By Adam T. Johnson
According to the Pew Research Center, 77 percent of Americans own a smartphone.1 These devices employ encryption technology when not in use, and require a user’s passcode or other biometric feature to unlock them. Encryption, though a blessing for domestic harmony, poses significant barriers to law enforcement investigations.2 These barriers can be overcome, but it is not only technological barriers that prevent access to these devices. The courts, outpaced by technology—and that’s fine, it’s not a knock—are grappling with applications of the 4th and 5th Amendments to a wide variety of searches and compulsory processes in the ever-evolving technological landscape.
Last year in State v. Diamond, the Minnesota Supreme Court held as a matter of first impression that it is not a violation of the 5th Amendment for a district court to order a criminal defendant to provide a fingerprint or thumbprint so that his smartphone may be unlocked.3 On the one hand, Diamond was not a watershed case. Some might say Diamond presents as a somewhat conventional restatement of established Minnesota law allowing for the compulsory production of some kind of non-testimonial evidence, such as appearing in a line-up, having one’s body measured, or requiring a defendant to produce a hand-writing exemplar.4 In this regard, Diamond is not all that significant; it is not a cloudburst in 5th Amendment law.
On the other hand—and there are only two hands in this apothegm—a line-up, a measurement of the body, and a hand-writing exemplar are all incapable of decrypting a device like a smartphone. Additionally, a line-up, a body measurement, and a hand-writing exemplar do not constitute acts of production that may betray the contents of a person’s mind, and much, much more. So Diamond does bring us into new and important (and unsettled) territory. Diamond also begs a series of important questions: If the 5th Amendment is not offended by the compulsory process of a thumbprint or fingerprint, is it also constitutional to require a defendant to provide his smartphone passcode, either orally or in writing? If not why, why not? If so, how come? Was Diamond correctly decided? What lies ahead? It is the answers to these questions that I attempt to take up presently.
The 5th Amendment
The clause from the 5th Amendment germane to this article is the one prescribing that no person shall be “compelled in any criminal case to be a witness against himself.”5 The Minnesota Constitution contains an identical clause in its Bill of Rights.6 In short, this clause bars the government from (1) compelling a defendant (2) to make a testimonial communication to the state (3) that is incriminating.7 The constitutional foundation underlying the privilege is the respect a government must accord to the dignity and integrity of its citizens.8 The privilege also helps to ensure the appropriate state-individual balance by requiring the government to “shoulder the entire load” in building and bringing a criminal case.9 As stated by the Supreme Court in Estelle v. Smith, “[t]he essence of this basic constitutional principle is the requirement that the [s]tate which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.”10 And so we can all remain silent, kind of.11
Over the course of our nation’s history—but mostly during the 20th century—the 5th Amendment has been continually revisited by jurists and scholars in innumerable contexts. It is a frequent guest in the case law, and it is only natural that it would be. People, both defendant and officer, are wont to gab. In cases where the government seeks to compel some kind of process (say, the production of documents by way of a subpoena), the physical act itself may implicate the protections of the 5th Amendment. This is so because a physical act is deemed testimonial when the act is a communication that “itself, explicitly or implicitly, relate[s] a factual assertion or disclose[s] information.”12 In other instances, an act may not be testimonial where the act provides “real or physical evidence” that is “used solely to measure physical properties,” or where the act is used to “exhibit physical characteristics.”13
In these examples, a distinction exists between the testimonial act of producing documents as evidence and the nontestimonial act of producing the body as evidence. This is the distinction that led our own state Supreme Court to hold in Diamond, rightly or wrongly, that there was nothing “testimonial” in requiring the defendant to supply his fingerprint. As stated by the court in Diamond, there was not “any communicative testimony inherent in providing the fingerprint,” and the act did not “reveal the contents of [the defendant’s] mind.”14 This is only partially true, which is a variant on saying this may not be true at all. You see, Diamond provided his fingerprint directly onto a seized phone during a court proceeding after being held in civil contempt and warned about the consequences of criminal contempt.
