United States District Court, D. Idaho
IN THE MATTER OF THE SEARCH OF A white Google Pixel 3 XL cellphone in a black Incipio case.
DECISION AND ORDER ON REVIEW OF MAGISTRATE
C. Nye, Chief U.S. District Court Judge.
United States seeks review of a Magistrate Judge's order
denying the Government's search warrant application. Dkt.
5. The Government's application sought permission to
place a subject's finger on a cellphone to unlock the
phone to conduct a forensic search. The Magistrate Judge
denied the application, ruling that the requested search
warrant would violate the subject's Fifth Amendment
rights. Dkt. 3. The Government subsequently filed a Motion to
Reverse or Vacate the Magistrate's Order. Dkt. 5. Upon
review, and for the reasons set forth below, the Court GRANTS
the Government's Motion.
Government was investigating an individual believed to be in
possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(5)(B). As part of that investigation, the
Government properly obtained a search warrant authorizing a
search of the individual, his vehicle, and his residence. The
warrant permitted seizure of “desktop computers,
notebook computers, mobile phones, tablets, server computers,
and network hardware” if such “constitute
evidence of the commission of a criminal offense, contraband,
the fruits of crime, or property designed or intended for use
or which is or has been used as the means of committing a
criminal offense.” Dkt. 3, at 2. The Government used
the warrant to search the residence and to seize, among other
things, a Google Pixel 3 XL cellphone from a bathroom in the
seized cellphone was “locked” and required a
swipe pattern (“passcode”) or a fingerprint to
unlock it. After the original warrant was served, an
authorized law enforcement officer brought a sworn criminal
Complaint against the individual and the Magistrate Judge
signed a bench warrant authorizing the individual's
arrest. The Government then applied for an additional search
warrant authorizing law enforcement to “compel [the
subject] to provide biometric input needed to unlock the . .
. cellphone . . . [by] press[ing] any finger and/or thumb of
any hand of [the individual] against the sensor of the
fingerprint reader used to unlock the . . . phone.”
Dkt. 3, at 2. The Government's stated purpose in seeking
the authorization was “to authorize law enforcement to
press the fingers, including thumbs, of [the subject] to the
touch identification sensor on the Google Pixel 3 XL
cellphone.” Affidavit in Supp. Of App. for Search
Warrant, Dkt. 2, at ¶ 18. The Government further
represented in its application for the additional warrant
that it already knew this particular cellphone belonged to
the individual who was subject to the warrant because the
individual stated-when questioned at his residence by police
officers executing the warrant-that his phone was in the
bathroom where he had been just prior to answering the door.
The Google Pixel 3 XL cellphone was subsequently found in
Magistrate Judge issued an order denying the additional
warrant on the basis that the warrant, if granted, would
violate the individual's Fifth Amendment rights because
it would compel the individual to give self-incriminating
testimony. The Magistrate Judge further held that the
violation of the individual's Fifth Amendment rights
would violate the Fourth Amendment.
Government filed a motion with this Court to reverse or
vacate the Magistrate Judge's order claiming that using a
fingerprint to open a cellphone is not a Fifth Amendment
violation. Additionally, the Government asserts there is a
split at the magistrate judge level of this District Court on
Federal Magistrates Act gives magistrate judges the authority
to decide non-dispositive pretrial matters. 28 U.S.C.
§ 636(b)(1)(A). Decisions regarding search warrants
are part of that authority. See Gomez v. United
States, 490 U.S. 858, 868 n.16 (1989). The Act also
gives district judges the authority to review or reconsider
any non-dispositive pretrial matter. 28 U.S.C. §
636(b)(1)(A); See also Fed. Rule Crim Proc. 59(b)(2) and
(3). Thus, the Magistrate Judge had the authority to
issue the order and this Court has the authority to review
the Magistrate Judge's order.
ability to unlock a cellphone with a fingerprint (biometric
encryption) expires after 48 hours of not unlocking it. At
that point, a passcode of some type must be used. Here, it
took the Magistrate Judge a few days to issue the order
denying the warrant and then took the Government eight days to
file its motion for review. Consequently, any decision by the
court in this case will have no impact on this case. The
Government simply can no longer unlock the cellphone with a
fingerprint. The issue is, therefore, moot under County
of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
Government argues that there are two exceptions to the
mootness doctrine applicable here. First, the issue is
capable of repetition yet evading review. Second, the two
magistrate judges in the District of Idaho appear to be split
regarding the use of biometrics in search warrants. Both
exceptions will be discussed.
III of the Constitution limits federal court jurisdiction to
“cases and controversies.” Hamamoto v.
Ige, 881 F.3d 719 (9th Cir. 2018). Thus, to qualify as a
case fit for federal court jurisdiction, an actual
controversy must be extant at all stages of review, not
merely at the time the complaint is filed. Davis v. Fed.
Election Comm'n, 554 U.S. 724, 732-33 (2008). An
exception exists for controversies that are “capable of
repetition, yet evading review.” Hamamoto, at
721 (quoting Kingdomware Techs, Inc. v. United
States, 136 S.Ct. 1969 (2016) (“Although a case
would generally be moot in such circumstances, this
Court's precedents recognize an exception to the mootness
doctrine for a controversy that is 'capable of
repetition, yet evading review.'”)). According to
the Ninth Circuit, that exception only applies in limited
situations, where (1) the challenged action is in its
duration too short to be fully litigated prior to cessation
or expiration, and (2) there is a reasonable expectation that
the same complaining party will be subject to the same action
again. Hamamoto, at 721. The Ninth Circuit further
explained that to fit this “exceptional
situation” exception, the controversy must be of
inherently limited duration. Id. That is, the
controversy will only ever present a live action until a
particular date, after which the alleged injury will either
cease or no longer be redressable. The limited duration of
the controversy must be clear at the action's inception.
case, the Government is the complaining party. The prevalence
of cellphones continues to rise and the Government's
applications for search warrants for biometric data likewise
continues to rise. A search warrant must be processed within
48 hours of the Government's seizure of a cellphone or
the biometric data becomes meaningless. This situation fits
the “capable of repetition, yet evading review”
exception to the mootness doctrine. The Court concludes that
this motion can be heard and decided despite the mootness of
the issue due to this exceptional situation.
Court is not prepared to rule that this situation also fits
the split of authority exception within this District. The
Government has cited two cases in which one magistrate judge
granted search warrants for biometric data relating to a
cellphone. The Government then juxtaposes those two cases
against this case to argue that a split ...