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Court Denies Warrant That Would Force Individuals to Unlock Their Phones

By Casey C. Sullivan, Esq. | Last updated on

A U.S. district court in Chicago recently denied a warrant that would have allowed the government to compel any individual at the searched location to unlock his iPhone, iPad, or other Apple electronic device that was protected Touch ID. The warrant application raises serious Fourth and Fifth Amendment concerns, the court explained, and fails to establish sufficient probable cause for the request that "is neither limited to a particular person nor a particular device."

Last summer, the U.S. government obtained a similar warrant to compel anyone in a building in California to unlock their phones with their fingerprints, but the recent ruling out of Illinois shows how such requests can meet resistance.

Search the House and Unlock the Phones

The warrant here was requested as part of an investigation into child pornography. Government officials sought a warrant to search a building and seize electronic storage media and computer equipment. The court had no problem granting that request.

But the application also sought "the authority to compel any individual who is present at the subject premises at the time of the search to provide his or her fingerprints and/or thumbprints 'onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device.'" That request U.S. Magistrate Judge M. David Weisman denied.

Court Cites Fourth and Fifth Amendment Concerns

The government was seeking the right to forcibly fingerprint any person present, whether a resident or visitor, Judge Weisman explained. While there is "no protectable Fourth Amendment interest in the print itself," the court said, "the method of obtaining the print" raises Fourth Amendment issues, as it requires the temporary detention of anyone asked to provide their prints.

The district court analogized the forced fingerprinting requested here to that in United States v. Guevara-Martinez. There, immigration officers fingerprinted a man after he was arrested for transporting narcotics, seeking to determine his immigration status. The initial stop leading to the arrest was illegal, however, and thus the fingerprints had to be suppressed due to the exclusionary rule.

"This Court agrees that the context in which fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment," the court's opinion explained.

Given the facts articulated in the warrant application, "the Court does not believe such Fourth Amendment intrusions are justified".

Further, such fingerprinting could violate Constitutional protections against self-incrimination as well. If fingerprinting is given a testimonial character -- an admission that the phone or tablet in question is one's own, for example -- the fingerprinting may offend the Fifth Amendment.

Such Requests Becoming Standard

Finally, the court expressed concern that such requests were becoming increasingly standard. As Judge Weisman writes:

The government further noted "[t]his is the language that we are making standard in all of our search warrants." This declaration of standardization is perhaps the crux of the problem. As the Court hopes it is plain from the above, the issues presented here require a fact-intensive inquiry both for purposes of the Fourth Amendment and the Fifth Amendment.

This does not mean, of course, that such requests are always suspect, the judge explained. Where the information sought is a "foregone conclusion" and there is a more individualized showing between individuals and criminal conduct, both the Fourth and Fifth Amendment concerns may be satisfied. "We simply are not there yet," the judge concluded.

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