In providing his fingerprint onto the seized device, Diamond committed an “act” that was testimonial in nature: His unlocking of the phone with his finger established that the phone, in fact, belonged to him. In other words, the act conceded that the phone was at one time in his possession and control, and authenticated either ownership or access to the phone and all of its contents.15 As stated by a federal district court in Illinois,
“[w]ith the touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capability, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.”16
It is unclear from the Minnesota Supreme Court’s opinion in Diamond what evidence existed to connect Diamond to the seized cellphone prior to his unlocking it. The opinion states only that the “police lawfully seized a cellphone from [Diamond], a burglary suspect, and attempted to execute a valid warrant to search the cellphone.”17 On the topic of evidence connecting Diamond to the phone, the court of appeals opinion states that Diamond “was booked at the Scott County jail, where staff collected and stored his property, including his shoes and cellphone.”18 It may have been the case that Diamond’s possession and control of the phone were undisputed—or, stated differently, that police already knew that the phone belonged to Diamond, making any testimonial aspect in his unlocking it a “foregone conclusion.” In any event, the Minnesota Supreme Court did not discuss this doctrine.19 Instead the Court stated that there was not “any communicative testimony inherent in providing the fingerprint.” This is a potential crack in Diamond’s foundation, which will be discussed more fully below.
The “foregone conclusion” doctrine
The Supreme Court has marked out two ways in which an “act of production” is considered not testimonial. The first, as briefly identified above, exists where the act of production does not betray the contents or processes of a person’s mind (their knowledge, thoughts, or beliefs). This is the theory that drove the decision in Diamond. The second class of cases fall into what has been coined the “foregone conclusion” grouping. Under this doctrine, an act of production is not testimonial, even if the act conveys a fact regarding knowledge, thoughts, or beliefs—say, the existence or location of subpoenaed materials, or ownership over a passcode-protected device—if the government can show with “reasonable particularity” that, at the time it sought to compel the act of production, it already knew of the materials, thereby making any testimonial aspect a “foregone conclusion.”20
There are two seminal Supreme Court cases that gave rise to, and solidified, the foregone conclusion doctrine: Fisher v. United States and United States v. Hubbell.21 Both of these cases are excellently summarized by the Honorable Gerald Bard Tjoflat, U.S. Circuit Judge for the 11th Circuit Court of Appeals, in In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 (In re Grand Jury Subpoena Duces Tecum herein).
In Fisher, the Court considered two Internal Revenue Service investigations, one in the 5th Circuit and one in the 3rd Circuit, where the IRS sought to obtain voluntarily prepared documents that certain taxpayers had given to their attorneys.22 In each investigation, the IRS issued a summons requiring the taxpayer's attorney to hand over the documents, “which included an accountant's work papers, copies of the taxpayer's returns, and copies of other reports and correspondence.”23 In response, attorneys refused to comply, invoking both the attorney-client privilege and their clients’ 5th Amendment privilege against self-incrimination. The IRS then brought an enforcement action in district court.
Turning to the question that matters for our purposes here, the Supreme Court treated the taxpayers as retaining possession of the documents.24 The Court held that the taxpayers' act of production could qualify as testimonial if conceding the existence, possession and control, and authenticity of the documents tended to incriminate them.25 However, in the cases before it, the Court concluded that the act of providing the subpoenaed documents would not involve testimonial self-incrimination because the IRS was in “no way relying on the truth telling of the taxpayer.”26 This reasoning took root as the foregone conclusions doctrine, which the Court went on to explain as follows:
It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment.... Surely the Government is in no way relying on the ‘truth telling’ of the taxpayer to prove the existence of or his access to the documents. The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers. Under these circumstances by enforcement of the summons ‘no constitutional rights are touched. The question is not of testimony but of surrender.’27
Twenty-four years after Fisher and seven years before the first iPhone, the Court decided Hubbell.28 In Hubbell, a grand jury investigating the activities of the Whitewater Development Corporation issued a subpoena duces tecum requiring Hubbell to provide certain documents. In response, Hubbell invoked his 5th Amendment privilege, so the government did him the kindness of obtaining a district court order granting him immunity.29 Hubbell then complied with the subpoena and turned over 13,120 pages of documents.30 Not long after that, Hubbell was indicted for several federal crimes.
