his own mind’ in identifying the hundreds of
documents responsive to the requests in the subpoena.”
United States v. Hubbell
,
In evaluating the novel question of whether compelled biometric scans to unlock encrypted
devices is permissible under the Fifth Amendment, federal district courts and state courts have
reached different results.
See, e.g.
,
In the Matter of Search Warrant Application for [redacted text]
,
279 F.Supp.3d 800, 801 (N.D. Ill. 2017) (Chang, J.) (“[T]he Court holds that requiring the
application of the fingerprints to the sensor does not run afoul of the self-incrimination privilege
because that act does not qualify as a testimonial communication.”);
In re Application for a Search
Warrant
,
In analyzing this issue, the key questions, in this Court’s view, are threefold: (1) whether the biometric unlock is more like a key than a combination; (2) whether the biometric unlock is more like a physical act than testimony; and (3) whether the implicit inferences that arise from the biometric unlock procedure is sufficient to be of testimonial significance under the Fifth Amendment.
1. Key Versus Combination
First
, the Court holds that the biometric unlock procedure is more akin to a key than a
passcode combination. The Supreme Court in
Doe
, and later in
Hubbell
, has illustrated the
difference between testimonial and non-testimonial physical acts via this helpful comparison,
which aptly applies to an iPhone that has two different unlock features – a fingerprint and a
passcode. In
Doe
, the Court noted that the Fifth Amendment permits the government to force an
individual to surrender a key to a strongbox containing incriminating documents, but not to reveal
the combination to a subject’s wall safe. ,
A combination passcode requires a verbal statement from the possessor of the code.
Doe,
The Supreme Court further expanded on this key/passcode distinction in
Hubbell
holding
that reviewing and producing documents required the extensive use of the responding party's mind
in determining what was responsive.
Hubbell
, 530 U.S. at 43. The assembly of responsive
documents was found to be more akin to providing the combination of a safe rather than
surrendering a key.
Id
. In contrast, in the case of a finger and its corresponding print, the compelled
party is not assembling anything or disclosing any mental revelations from the act. Further, the
Supreme Court has recognized that “both federal and state courts have usually held that it offers
no protection against compulsion to submit to fingerprinting, photographing, or measurements, to
write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to
make a particular gesture.”
Schmerber
,
2. Physical Act Versus Testimony
Second
, the biometric procedure is first and foremost a physical act. It utilizes a body part
on an individual to perform an act—rather than any implicit or explicit verbal statement. Put
another way, the biometric feature is a body part used to essentially determine whether an item of
evidence for a case (
i.e.
a cell phone) has any evidentiary value — much like a blood sample, voice
exemplar, or blouse is used to determine whether it matches the blood, voice, or physical
characteristics of a suspect that would provide evidentiary value in a case. As the Supreme Court
appropriately stated in
Wade
, compelling an individual to exhibit his person to the government
before trial does not violate the Fifth Amendment because such a forcing is “compulsion of the
accused to exhibit his physical characteristics,
not
compulsion to disclose any knowledge he might
have.”
Wade
,
The Supreme Court has held that in situations that require a person to be compelled to
speak, a circumstance that is often equated with the concepts of witness and testimony, the
distinction between testimonial and non-testimonial still applies. As discussed above, the
provision of a voice exemplar in
Dionisio,
an act that requires a
verbal
statement by the accused,
was deemed non-testimonial because it did not constitute a revelation of someone’s mental
thoughts, but simply a physical characteristic of a person – his voice.
Dionisio
,
The question of whether a physical act is testimonial is further addressed in the act of
production line of cases, as discussed above. In the act of production line of cases, the selection
of the documents in response to a subpoena provides some degree of insight into the responding
party's mind, which leads to the conclusion that the production has testimonial significance.
Hubbell
,
In addition, as the Supreme Court recognized in
Doe
, a physical act that does not directly
point the government to incriminating evidence does not constitute a testimonial act. , 487
U.S. at 215. The
Doe
Court held that compelling a defendant to sign a directive consenting to the
disclosure of any bank accounts that he had the right of withdrawal without acknowledging the
existence of any account, was not testimonial under the Fifth Amendment.
