On Friday, Judge David C. Nye, issued a decision, In re A White Google Pixel 3 Xl Cellphone in a Black Incipio Case, 2019 U.S. Dist. LEXIS 125243 (D. Idaho July 26. 2019) granting the Government's motion to reverse a magistrate judge's order denying an application to place an individual's fingerprint on a smartphone so it could be unlocked and examined forensically. The Google Pixel cellphone was seized pursuant to a search warrant that allowed the search of the defendant's residence. The government applied for an additional search warrant to compel the subject to provide the biometric input needed to unlock the phone. The magistrate judge held that warrant would violate the Fifth Amendment by requiring the individual to give self-incriminating testimony.
Judge Nye noted that the cellphone in question could not be unlocked with a fingerprint 48 hours after it was last unlocked. Because the Magistrate Judge took several days to issue his order, and the Government waited 8 days to file its motion to reserve, the decision in this case would be moot. Even though there is no actual controversy, this situation qualifies as a controversy capable of repetition yet evading review, which is an exception to the general rule requiring a controversy. The Court found that, "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." Id. at *6.
Neither the Supreme Court nor any circuit court has issued a decision addressing the issue of unlocking a smartphone or other computer using biometric information. Judge Nye concluded that case law on this issue distinguishes between biometric information and passcodes, the latter being testimonial. There is a difference between compelling a person to communicate something and doing something that, "displays a physical characteristic that might be incriminating." Id. at 16. Blood samples can be provided, fingerprints taken, and handwriting exemplars given without a violation of the Fifth Amendment. "Where, as here, the Government agents will pick the fingers to be pressed on the Touch ID sensor, there is no need to engage the thought process of the subject 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." Id. at *16-17. Fingerprints used to unlock smartphones are not testimonial evidence.