Case 4:19-mj-70053-KAW Document 1 Filed 01/10/19 Page 1 of 9

FILED
1

JAN 10 2019

2

CLERK, U.S. DISTRICT COURT

SUSAN Y. SOONQ
NORTH DISTRICT OF CALIFORNIA
OAKLAND OFFICE.

3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

KAW

6
7

In the Matter of the SEARCH OF A

8

RESIDENCE IN OAKLAND,

Case No.

4-19-70053

ORDER DENYING APPLICATION

FOR A SEARCH WARRANT; ORDER
9

CALIFORNIA

SEALING APPLICATION

10
11

03

12

p^
o

13

.a O
is

14

violation of 18 U.S.C. § 875(d). In brief, the suspects allegedly used Facebook Messenger to

15

communicate with a victim, in which they threatened to distribute an embarrassing video of him if

16

he did not provide them with monetary compensation. (Aff. 17.) The Government has submitted

17

an application for a search and seizure warrant to seize various items presumed to be located at a

18

residence in Oakland, California ("Subject Premises") connected to the two named suspects. The

19

Application further requests the authority to seize various items (identified in Attachment B),

20

including electronic devices, such as mobile telephones and computers ("digital devices"). The

21

Court has reviewed the Application and finds that there are sufficient facts to support a finding of

22

probable cause to conduct a search of the Subject Premises.

The Government is investigating two individuals believed to be involved in extortion in

»

zn

o

S tj
w

n

B ■K

S3

T3

in

O

0)

■ ^

23

The Government, however, also seeks the authority to compel any individual present at the

24

time of the search to press a finger (including a thumb) or utilize other biometric features, such as

25

facial or iris recognition, for the purposes of unlocking the digital devices found in order to permit

26

a search of the contents as authorized by the search warrant. For the reasons set forth below, the

27

Court finds that the Government's request runs afoul of the Fourth and Fifth Amendments, and the

28

search warrant application must be DENIED. The Government may submit another search warrant

 Case 4:19-mj-70053-KAW Document 1 Filed 01/10/19 Page 2 of 9

1

application for the Subject Premises subject to the limitations outlined below.

2

3

the Fourth and Fifth Amendments. The undersigned has found no legal authority explicitly

5

restricting the Court from considering the privileges and protections afforded by the Fifth

6

Amendment prior to signing a warrant. In fact, the prejudice that suspects may suffer should the

7

Fifth Amendment be ignored at this juncture—both due to the practical difficulty in prevailing on

8

a motion to suppress and the fact that they are not represented in the warrant process—gives rise

9

to a moral imperative demanding consideration of the Fifth Amendment. To do otherwise would

11
12

13
.a o
id
on

B ■K
cS

■*i Q
on
^

T} fi

%

be a miscarriage of justice.
A.

Fourth Amendment Analysis
i.

Probable Cause Exists to Search the Premises

The Fourth Amendment protects "[tjhe right of the people to be secure in their persons,

14

houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV.

15

"The 'basic purpose of this Amendment,' our cases have recognized, 'is to safeguard the privacy

16

and security of individuals against arbitrary invasions by governmental officials.'" Carpenter v.

17

United States, 138 S. Ct. 2206, 2213, 201 L. Ed. 2d 507 (2018) (quoting Camara v. Mun. Court of

18

City & Cty. of San Francisco, 387 U.S. 523, 528 (1967)).

o

Q td

(D

The issues presented in the Application implicate the constitutional protections afforded by

4

10

cd

DISCUSSION

U

19

There are sufficient facts in the affidavit to believe that evidence of the crime will be found

20

at the Subject Premises, so the Government has probable cause to conduct a lawful search, so long

21

as it comports with the Fourth Amendment, If, however, law enforcement violates another

22

constitutional right in the course of executing a warrant, it inherently renders the search and

23

seizure unreasonable.

24
25

ii.

