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In re Search Warrant Application for cellular telephone in United States

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

November 22, 2019

In the Matter of the Search Warrant Application for the cellular telephone in United States
v.
Anthony Barrera

          MEMORANDUM OPINION AND ORDER

          SUNIL R. HARJANI, UNITED STATES MAGISTRATE JUDGE

         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. Id. ¶ 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, 573 U.S. 373, 401 (2014). Here, the government has properly applied for a warrant to search the cell phone that Barrera turned over to Pretrial Services on November 14, 2019. See Warrant Aff. ¶¶ 46, 48-51. The government's warrant application seeks authorization for another search and seizure, the taking of Barrera's fingerprints and thumbprints “for the purpose of attempting to unlock the device via Touch ID . . . .” Id. ¶ 48. See Hayes v. Fla., 470 U.S. 811, 814 (1985) (fingerprinting is a search subject to the constraints of the Fourth Amendment even though “fingerprinting . . . represents a much less serious intrusion upon personal security than other types of searches and detentions”). The Court's Fourth Amendment inquiry in this case is thus straightforward: does probable cause support the search of the cell phone and the use of Barrera's fingerprints to unlock the cell phone?

         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 owl from east side Joliet 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. Id. ¶ 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, 487 U.S. 201, 212 (1988).

         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, 931 F.3d 592, 603 (7th Cir. 2019) (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 189 (2004)); see also Fisher v. United States, 425 U.S. 391, 408 (1976) (Fifth Amendment privilege “applies only when the accused is compelled to make a Testimonial Communication that is incriminating”). Applying those three requirements in reverse order here, a biometric scan is certainly compelled-the government is explicitly requesting the Court's authority to force the scan. Warrant Aff. ¶ 48. The act may also be incriminating, as unlocking the phone may lead to the discovery of a nearly unlimited amount of potential evidence including text messages, social media posts, call logs, emails, digital calendars, photographs and videos, and location data. See Riley v. California, 573 U.S. 373, 393-98 (2014) (characterizing cell phones as “minicomputers” that could “just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers”). But if a compelled act is not testimonial, and therefore not protected by the Fifth Amendment, it cannot become protected simply because it will lead to incriminating evidence. Doe, 487 U.S. at 208 n.6. As a result, the relevant Fifth Amendment inquiry here is whether the compelled act of scanning a subject's fingerprint to unlock a device is a testimonial act.

         To be testimonial, a subject's communicative act “must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe, 487 U.S. at 210. Otherwise stated, the Fifth Amendment's self-incrimination clause is implicated wherever the compelled act forces an individual to “disclose the contents of the [subject's] own mind.” Id. at 211 (citing Curcio v. United States, 354 U.S. 118, 128 (1957)). Justice Holmes opined that the self-incrimination clause draws a fundamental distinction between compelling a person to communicate something to the government versus providing some physical characteristic to the government as part of an investigation. See Holt v. United States, 218 U.S. 245, 252-53 (1910) (“[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.”).

         For example, in Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court held that the accused's “testimonial capacities were in no way implicated” when the government's officers extracted blood from the accused's body incident to an arrest, over the accused's objection, to test for alcohol as evidence of criminal guilt. Id. at 765. Schmerber reasoned that Supreme Court precedent provided that only compulsion of communicative facts triggered the Fifth Amendment privilege, not compulsion of “real or physical evidence.” Id. at 764. Thus, the Schmerber Court concluded that the ...


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