United States District Court, N.D. California
IN RE SEARCH OF A RESIDENCE IN OAKLAND, CALIFORNIA
ORDER RE REVIEW RE: DKT. NO. 2
DONATO UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.
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.
THE MOTION IS MOOT
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.
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.
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)).
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. ...