No Probable Cause to Use Biometrie Features of Ail Present During Search

In addition to the search of the premises, the Government seeks an order that would allow

26

agents executing this warrant to compel "any individual, who is found at the Subject Premises and

27

reasonably believed by law enforcement to be a user of the device, to unlock the device using

28

biometrie features...." (Aff. 117h.) This request is overbroad. There are two suspects identified in

 Case 4:19-mj-70053-KAW Document 1 Filed 01/10/19 Page 3 of 9

1
2

the affidavit, but the request is neither limited to a particular person nor a particular device.
Thus, the Court finds that the Application does not establish sufficient probable cause to

3

compel any person who happens to he at the Subject Premises at the time of the search to provide

4

a finger, thumb or other biometric feature to potentially unlock any unspecified digital device that

5

may be seized during the otherwise lawful search.
ill.

6
7

Application Overbreadth

Furthermore, the Government's request to search and seize all digital devices at the Subject

8

Premises is similarly overbroad. The Government cannot he permitted to search and seize a

9

mobile phone or other device that is on a non-suspecf s person simply because they are present

10
11

during an otherwise lawful search.

While the warrant is denied, any resubmission must be limited to those devices reasonably

c3

12

believed by law enforcement to be owned or controlled by the two suspects identified in the

B
a
o ,o

13

affidavit.

U

14

B.

15

Even if probable cause exists to seize devices located during a lawful search based on a

O^
C/3

The Fifth Amendment Privilege

O

Q .2

 S 16
^3 B

■B ^

reasonable belief that they belong to a suspect, probable cause does not permit the Government to

17

compel a suspect to waive rights otherwise afforded by the Constitution, including the Fifth

18

Amendment right against self-incrimination.^ The Fifth Amendment provides that no person "shall

19

be compelled in any criminal case to be a witness against himself." U.S. Const, amend. V. The

20

proper inquiry is whether an act would require the compulsion of a testimonial communication

21

that is incriminating. See Fisher v. United States, 425 U.S. 391, 409 (1976). Here, the issue is

22

whether the use of a suspect's biometric feature to potentially unlock an electronic device is

23

testimonial under the Fifth Amendment.

s t;

S o

^

24

The challenge facing the courts is that technology is outpacing the law. In recognition of

25

this reality, the United States Supreme Court recently instructed courts to adopt rules that '"take

26
27

28

^ For instance, a suspect arrested pursuant to an arrest warrant issued under to the Fourth
Amendment, does not waive the right against self-incrimination provided by the Fifth Amendment
absent a Miranda warning.
3

 Case 4:19-mj-70053-KAW Document 1 Filed 01/10/19 Page 4 of 9

1

account of more sophisticated systems that are already in use or in development.'" Carpenter, 138

2

S. Ct. at 2218—19(quoting Kyllo v. United States, 533 U.S. 27, 36(2001)). Courts have an

3

obligation to safeguard constitutional rights and cannot permit those rights to be diminished

4

merely due to the advancement of technology. See Carpenter, 138 S. Ct. at 2214(quoting Kyllo,

5

533 U.S. at 34)(The United States Supreme Court has repeatedly sought to "assure [] preservation

6

ofthat degree of privacy against government that existed when the Fourth Amendment was

7

adopted.")(internal quotations omitted). Citizens do not contemplate waiving their civil rights

8

when using new technology, and the Supreme Court has concluded that, to find otherwise, would

9

leave individuals "at the mercy of advancing technology." Carpenter, 138 S. Ct. at 2214 (citation

10

omitted).

11

While securing digital devices is not a novel concept, the means of doing so have changed.

12

Indeed, consumers have had the ability to utilize numerie or alpha-numeric passcodes to lock their

^i

13

devices for decades. Courts that have addressed the passcode issue have found that a passcode

•d ^

14

cannot be compelled under the Fifth Amendment, because the act of communicating the passcode

15

is testimonial, as "[t]he expression ofthe contents of an individual's mind falls squarely within the

16

protection of the Fifth Amendment." See Doe v. United States, 487 U.S. 201, 219(1988)(Stevens,

17

J., dissenting)(citing Boyd v. United States, 116 U.S. 616,633-635 (1886); Fisher v. United

18

States, 425 U.S. 391,420(1976)); see also United States v. Kirschner, 823 F. Supp. 2d 665,669

19

(E.D. Mich. 2010)(citing Doe, 487 U.S. at 208 n. 6); Com. v. Baust, 89 Va. Cir. 267, at *4(2014).

