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In re Search of a White Google Pixel 3 XL Cellphone In A Black Incipio Case

United States District Court, D. Idaho

July 26, 2019

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 JUDGE'S ORDER

          David C. Nye, Chief U.S. District Court Judge.

         I. INTRODUCTION

         The 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.

         II. BACKGROUND

         The 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 residence.

         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 that bathroom.

         The 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.

         The 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 this issue.

         III. JURISDICTION

         The 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.

         IV. MOOTNESS

         The 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[1] 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).

         The 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.

         Article 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. Id.

         In this 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.

         This 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 ...


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