In re Application for a Search Warrant

236 F. Supp. 3d 1066, 2017 U.S. Dist. LEXIS 23861, 2017 WL 758218
CourtDistrict Court, N.D. Illinois
DecidedFebruary 16, 2017
DocketCase Number 17M081
StatusPublished
Cited by6 cases

This text of 236 F. Supp. 3d 1066 (In re Application for a Search Warrant) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Application for a Search Warrant, 236 F. Supp. 3d 1066, 2017 U.S. Dist. LEXIS 23861, 2017 WL 758218 (N.D. Ill. 2017).

Opinion

OPINION AND ORDER

M. David Weisman, United States 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 [1067]*1067“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] [electronic 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 hpplication’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 leave1 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 [1068]*1068testimony 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 elecr tronic 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.1) (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 [1069]*1069Fourth 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 ...

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Cite This Page — Counsel Stack

Bluebook (online)
236 F. Supp. 3d 1066, 2017 U.S. Dist. LEXIS 23861, 2017 WL 758218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-application-for-a-search-warrant-ilnd-2017.