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In re Search of a Residence in Oakland

United States District Court, N.D. California

December 10, 2019


          ORDER RE REVIEW RE: DKT. NO. 2


         The United States seeks review of an order by Magistrate Judge Kandis A. Westmore denying an application for a search warrant that would have allowed law enforcement officers to compel the use of a fingerprint or face scan to unlock cell phones and other devices. Dkt. No. 2. Because the government abandoned the original warrant for a new one that omitted the biometric use condition, the request for review is dismissed as moot. The government's request for vacatur of the order, Dkt. No. 6, is also denied.


         The salient facts are straightforward. In January 2019, the United States Attorney's Office for the Northern District of California was investigating an alleged scheme to extort a victim via the Facebook Messenger service. Dkt. No. 1 at 1. The government applied for a warrant to search a residence in Oakland, California, for evidence of the scheme. Id. The application sought to seize and search cell phones, laptops and other digital devices found at the residence. To unlock those devices, the government requested authority for law enforcement personnel to “press or swipe the fingers (including thumbs) of any individual” reasonably believed to be the user on the device's fingerprint scanner. Dkt. No. 11, Attachment B ¶ 7. It also sought authorization to obtain access through a face scan. Id.

         Judge Westmore denied the warrant application. In a thoughtful decision, Judge Westmore found probable cause to search the residence, but concluded that the request to compel the use of biometric features was a step too far under the Fourth and Fifth Amendments. Dkt. No. 1 at 1-2. The analysis started with recent opinions by the Supreme Court recognizing the centrality of cell phones and digital devices in modern life, and the resulting need to ensure that constitutional safeguards against arbitrary access to personal information by government officials are maintained as technology evolves. Id. at 2-4, 7-8; see also Carpenter v. United States, 138 S.Ct. 2206, 2213-14, 2018-20 (2018); Riley v. California, 573 U.S. 373, 396-99, 134 S.Ct. 2473 (2014). Judge Westmore found that using biometric inputs to unlock devices was the next-gen version of a typed passcode. Since individuals cannot be compelled to provide passcodes to the government, Judge Westmore reasoned the government should also be barred from compelling the use of a fingerprint or face scan to open a device. See Dkt. No. 1 at 5-6.

         The government did not seek an immediate review of the order denying the warrant, nor did it ask for a stay of decision or pursue any other course to preserve the original application. Instead, the government abandoned the application in favor of a new one that dropped the request for compelled use of biometric features. Dkt. No. 2 at 8. Judge Westmore promptly issued a warrant on the basis of the new application, and that warrant was executed a few days later. Id.

         Approximately two weeks after the denial order was filed, the government submitted a motion for review by this Court. Dkt. No. 2. The government challenged only the holding that individuals cannot be compelled to use their biometric features to allow the government to unlock personal digital devices. Id. at 4-5.

         Because the record showed that the government had obtained and executed a warrant based on a new application, in lieu of the one that had been denied, the Court asked at oral argument whether the motion was moot. See Dkt. No. 5. The Court cited United States v. Microsoft, 138 S.Ct. 1186, 1188 (2018), where the Supreme Court held that a challenge to a warrant for electronic records became moot when the original warrant was replaced in toto with a new one, as happened here, albeit for different reasons. The Court invited the government to brief the question, and the issue of what the disposition should be if mootness applied. The government filed a response contending that the motion was proper under the exception to mootness for conduct capable of repetition yet evading review. Dkt. No. 6 at 1-3. The government also argued that if the motion were moot, the Court should nevertheless vacate the order as a matter of equity. Id. at 3-4.



         This case raises a number of highly engaging issues, but the one that is dispositive is mootness. Article III limits the jurisdiction of the federal courts to actual cases or controversies. Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055 (1997). The Court has no jurisdiction to hear a dispute that is not live and capable of affecting a litigant's rights. Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249 (1990) (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402 (1971)). Consequently, ensuring that there is an active case here is the threshold inquiry.

         The record establishes that there is not a live dispute before the Court. When the government opted to abandon the original warrant, and replace it with a new one, the original warrant application was rendered moot. See Microsoft Corp., 138 S.Ct. at 1188 (2018); Koppers Indus. v. EPA, 902 F.2d 756, 758 (9th Cir. 1990); In re Bunker Ltd. Partnership, 820 F.2d 308, 310-11 (9th Cir. 1987). There is “no ‘live controversy'” because “a reversal of the denial” of the original warrant application “will not provide [the government] with actual, affirmative relief.” Koppers, 902 F.2d at 758.

         The government does not meaningfully contest this conclusion, but instead argues that jurisdiction may be found under an exception for disputes that are “capable of repetition, yet evading review.” See, e.g., Dkt. No. 6 at 1-3; see also Koppers, 902 F.2d at 758-59 (citing Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279 (1911)). A dispute is capable of repetition if there is a reasonable expectation the complaining party “‘would be subjected to the same action again'; it is likely to evade review if ‘the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration.'” Unabom Trial Media Coal. v. United States District Court, 183 F.3d 949, 950 (9th Cir. 1999) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347 (1975) (per curiam)). While the government appears to regard the exception as readily available, it applies “only in ‘exceptional situations,' and only when both factors are ‘simultaneously present.'” Id. (quoting Spencer v. Kemma, 523 U.S. 1, 17, 118 S.Ct. 978 (1998)).

         Nothing in the record indicates that the situation here is exceptional in any way, or that either factor has been satisfied. The government says that it has demonstrated the capable-of-repetition factor because Judge Westmore “has made clear” that she will not approve a warrant application with a compelled biometric provision. Dkt. No. 6 at 2. The point is not well-taken. To start, Judge Westmore is far from the only magistrate judge in our district who reviews warrant applications. There is more than a fair likelihood that the government will have occasion to raise the biometric issue in an application before another judge, who will not be bound in any way by Judge Westmore's order. The government also ignores the critical fact that its inability to obtain review was a self-inflicted consequence. The government made no effort to stand on the original warrant or preserve the issue for consideration by this Court. ...

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