Court Has No Problem With All House Residents Being Forced To Hand Over Fingers To Law Enforcement
from the fifth-amendment-five-finger-discount dept
A ruling has been handed down by a federal judge finding the government’s demands for fingerprints from multiple residents of a house does not implicate the Fifth Amendment. [h/t Brad Heath]
The underlying case — still under seal — bears some resemblance to one we discussed here about a year ago. Law enforcement sought a search warrant for a residence, which would allegedly house devices containing child pornography. The devices were suspected to be Apple products, which can be opened with fingerprints. The warrant asked for permission to compel the residents to supply their fingerprints — both to unlock the devices and to ascribe possession to the person whose fingerprint unlocked them.
Surprisingly, the magistrate judge rejected the government’s request. The government appealed the magistrate’s rejection, kicking it up a level in the federal court system. The court notes in its ruling [PDF] its reviews of magistrates’ decisions isn’t normally adversarial, but this case raises some questions in need of additional viewpoints.
Ordinarily, review of the magistrate judge’s decision on a warrant application would be ex parte. But because the magistrate judge’s thoughtful opinion addressed a novel question on the scope of the Fifth Amendment’s privilege against self-incrimination, the Court invited the Federal Defender Program in this District to file an amicus brief to defend the decision (the government did not object to the amicus participation). The Court is grateful for the Federal Defender Program’s excellent service in fulfilling this request.
The decision here comes down on the side of the government, decisively so. But that may be due to the specifics of the fingerprint application. Rather than directly asking the residents of the searched home to use Apple’s TouchID to unlock the devices (which would require a specific finger known only to each resident), law enforcement officers will choose which finger each suspect must apply to the device.
Specifically, the constitutional text on which the right is premised only prevents the government from compelling a person from being a “witness” against himself. U.S. Const., amend. V. The Fifth Amendment provides, in pertinent part: “No person … shall be compelled in any criminal case to be a witness against himself.” Witnesses provide testimony, so that specifically is the forbidden compulsion: the government cannot force someone to provide a communication that is “testimonial” in character…
The same holds true for the fingerprint seizure sought by the government here. As noted earlier, and worth emphasizing again, the government agents will pick the fingers to be pressed on the Touch ID sensor, Affidavit ¶ 39 n.9, ¶ 41, so there is no need to engage the thought process of any of the residents at all in effectuating the seizure. The application of the fingerprint to the sensor is simply the seizure of a physical characteristic, and the fingerprint by itself does not communicate anything.
The court likely would have reached the same conclusion even if the government had demanded residents choose fingers themselves. (The court does not state — nor is it reflected anywhere in the court’s discussion — that law enforcement is limited to one finger from each resident. To keep this from becoming a mockery of the court’s intent, you would think this would be the case. Nothing on the record indicates, however, that the government gets one finger per person.)
What’s depicted here clearly falls in line with previous decisions related to the Fifth Amendment implications of providing fingerprints to unlock devices. Physical properties like fingerprints haven’t been considered testimonial because they’re apparent, visible, and clearly linked to the individual under suspicion. Handing over a fingerprint requires no “testimonial” effort, courts have decided, even if the non-testimonial action produces a wealth of incriminating evidence.
The compelled production of passwords and PINs is still an open issue. How open is a matter of (judicial) opinion. So far, refusing the government’s offer to provide the keys to possibly incriminating evidence has only conclusively proven to be a good way to spend an indefinite amount of time in jail. But it at least provides the slimmest hope a judge will find demands for passwords a violation of the Fifth Amendment. The case for fingerprints being testimonial hasn’t found much sympathy in the courts, despite the application of fingerprints ultimately being every bit as revealing as typing in a password.