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In re Application For A Search Warrant

United States District Court, N.D. Illinois, Eastern Division

February 16, 2017

In re Application for a Search Warrant


          M. David Weisman Magistrate Judge

         The government has presented an application for a search and seizure warrant to seize various items presumed to be located at a particularly identified location (hereinafter "subject premises"). The warrant further requests the authority to seize various items (identified in Attachment B of the warrant application), including various forms of electronic storage media and computer equipment (hereinafter collectively "electronic storage media"). Pursuant to Fed. R. Crim. P. 41(e)(2)(B), the government further requests the authority to remove the electronic storage media from the subject premises, and conduct forensic analysis of these materials at a secure location in a more controlled environment. The Court has reviewed the application and finds that there is sufficient probable cause to conduct a search of the subject premises. Thus, all the aforementioned requests seem justified and appropriate to the Court.

         However, in its warrant application, the government also seeks the authority to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints "onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device." For the reasons set forth below, this aspect of the search warrant application is denied.

         To begin, there are several aspects of the warrant application that are noteworthy. First, the government has plainly established probable cause to believe that someone has been receiving and trafficking child pornography using the subject premises' internet service. Obviously, these are extremely serious allegations. The warrant application makes plain multiple vulnerable victims are, or were, being sexually abused, and someone associated with the subject premises (although as explained below the exact nature of the association is not known) is involved in trafficking these images.

         Despite the apparent seriousness of the offenses involved, the Court notes that some of the "'boilerplate" background information included in the warrant is a bit dated, such as its explanation that "[t]he internet allows any computer to connect to another computer [so] [e]lectronic contact can be made to millions of computers around the world;" its explanation that a "Blackberry" is a common "Personal Digital Assistant" (see ¶ 19); and its suggestion that the use of "cloud technology" is the exceptional way of transferring files and that transferring images to a computer by directly connecting a cable to a camera or other recording device is the expected means of data transfer. (¶ 18.)

         The inclusion of this somewhat dated view of technology certainly does not distract from the application's goal of establishing probable cause. However, the dated "boilerplate language" is problematic for what is not included. There is absolutely no discussion of wireless internet service and the possibilities and capabilities that wireless service presents in this context. For example, an unsophisticated internet user, or a careless one, may fail to properly encrypt his wireless service or may share the password injudiciously. Such practices leave open the possibility that it is not an inhabitant of the subject premises that has used the internet to gather and distribute child pornography, but rather it is a person who has access to the internet service at the subject premises. Obviously, this possibility holds true in all investigations that track the investigation outlined in the instant application. The limitations of this investigation are not fatal to establishing probable cause, but, in the Court's view, these limitations do impact the ability of the government to seek the extraordinary authority related to compelling individuals to provide their fingerprints to unlock an Apple electronic device.

         The warrant application also lacks any detailed information about the resident(s) of the subject premises other than the name of the individual who is likely residing there. There is no assertion that the resident has a known link to criminal acts involving child exploitation. There is no testimony from a source linking the resident to trafficking or possessing child pornography. Nor does the warrant application explain what types of internet-accessible hardware are located at the subject premises. Indeed, part of the warrant application states that "it is likely that Apple brand devices" will be found at the subject premises.[1] (¶ 25.) Finally, the warrant application does not identify a comprehensive list of files that the government expects to find on the electronic storage media at the subject premises (or files that can be readily linked to the electronic storage media at the subject premises through other forensic techniques).

         The above-noted deficiencies are not surprising. Based on the information contained in the search warrant application, the government's investigation is still developing, and these questions may be answered in the future. As discussed below, however, these factual deficiencies are important for purposes of the Fourth and Fifth Amendment issues presented by this case.

         The issues presented in this warrant application are at the cross section of protections provided by the Fourth and Fifth Amendments. Essentially, the government seeks an order from this Court that would allow agents executing this warrant to force "persons at the Subject Premises" to apply their thumbprints and fingerprints to any Apple electronic device recovered at the premises. (See Attach. B, ¶ 12.) The request is neither limited to a particular person nor a particular device. And, as noted below, the request is made without 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).

         First, the Court finds that the warrant 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 give his fingerprint to unlock an unspecified Apple electronic device. The government argues that "there is no Fourth Amendment right implicated by taking a fingerprint."[2] (Gvt. Mem. at 3 n.l) (citing United States v. Sechrist, 640 F.2d 81 (7th Cir. 1981)). Sechrist does not stand for the simple proposition that "there is no Fourth Amendment right implicated by taking a fingerprint." Indeed, Sechrist recognizes that the compelled fingerprinting of a criminal suspect involves two levels of Fourth Amendment analysis. 640 F.2d 81. The Sechrist court considered the Fourth Amendment implications of seizing an individual to obtain his fingerprints, and the Fourth Amendment implications of securing the fingerprints themselves. See Id. at 85 ("The analysis of any Fourth Amendment claim involves a potential violation at two different levels: the 'seizure' of the 'person' necessary to bring him into contact with government agents ... and the subsequent search for and seizure of the evidence.") (quoting United States v. Dionisio, 410 U.S. 1 (1973)); see also Davis v. Mississippi, 394 U.S. 721 (1969) (discussing the potential Fourth Amendment implications of law enforcement attempts to gather fingerprint evidence without regard to the initial seizure necessary to obtain the fingerprints).

