A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

October 30, 2014

VIRGINIA BEACH

A 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.

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.

Broccoletti called Frucci’s ruling on target. The law is clear about fingerprints, he said, and the judge saw his point about pass codes.

Macie Pridgen, a spokeswoman for the Commonwealth’s Attorney’s Office, said prosecutors still are considering whether to appeal.

Neither said they knew whether Baust’s phone can be opened with just a fingerprint. Pridgen said prosecutors are having a detective look into it, and Broccoletti said Baust’s phone could be encrypted twice – with both a fingerprint and a pass code. If so, it would remain locked under Frucci’s ruling

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