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In re Search of [Redacted] Wash.

Court of Appeals for the D.C. Circuit
317 F.Supp.3d 523 (2018)
ELI5:

Rule of Law:

Compelling a suspect to provide biometric features to unlock a digital device does not violate the Fifth Amendment's privilege against self-incrimination because it is a non-testimonial act. Such a compulsion is permissible under the Fourth Amendment during the execution of a valid search warrant if law enforcement has reasonable suspicion that the suspect committed the crime and that their biometric feature will unlock the device.


Facts:

  • The U.S. government investigated an individual, the 'Subject,' for alleged violations of federal law prohibiting fraud and related activity involving computers.
  • The government's investigation established probable cause to believe that the Subject's residence contained evidence of the alleged computer fraud.
  • The investigation also provided probable cause that electronic devices, including computers and cellphones, used or controlled by the Subject and containing evidence of the crimes were located at the residence.
  • Many modern electronic devices are secured with biometric features, such as fingerprints, facial recognition, or iris scans, which a user can enable to unlock the device.
  • The government sought to compel the Subject to apply his biometric features to any relevant devices found during the search to unlock them.

Procedural Posture:

  • The U.S. government filed an ex parte application for a search warrant in the U.S. District Court for the District of Columbia.
  • The application sought authorization not only to search a premises but also to compel the investigation's subject to provide biometric features to unlock any digital devices found.
  • Recognizing the novel Fourth and Fifth Amendment issues, the Magistrate Judge appointed the Federal Public Defender for the District of Columbia to serve as amicus curiae and submit a brief in opposition.
  • The court heard oral argument on the government's application from both the government and the amicus curiae.

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Issue:

Does a search warrant authorizing law enforcement to compel a suspect to provide biometric features, such as fingerprints or facial scans, to unlock digital devices found during the search violate the suspect's Fourth Amendment right against unreasonable searches and seizures or their Fifth Amendment privilege against self-incrimination?


Opinions:

Majority - G. Michael Harvey

No, a search warrant that authorizes compelling a suspect to provide biometric features to unlock digital devices does not violate the Fourth or Fifth Amendments under these circumstances. With respect to the Fifth Amendment, compelling a person to provide a biometric feature is not a testimonial communication. The act does not require the suspect to reveal the contents of their mind, such as a password or combination. The court analogized it to surrendering a key to a strongbox, which is a physical, non-testimonial act, rather than revealing the combination to a safe, which is a testimonial act protected by the Fifth Amendment. Regarding the Fourth Amendment, while taking a fingerprint is a search, it is a minimally intrusive one. The court, guided by Supreme Court precedent in Hayes v. Florida, established a test requiring reasonable suspicion: law enforcement must have a reasonable suspicion that the suspect committed the crime under investigation and a reasonable suspicion that the suspect's biometric feature will unlock the device in question. Because the warrant in this case was already supported by the higher standard of probable cause to search the devices, the additional step of compelling biometrics is a reasonable, subsidiary step in executing the warrant.



Analysis:

This decision establishes a key legal distinction between testimonial passcodes and non-testimonial biometrics in the context of the Fifth Amendment, providing a framework for law enforcement to access secured devices. It clarifies that while the act of producing a password draws upon the contents of one's mind and is protected, providing a physical characteristic like a fingerprint is not. By applying a 'reasonable suspicion' standard under the Fourth Amendment for compelling biometrics during a warranted search, the court balances individual privacy with law enforcement's investigatory needs. This case provides significant persuasive authority for other jurisdictions confronting how to apply established constitutional principles to modern biometric security technologies.

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