20

Today, technology has provided citizens with shortcuts to entering passcodes by utilizing

21

biometric features. The question, then, is whether a suspect can be compelled to use his finger,

22

thumb, iris, or other biometric feature to unlock a digital device.

I

>

CO

•

O

5 tj
^ -K
cti

00

Q

t3 B
<D

•ti

<D

23

Testimony is not restricted to verbal or written communications. Acts that imply

24

assertions of fact can constitute testimonial communication for the purposes ofthe Fifth

25

Amendment. Doe,487 U.S. at 208. Specifically, a witness's "act of production itself could

26

qualify as testimonial if conceding the existence, possession and control, and authenticity of the

27

documents tended to incriminate them." In re Grand Jury Subpoena Duces Tecum Dated Mar.

28

25, 2011,670 F.3d 1335, 1343 (11th Cir. 2012)(citing Fisher, 425 U.S. at 410).
4

 Case 4:19-mj-70053-KAW Document 1 Filed 01/10/19 Page 5 of 9

1
2

furnishing a blood sample, submitting to fingerprinting, providing a handwriting or voice

3

exemplar, or standing in a lineup. Doe,487 U.S. at 210. "The distinction which has emerged,

4

often expressed in different ways, is that the privilege is a bar against compelling

5

'communieations' or 'testimony,' but that eompulsion whieh makes a suspeet or aceused the

6

souree of'real or physical evidence' does not violate it." Schmerber v. California, 384 U.S. 757,

7

764(1966); see also Doe v. United States, 487 U.S. at 210.

8

i 
r ^ ^
-t-'

<^-l

The Proposed Use of Biometrie Features is Testimonial

9

The Court finds that utilizing a biometrie feature to unlock an electronic device is not akin

10

to submitting to fingerprinting or a DNA swab, because it differs in two fundamental ways. First,

11

the Government eoncedes that a finger, thumb, or other biometrie feature may be used to unloek a

12

device in lieu of a passeode.(Aff.^ 17a.) In this eontext, biometrie features serve the same

13

purpose of a passeode, whieh is to seeure the owner's content, pragmatieally rendering them

14

functionally equivalent. As the Government acknowledges, there are times when the deviee will

15

not accept the hiometric feature and require the user to type in the passeode to unlock the device.

16

(Aff.f 17g.) For example, a passeode is generally required "when a deviee has been restarted,

17

inactive, or has not been unloeked for a certain period of time." Id. This is, no doubt, a seeurity

18

feature to ensure that someone without the passeode cannot readily access the contents of the

19

phone. Indeed, the Government expresses some urgency with the need to compel the use ofthe

20

biometrie features to bypass the need to enter a passeode. Id. This urgency appears to be rooted in

21

the Government's inability to eompel the produetion ofthe passeode under the current

22

jurisprudence. It follows, however, that if a person cannot be compelled to provide a passeode

23

because it is a testimonial communication, a person cannot be compelled to provide one's finger,

24

thumb, iris, faee, or other biometrie feature to unlock that same device.

O

Q^
VI

i.

c3

.a o
!/)

Notwithstanding, certain acts, while ineriminating, are not within the privilege, such as

n

B Vi

55 Q
B
<U

0)

25

Second, requiring someone to affix their finger or thumb^ to a digital device is

26

fundamentally different than requiring a suspeet to submit to fingerprinting. A finger or thumb

27

28

^ The finger and thumb scans versus actual fingerprints are one example. The same rationale
applies to using faeial recognition or an optical scan versus submitting to a lineup.

