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Police can require cellphone fingerprint, not pass code

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.

Elisabeth Hulette, 757-222-5097, elisabeth.hulette@pilotonline.com

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Posted to: Crime News Virginia Beach

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pilot bait and switch

The lead photo on the home page shows an iphone 5, which can be unlocked with a print. The device in question? We still don't know.

Just ruling

The EMS Captain has a clear Constitutional Protection on this matter. As people have the same right during a DUI stop. You do not give up any of your Constitutional Rights because you drive a vehicle on State Roads just as you do not have to give up your rights on your phone . Know your rights !

...

Are we talking about before or after a search warrant is granted?

Police should still have to get a warrant to search. Once a warrant is issued, similarly to search of a home where keys and doors are either opened by the occupant or they can be held with obstruction.

So are we only talking about after a warrant has been obtained?

Terry

To me it looks like the hearing to get the warrant.

So refusing to give the

So refusing to give the police your password is obstruction of justice? I'd like to see that play out in court.

The fifth amendment doesn't get dropped

The fifth amendment insures that you do not have to incriminate yourself. The fifth amendment doesn't get dropped because a police officer asks. It doesn't get dropped with a warrant. It doesn't get dropped in court. It shouldn't get dropped even in the super secret federal court!

Question?

A fingerprint is used for personal identification, not access. Using it as an access identifier such as is a password are two totally separate uses. I would think this would fall under the same rule as a password. Is there precedence to compel the use in a manner of personal information access?

Guilty or not guilty

If a supposed crime has been committed, then I believe that with a warrant, the suspect should be forced to open his phone, computer or any other electronic device. Only the guilty have things to hide. The same goes for automobile accidents, instances of child porn, etc. Look at the devices to see what was going on, especially texting, etc while driving.

Same Topic

Never give anything away with out talking to a lawyer. Police will ask for everything. NEVER NEVER give anything away. You have rights and just because "they" asked nice....the answer is NO!

Same topic

Always be polite

low level judge

The act of complying with a judges order certainly is the same as providing a password or divulging information which he stored in his phone, which is an extension of himself.

http://www.obamasweapon.com/

What's the difference from information stored on a mans finger or in the atoms of his brain or in the energy states of his electronics/memory?

Riley v. California

If the article is accurate, this ruling is plainly in contradiction with Riley v California.

This ruling should be appealed.

Fricosu Keys

We need Fricosu keys. What are Fricosu keys, gentle reader? These are separate keys created when the encrypted volume is established. When a Fricosu key is entered under duress in Colorado, it will cause the real decryption key to be silently and permanently forgotten. Of course, this won't help if the drive has already been imaged....D*mn.

Also, if you are crossing the border and the CBP wants to see your laptop, enter your Fricosu key, say "Hmm, that's strange, I can't seem to unlock my laptop. Here, you keep it."

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