Case: 1:17-mc-00081 Document #: 1 Filed: 02/16/17 Page 1 of 14 PageID #:1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

In re Application for a Search

Warrant

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Magistrate Judge M. David Weisman

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OPINION AND ORDER
The government has presented an application for a search and seizure warrant to seize
various items presumed to be located at aparticularly 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 ooelectronic storage

media"). Pursuant to Fed.

R. Crim. P. al(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 andlor thumbprints o'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.

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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 fl 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.

(,1T

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 intemet 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

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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.r ('l 125.) 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.

t

Why Apple devices are likely to be found at the premises is not explained. The Court is aware that Apple has a
large market share in online hardware, but Microsoft's Windows operating systems continue to dominate the
overall
market share of operating systems used. See Joel Hruska, Windows Drops Below 90% Market Share
for the First
Time in Years; lVindows 7 Falls Below, Extreme Tech (Dec. 19,2016),
https://www.extremetech.com/computing/227693-windows-drops-below-90-market-share-for-the-first-time-inyears-windows-7-fal ls-below-50).

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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,

tT

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 1cvt. Mem. at 3 n.1) (citing
United States v. Sechrist, 640 F.2d 81 (7th Cir. l98l )). 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 8l

.

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'

2At

the Court's request, the government prepared a memorandum of law in support of its warrant application,
Government's Memorandum of Law on Compelling Fingerprints to Unlock Encrypted Devices (hereinafter "Gvt.
Mem.") The Court appreciates that the govemment promptly provided this document to support its legal position.
Given the short timeframe the government had to prepare this document, the Court recognizes that Gvt. Mem. does
not reflect an exhaustive document supporting the government's position. Similarly, this Court, in an effort to
timely address the warrant application, has not been able to prepare an opinion that is as exhaustive an exploration
of the issues as the Court would prefer to prepare given more time to do so. This Court presented its order to the
government for its consideration. Following that exchange, the Court has made minor edits to the opinion and
amplified the Fifth Amendment analysis prior to publishing this order.

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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.

I (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 Ybarua, 444 U.S. at

9l

(stating

'oa

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 33 I (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

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"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 offrcers 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 offrcers, and the orderly completion of a search were all justifications

for

such

detention. Id. at 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. at704. 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
Supp. 2d 1031 (D. Utah 2004); United States v. Lopez-Gorcia,No. 12-1543

F

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. ln United States v. Guevara-Martinez,the defendant was stopped and arrested after a

.

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traffic stop resulted in the discovery of narcotics.262 F.3d
defendant was transported to the local

751 ,752

(9th Cir. 2001). The

jail. Id. Suspecting he might

be an illegal alien, the

officers informed the United States Immigration and Naturalization Service of the anest. 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, Aweek 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 taken, and not the fingerprints themselves, can raise concerns
under the Fourth Amendment. In the instant case, the government is seeking the authority to
seize any individual at the subject premises and force the application of their fingerprints as

directed by government agents. Based on the facts presented in the application, the Court does
not believe such Fourth Amendment intrusions are justified based on the facts articulated.
Second, and in addition to the Fourth Amendment concerns articulated above, the Court

believes that the government's warrant application raises concerns under the Fifth Amendment's
protection prohibiting compelled self-incrimination. In its submission, the govemment argues
that "[b]ecause depressing a fingerprint to a device results in no 'testimonial communication' it

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does not implicate the Fifth Amendment rights of the user of device . .

. Here the finger is like

the key to a strongbox, it is not a communication at all, let alone a testimonial one." (Gvt. Mem.

at2) (citing Commonwealth v. Baust,89 Va. Cir.267 (Cir. Ct. Ya.2014)).
The government is generally correct that the production of physical characteristics
generally do not raise Fifth Amendment concerns. See United Stotes v. Dionisio, 410 U.S.

1

(1973) (finding a suspect can be compelled to provide a voice exemplar); Schmerber v. Ca\.,384

U.S. 757 (1966) (holding a suspect may be compelled to give blood sample); Gilbert v. Ca .,388
U.S. 263, 267 (1967) (finding a suspect may be compelled to provide a handwdting exemplar);
United States v. Wade,388 U.S. 218 (1967) (finding a suspect can be compelled to stand in a line
up). However, courts have raised Fifth Amendment concems where the production

of

information is compelled, and the production itself is deemed incriminating. See Fisher

v.

United States,425 U.S. 391,410 (1976) (taxpayer's act of producing documents could qualify as

testimonial if conceding the existence, possession and control, and authenticity of the documents
tended to incriminate him). This concern of compelled production often arises in the context
grand

jury

of

subpoenas, where the production of requested information may have incriminatory

value. United States v. Doe,465 U.S. 605 (1984). Notably, the grand jury subpoena cases do not
involve a coexistent Fourth Amendment interest, as courts do not consider an appearance before
the grand

jury to be a Fourth Amendment event. See Dionisio,4l0 U.S. 1 ("[A]

grand

jury

subpoena to testify is not [the] kind of governmental intrusion on privacy against which the

Fourth Amendment affords protection once the Fifth Amendment is satisfied.") (citation and

internal quotations omitted).