 Case 4:19-mj-70053-KAW Document 1 Filed 01/10/19 Page 6 of 9

cS

.a o
id t4H
c/5

scan used to unlock a device indicates that the device belongs to a particular individual. In other

2

words, the act concedes that the phone was in the possession and control of the suspect, and

3

authenticates ownership or access to the phone and all of its digital contents. Thus, the act of

4

unlocking a phone with a finger or thumb scan far exceeds the "physical evidence" created when a

5

suspect submits to fingerprinting to merely compare his fingerprints to existing physical evidence

6

(another fingerprint) found at a crime scene, because there is no comparison or witness

7

corroboration required to confirm a positive match. Instead, a successful finger or thumb scan

8

confirms ownership or control of the device, and, unlike fmgeiprints, the authentication of its

9

contents cannot be reasonably refuted. In a similar situation, the court in In re Application for a

10

Search Warrant observed that "[wjith a touch of a finger, a suspect is testifying that he or she has

11

accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that

12

he or she currently has some level of control over or relatively significant connection to the phone

13

and its contents." 236 F. Supp. 3d 1066, 1073 (N.D. 111. 2017). It is also noteworthy that many

14

smartphone applications providing access to personal, private information—including medical

15

records and financial accounts—now allow users to utilize hiometric features in lieu of passcodes

16

to access those records. As Judge Weisman astutely observed, using a fingerprint to place

17

someone at a particular location is a starkly different scenario than using a finger scan "to access a

18

database of someone's most private information." In re Application for a Search Warrant, 236 F.

19

Supp. 3d at 1073. Thus, the undersigned finds that a hiometric feature is analogous to the

20

nonverbal, physiological responses elicited during a polygraph test, which are used to determine

21

guilt or innocence, and are considered testimonial. See Schmerher, 384 U.S. at 764.

O

Q td
00 "d

s V
GO

1

Q

Td

n

<u

<u

"►I ^
='i

22

While the Court sympathizes with the Government's interest in accessing the contents of

23

any electronic devices it might lawfully seize, there are other ways that the Government might

24

access the content that do not trample on the Fifth Amendment. In the instant matter, the

25

Government may obtain any Facebook Messenger communications from Facebook under the

26

Stored Communications Act or warrant based on probable cause. While it may he more expedient

27

to circumvent Facebook, and attempt to gain access by infringing on the Fifth Amendment's

28

privilege against self-incrimination, it is an abuse of power and is unconstitutional. That the
6

 Case 4:19-mj-70053-KAW Document 1 Filed 01/10/19 Page 7 of 9

1

Government may never be able to access the complete contents of a digital device, does not affect

2

the analysis.

3
4

ii.

The Foregone Conclusion Doctrine Does Not Apply

The foregone conclusion doctrine is an application ofthe Fifth Amendment"by which the

5

Government can show that no testimony is at issue." In re Grand Jury Subpoena Duces Tecum

6

Dated Mar. 25, 2011,670 F.3d 1335, 1343 n. 19(11th Cir. 2012). Specifically,"[wjhenthe

7

'existence and location' of the documents under subpoena are a 'foregone conclusion' and the

8

witness 'adds little or nothing to the sum total of the Government's information by conceding that

9

he in fact has the [documents],' then no Fifth Amendment right is touched because the 'question is

10

not of testimony but of surrender.'" In re Grand Jury Subpoena, Dated Apr. 18, 2003, 383 F.3d

11

905,910(9th Cir. 2004)(quoting Fisher v. United States, 425 U.S. 391, 411 (1976)).

12

Notwithstanding, a witness's response to a subpoena designed to elicit potentially incriminating

13

evidence is testimonial. United States v. Hubbell, 530 U.S. 27, 43 (2000). The foregone conclusion

14

doctrine not does not apply when the Government cannot show prior knowledge of the existence

o

15

or the whereabouts of the documents ultimately produced in response to a subpoena. Id. at 45.

5? Q
B

16

'g
o
O

U
fj ,
M-H

o

O

(D

Today's mobile phones are not comparable to other storage equipment, be it physical or

17

digital, and are entitled to greater privacy protection. See Riley v. California, 573 U.S.

