In the last California Legal Update (Vol. 24, #2, Jan. 23, 2019), I briefed the federal district court opinion of In re Search of a Residence in Oakland (N.D. Cal. Jan. 10, 2019) __ F.Supp.3rd __ [2019 U.S. Dist. LEXIS 5055], emphasizing a magistrate judge’s conclusion that forcing a suspect to provide passwords and/or to use his or her biometric features (e.g., finger or thumbprint, facial feature recognition, etc.) to unlock cellphones and other digital or electronic devices violates the subject’s Fifth Amendment selfincrimination rights. The stated reason for this rule is that both passwords and biometric features are considered to be “testimonial communications.” Well, I’m told now that this is not necessarily correct, at least as to biometric features. While the magistrate judge was correct when she applied this rule to passwords (at least according to prior case law), there’s a serious difference of opinion as to whether it also applies to biometric features. The magistrate judge cited only one prior case talking about biometric features being testimonial communications which itself came from another federal district court (i.e., trial court), located in Illinois. (In re Application for a Search Warrant (N.D. Ill. 2017) 236 F. Supp. 3rd 1066.) But not cited by the magistrate judge was a case from the Minnesota Supreme Court (Minnesota v. Diamond (Jan 17, 2018) 905 N.W.2nd 870.), where the issue was discussed in excruciating detail. The Minnesota Court specifically concluded that biometric features are not testimonial communications. Also (cited by the magistrate judge but ignoring its discussion of the issue) is a case from a circuit court in the state of Virginia (Commonwealth v. Baust (Va. Cir. Ct. 2014) 89 Va. Cir. 267.), where it was similarly held that biometric features are not testimonial communications, and thus not protected by the Fifth Amendment. The bottom line is that we have a split of opinion on this issue; two federal trial level courts holding that a criminal suspect cannot be forced to use his or her biometric features to open cellphones or other digital or electronic devices without violating the Fifth Amendment, and a state supreme court (Minnesota) and a state circuit court (Virginia) ruling to the contrary. Such decisions, both from the federal courts and other states, are considered to be “persuasive” only, and not controlling in California. But there are neither any California cases nor cases from the U.S. Supreme Court telling us what the rule should be. So what do we do? In considering the appellate level of the four courts that have discussed the issue, I’d have to say that the magistrate judge’s opinion in In re Search of a Residence in Oakland is a minority opinion, and one that you can safely ignore should you be confronted with the problem. But my opinion, and a dime, won’t even get you a cup of coffee anymore. So we’re going to have to wait until we get some California or U.S. Supreme Court (or even Ninth Circuit) case law on this issue, meaning we need at least one of you to press the envelope a bit and give us that case law. My sincere thanks to Detective James Williams of the Sacramento Sheriff Department’s Internet Crimes Against Children Task Force (who apparently is already pressing the envelope) for not only turning me on to the conflict in the law on this issue, but for doing the bulk of the legal research for me.