In United

States v. Doe, Defendant Doe was served with a subpoena requiring him to

appear before a grandjury and produce encrypted contents located on the hard drives

ofhis

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computer and external devices. United States v. Doe (In re Grand Jury Subpoena Duces Tecum),
670 F.3d 1335 (11th Cir. 2012). During the course of a child pornography investigation, the

police lawfully seized pieces of Doe's digital media. Id. at 1339. The warrant allowed the
officers to seize "all digital media, as well as any encryption devices or codes necessary to access
such media."

Id.

The forensic examiners were unable to view the encrypted portions of the

drive. Id.The subpoena ordered Doe to produce the "unencrypted contents" of the digital media
and any and all containers or folders thereon."

Id.

Doe invoked his Fifth Amendment privilege

against self-incrimination and refused to comply with the subpoena, arguing that by decrypting
the contents he would be "testifuing that he, as opposed to some other person, placed the
contents on the hard drive, encrypted the contents, and could retrieve and examine them
whenever he wished." Id. at 1339-40. The court stated the issue was not whether contents of the
drives themselves were testimonial, but whether "the oct of production may have some

testimonial quality sufficient to trigger Fifth Amendment protection when the production

explicitly or implicitly conveys some statement of fact." Id. at 1342. In other words, the
appropriate question to consider was whether the Government sought testimony implicating the

Fifth Amendment by requiring Doe to decrypt certain computer files.
In framing its analysis, the Court of Appeals relied heavily on Fisher v. (Jnited States,
425 U.S. 391 (1976) and United States v. Hubbell,530 U.S. 27 (2000). In Fisher, the IRS
required a taxpayer's attorney to hand over various documents including a copy of the taxpayer's
returns and an accountant's work papers. Fisher,425 U.S. at393-94. The attorney refused to

turn over the documents, arguing that doing so would violate his Fifth Amendment privilege
against self-incrimination. 425 U.S. at393-94. The Supreme Court disagreed, stating that the act

of producing the subpoenaed documents did not involve testimonial self-incrimination because

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the Government was "in no way relying on the truth telling of the taxpayer." Doe,

67

0 F.3d

133

5

(citing Fisher,425 U.S. at 411). As the Doe court explained:
The lFisher] Court reasoned that, in essence, the taxpayer's production of the
subpoenaed documents would not be testimonial because the Government knew
of the existence of the documents, knew that the taxpayer possessed the
documents, and could show their authenticity not through the use of the
taxpayer's mind, but rather through testimony from others. Where the location,
existence, and authenticity of the purported evidence is known with reasonable
particularity, the contents of the individual's mind are not used against him, and
therefore no Fifth Amendment protection is available.
Id. at 1344 (internal citations omitted). This reasoning has been labeled the "foregone conclusion
doctrine."
In contrast, in Hubbell, defendant invoked the Fifth Amendment privilege after a grand

jury subpoenaed certain documents. 530 U.S. at 30-31. The grand jury indicted Hubell with
several federal crimes. Id. at 31. Unlike in Fisher, the Supreme Court in Hubbell found that the
act of production was sufficiently testimonial to trigger Fifth Amendment protection because the

govemment had no knowledge of the existence or location of the documents. Id. at45. The

Hubell Court explained:
Whatever the scope of this "foregone conclusion" rationale, the facts of this case
plainly fall outside of it. While in Fisher the Government already knew that the
documents were in the attorneys' possession and could independently confirm
their existence and authenticity through the accountants who created them, here
the Government has not shown that it had any prior knowledge of either the
existence or the whereabouts of the 13,120 pages of documents ultimately
produced by respondent. The Government cannot cure this deficiency through the
overbroad argument that a businessman such as respondent will always possess
general business and tax records that fall within the broad categories described in
this subpoena. The Doe subpoenas also sought several broad categories ofgeneral
business records, yet we upheld the District Court's finding that the act of
producing those records would involve testimonial self-incrimination.

nd.44-45.