, 134

18

S. Ct. 2473, 2445, 2489(2014)(An unlocked smartphone cannot be searched incident to arrest

19

other than to determine whether it may be used as a weapon.); see also Carpenter, 138 S. Ct. at

20

2220. In so finding, the Supreme Court acknowledged that smartphones are minicomputers with

21

the capability to make phone calls, a search of which "would typically expose to the government

22

far more than the most exhaustive search of a house: A phone not only contains in digital form

23

many sensitive records previously found in the home; it also contains a broad array of private

24

information never found in a home in any form—unless the phone is [present]." Riley, 134 S. Ct.

25

at 2491. Further, "[i]n the cell phone context... it is reasonable to expect that incriminating

26

information will be found on a phone regardless of when the crime occurs." Id. at 2492. Thus,

27

mobile phones are subject to different treatment than more traditional storage devices, such as

28

safes, and should be afforded more protection.

t:
o

7

 Case 4:19-mj-70053-KAW Document 1 Filed 01/10/19 Page 8 of 9

1

It follows that any argument that compelling a suspect to provide a biometric feature to

2

access documents and data is synonymous with producing documents pursuant to a subpoena

3

would fail. As the Riley court recognized, smartphones contain large amounts of data, including

4

GPS location data and sensitive records, the full contents of which cannot be anticipated by law

5

enforcement. See Riley, 134 S. Ct. at 2492.^ Consequently, the Government inherently lacks the

6

requisite prior knowledge of the information and documents that could he obtained via a search of

7

these unknown digital devices, such that it would not be a question of mere surrender. See

8

Hubbell, 530 U.S. at 44-45. Additionally, the Government would be unable to articulate facts to

9

compel the unlocking of devices using biometric features by unknown persons the Government

10

could not possibly anticipate being present during the execution of the search warrant. Indeed, the

11

affidavit makes no attempt to do so.

a

12

For these reasons, the foregone conclusion doctrine does not apply.

P

13

///

.2 o

14

///

o
id
M

O

Q
on

C

15

///

+-> Q

16

///

17

///

18

///

19

///

20

///

21

///

a

00 ^

T3 fi
<D

D

■a ^

22
23
24

25
26
27

28

^ Compelling a suspect to unlock a phone to allow the viewing of applications installed on a
smartphone could be self-incriminating and not he a foregone conclusion. For example, a mobile
application for a previously unknown cloud storage service—e.g. Drophox on an iPhone, which
also utilizes iCloud—is tantamount to identifying the location, and ultimately producing the
contents, of a locked filing cabinet that the Government did not know existed. See Hubbell, 530

U.S. at 45 (act of production testimonial, because the Government had no knowledge of the
existence or location of documents); of. Fisher, 425 U.S. at 411 (Compliance with a summons
directing the taxpayer to produce the accountant's documents was not testimonial, because the
Government knew of the existence of the documents and who had possession of them, and did not

rely on the testimony of the taxpayer to prove authenticity.). Similarly, a suspect's access to a
mobile application for hank accounts could aid in "following the money" even if the accounts are
not in the suspect's name and were otherwise unknown to the Government.
8

 Case 4:19-mj-70053-KAW Document 1 Filed 01/10/19 Page 9 of 9

1
2

For the reasons set forth above, the Government's search warrant application is DENIED.

3

The Government may not compel or otherwise utilize fingers, thumbs, facial recognition,

4

optical/iris, or any other biometric feature to unlock electronic devices. Furthermore, the

5

Government may only seize those digital devices that law enforcement reasonably believes are

6

owned and/or possessed by the two suspects named in the affidavit. The Government may submit

7

a new search warrant application consistent with this order.

8
9
10
11

cd

CONCLUSION

12

Finally, the undersigned hereby SEALS the search warrant application, including all

attachments thereto. This order, however, is a matter of public record and shall, accordingly, be
issued a case number and docketed by the Clerk of the Court.
IT IS SO ORDERED.

Dated: January 10, 2019

13
-h^

cd

.a o
ij ^4-1
CO

O

S
CO
tu

cci

n

15

■ ■

c/)

O)

S

T3

E

<D

(D

-f-i

14

16
17
18
19
20
21
22

23
24
25

26
27
28

pis A. WESTMORE
United States Magistrate Judge