A Virginia Circuit Court judge has ruled that a criminal defendant can be compelled to give up his fingerprint, but not his pass code, to allow police to open and search his cellphone, reported the Virginian-Pilot.
The question of whether a phone's pass code is constitutionally protected surfaced in the case of David Baust, an Emergency Medical Services captain charged in February with trying to strangle his girlfriend.
Prosecutors had said video equipment in Baust's bedroom may have recorded the couple's fight and, if so, the video could be on his cellphone. They wanted a judge to force Baust to unlock his phone, but Baust's attorney, James Broccoletti, argued pass codes are protected by the Fifth Amendment, which prohibits forced self-incrimination.
Judge Steven C. Frucci ruled this week that giving police a fingerprint is akin to providing a DNA or handwriting sample or an actual key, which the law permits. A pass code, though, requires the defendant to divulge knowledge, which the law protects against, according to Frucci's written opinion.
Earlier this year, the U.S. Supreme Court ruled that the police need to obtain a search warrant to search a cellphone.
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Michael Thomas Gargiulo, Pretrial Hearing 43
3 days ago