Hubbell moved to dismiss the indictment, arguing that the government could not convict him without the documents that had been provided after the grant of immunity. The district court held a hearing, determined that the government could not show that it had knowledge of the contents of the documents from a source other than the documents themselves, and dismissed the indictment.31 On review, the Supreme Court concluded that Hubbell's act of production was sufficiently testimonial to trigger 5th Amendment protection because knowledge of the implicit testimonial facts associated with his act of production was not a foregone conclusion.32 In this way, the Court in Hubbell distinguished Fisher. As stated by the Court:
Whatever the scope of this ‘foregone conclusion’ rationale, the facts of this case plainly fall outside of it. While in Fisher the Government already knew that the documents were in the attorneys' possession and could independently confirm their existence and authenticity through the accountants who created them, here the Government has not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced by respondent. The Government cannot cure this deficiency through the overbroad argument that a businessman such as respondent will always possess general business and tax records that fall within the broad categories described in this subpoena.33
Beyond paper documents
So far, I have examined two act-of-production cases in which the government sought physical documentary records either in the possession of a person or thought to be in the possession of a person. In Fisher, the documents were known to exist, and the taxpayer’s testimonial act of providing the documents added nothing to the government’s case. In Hubbell, conversely, the existence of the documents was not a foregone conclusion, and the defendant was able to stand on his 5th Amendment right to not incriminate himself through the testimonial act of producing documents the government was not privy to.
Judge Tjoflat discussed both of these decisions in In re Grand Jury Subpoena Duces Tecum. There, as revealed in part by its name, a grand jury investigating child pornography issued a subpoena duces tecum to an individual (the target of the investigation, referred to as “John Doe”) requiring him to produce the decrypted contents of his laptop computers and external hard drives.34 After Doe asserted his 5th Amendment privilege, the government sought, and the district court granted, Doe “act-of-production immunity.”35 This immunity was said to “convey immunity for the act of production of the unencrypted drives, but [did] not convey immunity regarding the United States’ [derivative] use” of the decrypted contents of the drives.36 Doe was later incarcerated for contempt when he appeared before the grand jury and refused to decrypt the drives.
In In re Grand Jury Subpoena Duces Tecum, Doe was tracked by police to a hotel room in California as part of a child pornography investigation. A search warrant issued allowing law enforcement to seize all digital media, as well as any encryption devices or codes necessary to access such media. Officers seized two laptops and five external hard drives. The FBI analyzed the digital media, but was unable to access portions of the hard drives. Later, a grand jury issued a subpoena duces tecum requiring Doe to produce the “unencrypted contents” of the digital media, and “any and all containers or folders thereon.”37 Interestingly, and of importance, the fact that the hard drives belonged to Doe was not in dispute.38 Instead of arguing that his act of production would establish ownership, Doe argued that by decrypting the hard drives, he would be testifying that he, as opposed to someone else, placed the contents onto the hard drives, encrypted the contents, and could retrieve them. Thus, the question before the court was “whether Doe’s act of decryption and production would have been testimonial.”39
In answering this question, the court looked to both Fisher and Hubbell, and ultimately concluded that “(1) Doe’s decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.”40 The first conclusion is of little debate, as everyone can agree that the physical act of producing a passcode is a testimonial act of production. What matters for the nonce is the court’s second conclusion—that the government fell short in its knowledge base, thereby placing In re Grand Jury Subpoena Duces Tecum outside the “foregone conclusion” class of cases.
Persuasive to the court was the fact that the government could not articulate, at least to the court’s satisfaction, that it knew whether any files were located on the hard drives, and what’s more, whether Doe was capable of accessing the encrypted portions of the drives (a curious finding, as it was undisputed that the hard drives belonged to Doe).41 The problem for the court, therefore, was principally that the government did not know what, if anything, was held on the encrypted drives. This hang-up by the court was likely a result of reading too much into certain language from Hubbell, where the government was asking a person to retrieve and produce to the government documents the government was unaware of entirely.
But the provision of a passcode and the physical retrieval of documents are two very different things. In Professor Orin Kerr’s estimation, the 11th Circuit’s error was in “applying language from cases compelling disclosure of broad classes of documents to the very different case of an order to enter a password to unlock a computer.”42 Professor Kerr went on to state that the error is subtle, but critical, writing, “[i]t’s subtle because both cases involve steps that lead to the government accessing a lot of documents. If you look at the cases from 30,000 feet, they look kind of similar. But the error is critical because the testimonial aspects of production in the two cases are vastly different.”43 Professor Kerr goes on to illustrate this distinction in the foregone conclusion cases as follows:
In particular, the idea that the government must have some idea about what files exist and where they are located makes sense when the government has an order requiring the suspect to hand over a described set of files—but it makes no sense when the government is requiring the suspect to enter a password to access those files itself. When the government is relying on the target to go through his stuff and say which files are responsive to a request, the government is obtaining the suspect’s testimony about what files exist and which files are responsive. The suspect has a Fifth Amendment privilege unless that testimony about existence and location of the sought-after files is a foregone conclusion.
