United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
David Weisman Magistrate Judge
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.
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.
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
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.)
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
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. (¶ 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
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.
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).
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." (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).
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).
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.
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).
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 ...