10

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In light of these two opinions, the Doe court concluded that an "act of production can be
testimonial when that act conveys some explicit or implicit statement of fact that certain
materials exist, are in the subpoenaed individual's possession or control, or are authentic" and
the "touchstone" of whether production is testimonial is if the "government compels the

individual to use 'the contents of his own mind' to explicitly or implicitly communicate some
statementof fact." Id.at1345 (citing Curciov. UnitedStates,354 U.S. 118, 128 (1957)). The
Court explained that an act of production is not testimonial where the government compels
merely a physical act, or under the forgone conclusion doctrine, if the government can show with
"'reasonable particularity' that, at the time it sought to compel the act of production, it already

knew of the materials, thereby making any testimonial aspect a 'foregone conclusion."' Id. at
1346.

ln Doe, the government was unaware of what, if any, files existed or the location of the
files on the hard drive. Id. at t347. The court found that the government had not shown that it
had any prior knowledge of the existence or the location of the files

produce.

Id. Finally,

it sought to compel Doe to

the Court found requiring Doe to use a decryption password would

demand the use of the contents of his

mind. Id. at 1346.

In the instant case, the government argues that the presentation of a fingerprint is not
testimonial because under Doe v. United States,487 U.S. 201 (1987), "[t]o be testimonial, an act
must involve communication and 'an accused communication must itself, explicitly or implicitly,
relate a factual assertion or disclose information."' (Gvt.Mem. at

2)

Yet, the connection of the

f,rngerprint to the electronic source that may hold contraband (in this case, suspected child
pornography) does "explicitly or implicitly relate a factual assertion or disclose information."
Doe, 670 F.3d at 1342. The connection between the fingerprint and Apple's biometric security

11

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system, shows a connection with the suspected contraband.3 By using a finger to unlock a
phone's contents, a suspect is producing the contents on the phone. With a touch of a finger, a
suspect is testifuing that he or she has accessed the phone before, at a minimum, to set up the

fingerprint password capabilities, and that he or she currently has some level of control over or

relatively significant connection to the phone and its contents.
The government cites United States v. Wade, for the proposition that the Fifth
Amendment privilege against self-incrimination offers no protection against compulsion to
submit to fingerprinting. (Gvt. Mem. at2) (citing Wade,388 U.S. 218,223). This case, however,
was decidedin 1967, prior to the existence of cell phones, and in the context of utilizing

fingerprinting solely for identification purposes. In the context of the Fifth Amendment, this
Court finds these two starkly different scenarios: using a finger print to place someone at a
particular location, or using a fingerprint to access a database of someone's most private
information. The Wade court could not have anticipated the creation of the iPhone nor could it
have anticipated that its holding would be applied in such a far-reaching manner. In fact, the
Supreme Court has said "[t]he term 'cell phone' is itself misleading shorthand; many of these

devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.
They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders,

libraries, diaries, albums, televisions, maps, or newspapers." Riley v. Colifornia, 134 S. Ct.
2473,2489 (20t4).
The societal concerns of privacy raised in Riley provide an important backdrop to the
issue presented in the instant case. The Riley court recognized that the modern day cell phone,
based in part on the personal and intimate information regularly stored on such devices, is

3

The strength and depth ofthat connection may still be at issue, but connecting a suspect to contraband via
biometric evidence is a large step forward in the criminal investigatory process.

t2

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subject to higher Fourth Amendment protections than other items that might be found on a

person. Id. at2485. The considerations informing the Court's Fourth Amendment analysis of a
cell phone's role in modern day life, we believe raise Fifth Amendment concerns as well. We do
not believe that a simple analogy that equates the limited protection afforded a fingerprint used

for identification purposes to forced fingerprinting to unlock an Apple electronic device that
potentially contains some of the most intimate details of an individual's life (and potentially
provides direct access to contraband) is supported by Fifth Amendment jurisprudence.

In closing, upon presentation of the warrant application to this Court, the government
identified for this Court that the warrant application was seeking the forced fingerprinting
discussed herein. The government further noted

"[t]his is the language that we are making

standard in all of our search warrants." This declaration of standardization is perhaps the crux

of

the problem. As the Court hopes it is plain from the above, the issues presented here require a

fact-intensive inquiry both for pu{poses of the Fourth Amendment and the Fifth Amendment.
This opinion should not be understood to mean that the govemment's request for forced
fingerprinting will always be problematic. In circumstances where the existence and nature

of

the electronic information sought is a o'foregone conclusion," Fifth Amendment jurisprudence

tells us that the concerns noted above may be obviated. Similarly, under Fourth Amendment
jurisprudence where there is an individualized showing more firmly establishing a connection
between an individual and criminal conduct, the Fourth Amendment concerns raised herein may

fall to the wayside. Indeed, after the execution of this warrant, the government may garner
additional evidence that addresses both of these concerns such that the government can promptly
apply for additional search warrants. We simply are not there yet.

13

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For the reasons stated, the Court does not find, under the circumstances presented here,
that the government has established a proper basis to force any individual at the subject premises
to provide a fingerprint or thumbprint in an attempt to unlock any Apple device that may be
found.

SO ORDERED.

ENTERED: February 16,2017

M. David Weisman
United States Magistrate Judge

t4