When the court order only compels the suspect to enter a password, on the other hand, the government is not obtaining the suspect’s testimony about what documents exist, where they are, and whether they comply with the court order. The only implicit testimony is, “I know the password.” What files exist, where, and what they say is distinct from that. The government has to find that out on its own. The government has to search the computer and look for the records described in the warrant. It isn’t relying on the defendant’s testimony about what is on the computer because entering in the password does not imply any testimony about that.
In his 2016 article, from which I have quoted above, Professor Kerr voiced his hope that “courts faced with this issue don’t just assume that the 11th Circuit’s analysis was correct.” At the time, there was a case with a similar question pending in the 3rd Circuit. In that case, U.S. v. Apple MacPro Computer, the 3rd Circuit affirmed the district court’s order compelling decryption—a disparate result from the 11th Circuit.44 And yet, Apple MacPro Computer was not a retrenchment from the 11th Circuit’s framework. Instead, the 3rd Circuit simply found that the government provided “evidence to show both that files exist on the encrypted portions of the devices and that Doe [could] access them.”45 Thus, while the 3rd Circuit did in fact look to the testimonial act of production inherent in the decryption itself, the court was persuaded by the fact that the government had a significant knowledge base of what was contained on the hard drives in question. This fact drove the outcome.
The present state of things
The analysis from the 11th and 3rd Circuits was not followed earlier this year, when the Supreme Judicial Court of Massachusetts decided Commonwealth v. Jones, in line with the analysis advocated for in Professor Kerr’s article.46 In Jones, the government was interested in viewing Jones’s lawfully seized cellphone for evidence in his prosecution for human trafficking and prostitution-related offenses. In resolving the 5th Amendment question, the Supreme Judicial Court of Massachusetts held that “[i]n the context of compelled decryption, the only fact conveyed by compelling a defendant to enter the password to an encrypted electronic device is that the defendant knows the password, and can therefore access the device.”47 The court in Jones, consistent with Professor Kerr’s analysis, deemed irrelevant whether the government knew what the contents of the phone were because the only testimonial act was whether the defendant knew the passcode. Thus, under Jones, the government in Massachusetts needs only to establish “that a defendant knows the password to decrypt an electronic device before his or her knowledge of the password can be deemed a foregone conclusion under the Fifth Amendment….”48 Under Massachusetts law, to succeed in compelling a defendant to decrypt a device, the government must show that the defendant knows the password beyond a reasonable doubt. In deciding on this evidentiary standard, the court in Jones concluded that using any lower standard of proof would create a “greater risk of incorrectly imputing knowledge to those defendants who truly do not know the password.”
A survey of courts reveals a divide on whether, and to what extent, the 5th Amendment is implicated in an assortment of situations involving the compelled production of passcodes and biometric unlocking features for the purpose of decryption. For example, a federal district court in Illinois ruled that the 5th Amendment bars the compelled production of an individual’s fingerprint for the purpose of unlocking a device (this was the opposite of the conclusion reached by our own state Supreme Court in Diamond).49 In the Illinois case, the court stated that it did “not believe that a simple analogy that equates the limited protection afforded a fingerprint used for identification purposes to forced fingerprinting to unlock an Apple electronic device that potentially contains some of the most intimate details of an individual's life (and potentially provides direct access to contraband) is supported by Fifth Amendment jurisprudence.”50 In another case, a federal district court in the District of Columbia ruled that the 5th Amendment is no bar to the government securing a warrant to search and seize devices in a home and at the same time compelling a specific person therein to supply their fingerprints, face, and irises to unlock devices seized.51
This article has focused primarily on the dual testimonial act/foregone conclusion framework because it appears to be best suited for application across the various means of decryption. Additionally, this framework has proven both its wisdom and its functionality over time, as technology evolves. This framework imposes a two-part test of asking (1) whether the given act is testimonial or non-testimonial; and (2) if the act is testimonial, whether the testimony inherent in the act is a foregone conclusion.