         Significant to this Court is that the government is seeking "forced fingerprinting" of any person who happens to be at the subject premises - inclusive of any resident(s) or itinerant visitors. Courts have appropriately and practically recognized that when executing a search warrant, law enforcement officers may detain residents present at the time of the search, Michigan v. Summers, 452 U.S. 692 (1981); conduct pat downs of individuals present during the search under the appropriate circumstances, cf. Ybarra v. Illinois, 444 U.S. 85 (1979); and sweep the location being searched, Maryland v. Buie, 494 U.S. 325 (1990). In some circumstances, these Fourth Amendment intrusions are permitted categorically, see Muehler v. Mena, 544 U.S. 93, 98 (2005) (noting that "[a]n officer's authority to detain incident to a search is categorical" in nature), while other Fourth Amendment intrusions are premised on some showing of necessity. See Ybarra, 444 U.S. at 91 (stating "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person") (citation omitted); Buie, 494 U.S. at 331 (noting distinction between sweeping areas "immediately adjoining the place of arrest" as a matter of course and a broader search based on "articulable facts which, taken together with the rational inferences from those facts, would warrant" a search broader than the immediate area of arrest).

         Perhaps most significantly, the Summers case, which allows the Fourth Amendment event of seizing occupants of a residence, has been read narrowly by courts to be limited to the "residents" of the searched premises. Summers, 452 U.S. 692. In Summers, while police officers were executing a warrant to search a house for narcotics, they encountered respondent on the front steps. Id. at 693. The police officers requested Summers' assistance in gaining entry and detained him while they searched the premises. The police found narcotics on the premises and subsequently arrested Summers, searched his person, and discovered heroin in his coat pocket. Respondent was ultimately charged with possession of the heroin found on his person. Summers moved to suppress the heroin found on his person during a search of his home, arguing that the officers had no authority to detain him while they executed the search warrant.

         The Supreme Court found that under the Fourth Amendment, police officers have the limited authority to detain an occupant of premises being searched for contraband pursuant to a valid warrant. Id. at 705. The Court explained that law enforcement's interest in preventing flight, minimizing harm to officers, and the orderly completion of a search were all justifications for such detention. Mat 702-03. The Court noted that the detention represented "only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant." Id. at 704. Thus, seizures of individuals who are present at the time of a search, but are not otherwise connected to the location being searched, are not necessarily subject to temporary detention under Summers. See Panaderia La Diana v. Salt Lake City Corp., 342 F.Supp.2d 1031 (D. Utah 2004); United States v. Lopez-Garvia, No. 12-1543 MV, 2013 WL 10093411, at *12 (D.N.M. Dec. 13, 2013).

         Finally, to ensure clarity on this issue, the Court is not concerned with the privacy interests of a fingerprint. The courts have made clear that there is no protectable Fourth Amendment interest in the print itself. Rather, it is the method of obtaining the print that is at issue. In United States v. Guevara-Martinez, the defendant was stopped and arrested after a traffic stop resulted in the discovery of narcotics. 262 F.3d 751, 752 (8th Cir. 2001). The defendant was transported to the local jail. Id. Suspecting he might be an illegal alien, the officers informed the United States Immigration and Naturalization Service of the arrest. Id. A day later the defendant was fingerprinted; his fingerprints revealed he was in fact an illegal alien. Id. Defendant was indicted for possession with intent to deliver narcotics, but the charge was ultimately dismissed because the traffic stop was found to be illegal. Id. A week after the drug charge was dismissed, the defendant was indicted for being an illegal alien. Id. The defendant moved to suppress all of the evidence flowing from the illegal traffic stop, including his fingerprints. The Court found his fingerprints were subject to the exclusionary rule. Id. at 756. The Court found that "the authorities desired to gather the fingerprints, and were able to take advantage of the unlawful detention in order to get the fingerprints." Id. The Court held that "in the absence of evidence that [Defendant's] fingerprinting resulted from routine booking procedures, rather than for the purpose of pursuing [immigration] related proceedings against him" his fingerprints were subject to the exclusionary rule. Id. This Court agrees that the context in which fingerprints are ...

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