The Supreme Court held in 1966 that the taking of your blood wasn’t a violation of the Fifth Amendment right against self-incrimination in Schmerber v. California. So what’s a fingerprint between friends?

FORBES found a court filing, dated May 9 2016, in which the Department of Justice sought to search a Lancaster, California, property. But there was a more remarkable aspect of the search, as pointed out in the memorandum: “authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant.”

Well, there is a “reasonably” thrown in, so what’s the problem? That mere presence in what the warrant delightfully calls the “SUBJECT PREMISES” means they get to pinch your print, because…reasons. The government notes that it must reasonably believe the person to “be the user of a fingerprint sensor-enabled device,” which means only that the finger that goes with the phone gets nabbed. What it does not explain is why they should get to go into the phone in the first place.

Is there evidence hidden in a phone? Fair enough, but you have to provide probable cause to believe that in the warrant. It must state with particularity what phone they want to seize and what justification there is to seize and search it.  And no, it’s not close enough that the phone is within the “SUBJECT PREMISES” at the moment they show up with the SWAT team.

But then, what is this supposed to mean?

Legal experts were shocked at the government’s request. “They want the ability to get a warrant on the assumption that they will learn more after they have a warrant,” said Marina Medvin of Medvin Law. “Essentially, they are seeking to have the ability to convince people to comply by providing their fingerprints to law enforcement under the color of law – because of the fact that they already have a warrant. They want to leverage this warrant to induce compliance by people they decide are suspects later on. This would be an unbelievably audacious abuse of power if it were permitted.”

It’s impossible to say with certainty whether that reflects “legal expert” Medvin’s thoughts or what little the writer understood of them, but it imparts absolutely nothing remotely comprehensible. Fortunately, another “legal expert” is quoted as well:

Jennifer Lynch, senior staff attorney at the Electronic Frontier Foundation (EFF), added: “It’s not enough for a government to just say we have a warrant to search this house and therefore this person should unlock their phone. The government needs to say specifically what information they expect to find on the phone, how that relates to criminal activity and I would argue they need to set up a way to access only the information that is relevant to the investigation.

“The warrant has to be particular in how it describes the place to be searched and the thing to be seized and limited in scope. That’s why if a government suspects criminal activity to be happening on a property and there are 50 apartments in that property they have to specify which apartment and why and what they expect to find there.”

Damn straight. The problem isn’t whether the government can force a person to give up their fingerprint. It can. But this was tantamount to a general warrant, lacking any of the requirements of the Fourth Amendment for the second-tier seizure of fingerprints based on nothing more than the misfortune of being at a place at the wrong time and having a cellphone.

But there’s another issue here, and that’s raised by the fact of the government’s effort to accomplish this mass seizure of unrelated prints, phones and the contents of the phones by sneaking it into a search warrant.  There may well be probable cause to search the “SUBJECT PREMISES,”* but that doesn’t mindlessly extend to everything and everyone within the joint.

You see, if the government has probable cause to believe that there is evidence of a crime within the place, such as an AK-47, that doesn’t mean they get to search inside the frozen meatloaf. That’s because you can’t fit an AK-47 inside a package of frozen meatloaf, so by definition, the thing you’re authorized to search for can’t be there. The warrant isn’t meant to be carte blanche to search, but a limitation. I know, but that’s the idea. Keep your mitts off the meatloaf.

While there is ancillary authority to detain anyone found within a SUBJECT PREMISES (see?) during the search, because there is nothing more important than protecting those SWAT team guys from the potential of harm, that doesn’t mean they get to search the people for whatever the hell they want. They can check for weapons, but not for evidence. Of course, cellphones could be guns, or could be thrown at the cops and, if done at precisely the right angle, pierce their body armor and nick their aorta…oh wait, no. That can’t happen. But they could say it could, and be afraid it could, and shoot just in case. But I digress.

There could well be an application for a warrant that could justify the seizure of cellphones of occupants of the SUBJECT PREMISES (I can’t get enough of this), but it has to be there, in the warrant application, providing probable cause to believe that evidence will be found on those cellphones, with particularity.

So what was the government thinking? That they could slip this through, get a busy or amiable Mag to sign off on it, seize whatever they pleased and then enjoy the benefit of Leon’s “good faith” exception. After all, they got a warrant. What more do you want from them?

Therein lies the trick, throw in the kitchen sink, wild as it may be, and see what you can get away with. After the search and seizure, when they have the nasty goods on the cellphone user, see if the judge lets the criminal go free because the constable leveraged the warrant.

*Sorry, but I adore how the government always capitalizes SUBJECT PREMISES.