Our own state Supreme Court did follow this framework in the Diamond case, but concluded that the provision of a fingerprint is a non-testimonial, physical act per se. It may well have been that, had our Court concluded that the production of Diamond’s fingerprint constituted a testimonial act, the same result would have been reached. After all, the fact that Diamond’s smartphone belonged to him may have been a foregone conclusion, thus voiding any claim that Diamond’s 5th Amendment right was violated.
Diamond was incorrectly decided, in my estimation, because the Court failed to appreciate the testimonial qualities inherent in the act of production, namely, the production of one’s fingerprint. The testimony in the act is, “my fingerprint decrypts or ‘unlocks’ this device,” and “I previously set up this encryption.” Again, this testimony may have been a foregone conclusion in Diamond, but the Court should have recognized the inherent testimonial qualities associated with the act of production. Looking ahead, under Diamond, the 5th Amendment is no bar to the police entering a home with a search warrant to seize all devices, and then requiring all occupants, whether two or 20 in number, to place their thumbs and fingers on the devices seized to establish ownership (earlier this year, a federal district court in California held that the 5th Amendment bars this precise activity by police).52 At the time Diamond was decided, the Minnesota Supreme Court observed that neither the Supreme Court of the United States nor any state Supreme Court had addressed the issue presented.53 In the one year and some months since Diamond, several courts have cast doubt on Minnesota’s rule, including the Supreme Judicial Court of Massachusetts, the Indiana Court of Appeals, and the federal district courts mentioned above.54 The United States Supreme Court has yet to resolve the debate.
The decision in Jones imposes the dual testimonial act/foregone conclusion framework, and supplies a high evidentiary standard of proof before the government may compel some form of decryption process. But the problem with Jones is that it involved compelled decryption by requiring the defendant to actually enter his passcode, rather than supply his finger or thumbprint. The former seems to require a person to disclose the contents of their mind, whereas the latter does not. This is not an insignificant distinction. In Hubbell, the Supreme Court analogized the assembly of subpoenaed documents to “telling an inquisitor the combination to a wall safe,” rather than “being forced to surrender the key to a strongbox.”55 In conveying the combination to a wall safe, rather than surrendering a key to a strongbox, a person must use the “contents of [their] own mind.”56 Once the contents of a person’s mind are involved, it should be axiomatic that the 5th Amendment prevents those processes, in the absence of immunity, from being compelled into oral or typewritten existence.57 Even if ownership of the device is a foregone conclusion, compelling a person to reveal the contents of their mind and supply their passcode from the mind’s inner sanctum runs afoul of the Supreme Court’s pronouncement in Estelle v. Smith—that the state cannot resort to the expedient of forcing evidence from a person’s lips.
In the end, I conclude that the 5th Amendment should provide an unqualified bar, in the absence of a grant of immunity, to the government compelling a person to provide a decryption password or passcode, irrespective of whether the testimonial act of production is a foregone conclusion. If one is protected from telling an inquisitor the combination to a wall safe, one should also be protected from telling an inquisitor the combination to a smartphone. In both instances, the contents of the person’s mind are revealed, and that should be the end of the debate.
In other cases—those involving biometric features like fingerprints, thumbprints, iris scanning, and facial recognition—the dual testimonial act/foregone conclusion framework, coupled with the evidentiary standard from the Jones case, strikes the right balance. To begin, it creates a straightforward 5th Amendment rule. Additionally, it tends in the direction of requiring the government to “shoulder the entire load” in building and bringing a criminal case. It also avoids the tendency, witnessed in some judicial decisions of late, to bend the 5th Amendment ever closer to the 4th, with arguments grounded in well-meaning, but in the end constitutionally elusive, privacy concerns. The 5th Amendment either fits, or it does not fit. And while it should be flexible in order to meet the exigencies of technological development, it should not be bent and forged anew. It remains to be seen what the Minnesota Supreme Court will do—assuming the question is not first answered by the United States Supreme Court—when presented with the same facts as Diamond but where the government seeks a passcode rather than a fingerprint.
ADAM T. JOHNSON is an attorney at Lundgren & Johnson in Minneapolis.
