In re Search of [Redacted] Wash.

317 F. Supp. 3d 523
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 26, 2018
DocketCase No. 18–sw–0122 (GMH)
StatusPublished
Cited by8 cases

This text of 317 F. Supp. 3d 523 (In re Search of [Redacted] Wash.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Search of [Redacted] Wash., 317 F. Supp. 3d 523 (D.C. Cir. 2018).

Opinion

G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE

The government filed an application for a search warrant in this matter that sought to search a premises in the District of Columbia and to seize, among other things, evidence on cellphones and computers found on the premises which reasonably could contain evidence of the offenses under investigation. In addition, the government sought authorization from the Court to "compel biometric features of an individual believed to have perpetrated the alleged offenses under investigation [the "Subject"] in connection with any biometric recognition sensor-enabled" digital device *526falling within the scope of the warrant. Government Mem. at 1.1 In English: the government sought an order from the Court permitting it to attempt to unlock cellphones and computers falling within the scope of the warrant through the compelled use of the Subject's physical characteristics-i.e., his fingerprints, face, or irises. Because the compelled unlocking of digital devices is an emerging area of the law raising both Fourth and Fifth Amendment issues, none of which have been addressed in this District, the undersigned appointed as amicus curiae the Federal Public Defender for the District of Columbia ("amicus " or "Federal Public Defender") to submit its views on the lawfulness of the government's request.2 The Court heard oral argument on the government's application on June 4, 2018. It granted the application and signed the search warrant on June 7, 2018. The Court now issues this opinion to explain its reasoning for doing so.

I. BACKGROUND

The government's affidavit in support of the warrant established probable cause to believe that the premises to be searched was the Subject's, an individual whom the government had probable cause to believe has violated 18 U.S.C. § 1030, which prohibits fraud and related activity involving computers. The application further established probable cause to believe that personal electronic devices used or controlled by the Subject, and which might be found on the premises to be searched, contained evidence or information about, or were the instrumentalities of, those crimes (the "Subject Devices"). Specifically, Attachment B to the requested warrant described the evidence to be seized during the search of the premises, including,

for any digital device which is capable of containing and reasonably could contain fruits, evidence, information, contraband, or instrumentalities as described in the search warrant affidavit and above, including but not limited to ... [a certain] computer referenced in the search warrant affidavit [that the Subject has been seen using]:
... evidence of who used, owned, or controlled the [Subject Devices] at the time the things described in this warrant were created, edited, or deleted, such as logs, registry entries, configuration files, saved usernames and passwords, documents, browsing history, user profiles, email, email contacts, "chat," instant messaging logs, photographs, and correspondence
....

Attachment B, ¶ 3.a. Attachment B further stated:

Although already generally covered by paragraph 3.a. above, during the execution of the search of the [premises] described in Attachment A, law enforcement personnel are also specifically authorized to compel [the Subject] to provide biometric features, including pressing his fingers (including thumbs)
*527against and/or putting his face before the sensor, or any other security feature requiring biometric recognition, of:
(a) any of the [Subject Devices] found at the [premises], and
(b) where the [Subject Devices] are limited to those which are capable of containing and reasonably could contain fruits, evidence, information, contraband, or instrumentalities of the offense(s) as described in the search warrant affidavit and warrant attachments,
for the purpose of attempting to unlock the [Subject Devices'] security features in order to search the contents as authorized by this warrant.

Attachment B, ¶ 4. The affidavit in support of the warrant application noted that, from both the affiant's "training and experience, [and] ... from information found in publicly available materials published by device manufacturers, ... many electronic devices, particularly newer mobile devices and laptops, offer their users the ability to unlock the device through biometric features" rather than with passwords or passcodes. Affidavit, ¶ 59.a. Importantly, the warrant made clear that law enforcement was not authorized "to compel any other individuals found at the [premises] to provide biometric features ... to access or otherwise unlock any [Subject Device]," or to request the Subject "to state or otherwise provide the password or any other means that may be used to unlock or access the [Subject Devices], including by identifying the specific biometric characteristics (including the unique finger(s) or other physical features) that may be used to unlock or access the [Subject Devices]." Attachment B, ¶ 4. That is, absent the Subject's Mirandized-waiver of constitutional rights, the government was not permitted to ask the Subject to disclose which biometric feature (e.g., which finger) would unlock any of the Subject Devices. Rather, law enforcement was required to select which biometric feature to test on a given device.

II. DISCUSSION

A. Fourth Amendment

"The Fourth Amendment provides in relevant part that '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.' " Missouri v. McNeely , 569 U.S. 141, 148, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (quoting U.S. Const. amend IV ). Here, the affidavit submitted in support of the search warrant established both probable cause to believe that a crime had been committed and that evidence of the crime would be found at the premises to be searched, including on the Subject Devices. Thus, the government's warrant satisfied the requirements of the Fourth Amendment justifying the search of the premises and of the above-described Subject Devices.3 The novel *528question presented by the government's application is whether its request to compel the use of the Subject's biometric features in an attempt to open the Subject Devices found on the premises ran afoul of the Fourth Amendment.

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Bluebook (online)
317 F. Supp. 3d 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-search-of-redacted-wash-cadc-2018.