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Compelled Biometric Access Legal Under 4th, 5th Amendments

July 2, 2020, 8:25 PM

The government may compel individuals to unlock devices using biometrics during the execution of a search warrant without violating the individual’s Fourth or Fifth Amendment rights, a federal court in Kentucky ruled Thursday.

The federal government sought to obtain a search warrant to seize evidence on cellphones, computers and other electronic devices found on the premises that contain evidence of, or were the instruments of, alleged crime. That warrant also sought authorization to force all individuals present to provide biometrics to unlock devices.

Compelled biometrics as requested in the search warrant are beyond the scope of seizing and searching electronic devices, but are more akin to fingerprinting individuals, the U.S. District Court for the Eastern District of Kentucky said.

U.S. Supreme Court precedent has unquestionably held that the taking of a fingerprint is a search, and applying the same standards to biometric access, the government must have reasonable suspicion that the individual providing the biometrics committed a criminal act outlined in the warrant, the opinion said.

“This standard is a reasonable limitation on the scope of the warrant because the search and seizure are directly tied to the offense or its perpetrator, not just anyone who happens to be present during warrant execution, like the mailman,” Judge Matthew A. Stinnett wrote for the court.

The warrant requested by the government was overly broad, because it sought to compel all individuals present at the scene to provide biometrics, the court concluded, striking the request.

Finally, there was no Fifth Amendment privilege against providing biometrics so that law enforcement may access an electronic device, Stinnett said.

The use of biometrics might be compelled, and might also lead to incriminating evidence, but neither of these things make it testimonial, the opinion said.

The U.S. Attorney’s office represented the government. Jarrod Beck of the Law Office of R. Michael Murphy PLLC served as amicus curiae.

The case is Favorite In re Search Warrant No. 5165, 2020 BL 246200, E.D. Ky., No. 5:20-MJ-5165, 7/2/20.

To contact the reporter on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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