Notes
1 Mobile Fact Sheet, Pew Research Ctr.: Internet & Tech. (2/5/2018).
2 Orin Kerr & Bruce Schneier, Encryption Workarounds, 106 Georgetown Law Journal 989 (2018).
3 State v. Diamond, 905 N.W.2d 870
(Minn. 2018).
4 Minn. R. Crim. P. 9.03, subd. 2(1).
5 U.S. Const. amend. V.
6 Minn. Const. art. I, §7.
7 Fisher v. United States, 425 U.S. 391, 408 (1976).
8 Schmerber v. California, 384 U.S. 757, 762 (1966).
9 Miranda v. Arizona, 384 U.S. 436, 460 (1966).
10 Estelle v. Smith, 451 U.S. 454, 462 (1981).
11 See e.g. State v. Borg, 806 N.W.2d 535 (Minn.2011) (holding, as a matter of first impression, that the 5th Amendment privilege against compelled self-incrimination did not prevent the state from presenting evidence during its case in chief of a defendant's failure to respond to a letter sent by a police sergeant).
12 Doe v. United States, 487 U.S. 201, 209-10 (1988) (Doe II).
13 United States v. Dionisio, 410 U.S. 1, 7 (1973); United States v. Wade, 388 U.S. 218, 222 (1967).
14 Diamond, 905 N.W.2d at 875-76.
15 In the Matter of the Search of a Residence in Oakland, California, 354 F.Supp.3d 1010 (N.D. Cal. 1/10/2019).
16 In re Application for a Search Warrant, 236 F.Supp.3d 1066, 1073 (N.D. Ill. 2/16/2017).
17 Diamond, 905 N.W.2d at 871.
18 State v. Diamond, 890 N.W.2d 143, 145-46 (Minn.App.2017).
19 In a footnote, the court in Diamond cited to a foregone conclusion case, but did so parenthetically and without application to the case before it. Diamond, 905 N.W.2d at 878, n. 1.
20 In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012).
21 Fisher, supra; United States v. Hubbell, 530 U.S. 27 (2000).
22 Fisher, 425 U.S. at 393–94
23 In re Grand Jury Subpoena Duces Tecum, 670 F.3d at 1342 (citing Fisher, 425 U.S. at 394).
24 Fisher, 425 U.S. at 405.
25 Id. at 410.
26 Id. at 411.
27 Id. (quoting In re Harris, 221 U.S. 274, 279 (1911)).
28 United States v. Hubbell, 530 U.S. 27 (2000).
29 United States v. Hubbell, 530 U.S. at 31.
30 Id.
31 Id. at 31-32.
32 Id. at 44-45.
33 Id.
34 In re Grand Jury Subpoena Duces Tecum, 670 F.3d at 1337.
35 Id. at 1338.
36 Id.
37 Id. at 1339.
38 Id.
39 Id. at 1342.
40 Id. at 1346.
41 Id.
42 Orin Kerr, “The Fifth Amendment Limits on Forced Decryption and Applying the ‘Foregone Conclusion’ Doctrine,” Wash. Post, 6/7/2016 (https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/07/the-fifth-amendment-limits-on-forced-decryption-and-applying-the-foregone-conclusion-doctrine/) (last visited 4/8/2019).
43 Id.
44 U.S. v. Apple MacPro Computer, 851 F.3d 238 (3rd Cir. 2017).
45 Id. at 248.
46 Commonwealth v. Jones, 117 N.E.3d 702 (Mass.2019).
47 Jones, 117 N.E.3d at 705.
48 Id.
49 In re Application for a Search Warrant, 236 F.Supp.3d 1066 (D. N.D. Ill.) (2/16/2017).
50 Id. at 1073-1074.
51 Matter of Search of [Redacted] Washington, District of Columbia, 317 F.Supp.3d 523 (D. D.C. 6/26/2018).
52 In the Matter of the Search of a Residence in Oakland, California, 354 F.Supp.3d 1010 (N.D. Cal. 1/10/2019).
53 Diamond, 905 N.W.2d at 871.
54 Seo v. State, 109 N.E.3d 418 (Ind. Ct. App. 2019).
55 Hubbell, 530 U.S. at 43.
56 Id.
57 Schmerber v. California, 384 U.S. 757 (1966).