A Search of a Residence in Oakland, California

A Search of a Residence in Oakland, California

I have previously blogged about the use of passwords on cell phones and how there was an issue with using finger prints of biometrics as your password (as opposed to an actual password).

Now, consider In the Matter of the Search of a Residence in Oakland, California, Case No. 4:19-mj-70053-KAW, in the United States District Court for Northern District of California. A federal magistrate judge, Judge Kandis Westmore, has ruled that law enforcement cannot force a person to unlock a mobile phone with their face or finger. Other courts have previously held that law enforcement could force a person unlock a mobile device with biometrics (fingerprints, facial recognition or irises) as biometric features, unlike passcodes, were not “testimonial.” Judge Westmore found that the government did not have the right, even with a warrant, to force suspects to incriminate themselves by unlocking a device with biometrics. The rationale seems that since a suspect would have to willingly and verbally give up a passcode, the suspect should also have to be willing to give the biometrics. A “password” has been deemed “testimony.” Body parts have not been previously deemed “testimony.”

I am sure the order will probably be appealed . . ..

More later.

As always, feel free to contact me at walter.james@jamespllc.com

WDJiii

 

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