Id.
at 214-18. As
explained by the
Doe
Court, as long as the government must locate the evidence on its own (as it
had to with the obtention of bank records in
Doe
), the act of signing the consent has no testimonial
significance. at 215-16. Similarly, the compelled biometric unlock procedure merely gives
access to a potential source of evidence; it does not tell the government where to look.
Cf. Hubbell
,
Another concern that has been raised under the act of production doctrine is that the
compelled production of the fingerprint permits the implication that the data on the phone is
authentic.
See, e.g.
,
Fisher,
3. Implicit Inferences
Third
, the Court holds that the implicit inference from the biometric unlock procedure, that
the individual forced to unlock had some point accessed the phone to program his or her
fingerprint, is not sufficient to convert the act to testimonial. The Supreme Court considered this
similar concept in
Doe
, when it found that requiring a petitioner to execute a consent directive that
would result in the production of bank records would not have testimonial significance. , 487
U.S. at 214-18. This was true even when the Court found that petitioner doing so, and by allowing
the bank to respond to the subpoena, would result in making an implicit declaration that the
accounts belong to the petitioner. Similarly, the Supreme Court has permitted compulsions of
handwriting exemplars despite the resulting implicit inference that the subject “admits his ability
to write and impliedly asserts that the exemplar is his writing.”
Fisher
, 425 U.S. at 411. No
different with the concept of a physical key — by forcing an individual, pursuant to a warrant, to
hand over the key to a strongbox, it allows a firm conclusion that the individual had possession of
the key and an inference that he or she had access to the contents of the strongbox. In fact, in
almost any compelled physical act, there will be an inference that can be drawn, which could in
some fashion prove incriminating. Yet, the Supreme Court has determined that neither the signing
of the consent, the requiring of the handwriting exemplar, the wearing of a blouse, nor the seizing
of a key to a strongbox constitute testimonial acts. As explained above, the dividing line the
Supreme Court has drawn is whether the suspect is compelled to provide “any knowledge he might
have.”
Doe
,
4. Riley and Carpenter
Finally, courts holding that the biometric unlock procedure implicates the Fifth
Amendment often refer to the Supreme Court's opinions in
Riley v. California
, 573 U.S. 373
(2014), and
Carpenter v. United States
,
It is also important to recall that the word at issue in the Fifth Amendment is “witness,” and to equate the concept of witness, which was originally conceived to cover compelled and incriminating oral testimony, with a fingerprint press is inconsistent with the plain text of the Fifth Amendment. Indeed, an overbroad interpretation of the Fifth Amendment could diminish the underlying purpose of the Fourth Amendment, by prohibiting a physical act that provides access to evidence through a warrant upon a finding of probable cause, because it is too easily deemed to be testimonial.
Conclusion For the reasons discussed above, the Court finds that the government’s application for the biometric unlock procedure does not violate the Fourth or Fifth Amendments, and as a result, the Court has signed the application and the warrant after its finding of probable cause.
SO ORDERED.
Dated: November 22, 2019 _____________________________
Sunil R. Harjani
United States Magistrate Judge
Notes
[1] The majority of courts analyzing the Fourth Amendment implications of a fingerprint unlock have been
faced with warrants that compel the use of an individual’s biometric features in an attempt to unlock a
digital device seized in the execution of a premises warrant.
See, e.g.
,
Matter of Search of [Redacted]
Washington, D.C.
, 317 F.Supp.3d 523 (D.D.C. 2018);
In re Application for a Search Warrant
, 236
F.Supp.3d 1066 (N.D. Ill. 2017). Such warrants often involve Fourth Amendment concerns not present
here, such as whether there is “probable cause 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,”
[2] This Court notes that an exception to the act of production doctrine exists where “[t]he existence and
location of the papers are a foregone conclusion and the [party] adds little or nothing to the sum total of the
Government's information by conceding that he in fact has the papers.”
Fisher
,