It isn’t completely a question of
the legality it is a question of the integrity of the Fairfax County Police who
record is appalling. In the past decade, the department has murdered unarmed
citizens and lied about and ruined the lives of several innocent people they
have investigated.
Bear in mind, a magistrate is not
necessarily an attorney at law and the cop knew that when she asked permission
to break into the man’s phone.
Think she did the right thing?
Well then, how about if I SUSPECT you of a crime and break into your locked
home to prove it?
A magistrate said police could
force a man to unlock his phone. Is that legal?
By Justin Jouvenal
When Fairfax County police
arrested a man last month in connection with the brutal sexual assault in May
of a 15-year-old with developmental delays, they seized a piece of evidence
that might hold crucial evidence of the crime: his iPhone.
The phone’s GPS might have placed
Kevin Caldwell at the scene, contained texts between him and his alleged
accomplice or even video of an incident, but authorities quickly realized they
could not access any of it.
The phone required Caldwell’s
fingerprint to unlock it.
A detective resorted to a novel
and controversial approach: She went to a magistrate and got an order to have
Caldwell provide his fingerprints to gain access, but police said they
ultimately decided not to follow through with the thumbprint.
In an age of increasing
encryption, law enforcement officials say compelling a person to cooperate is
sometimes the only way to retrieve make-or-break evidence. They have asked
magistrates and judges to order suspects to give up their fingerprints to
unlock phones, as well as face scans and passwords.
The trend has touched off heated
legal battles in some state and federal courts over the constitutionality of
such searches, resulting in a welter of legal opinions. Defendants often argue
that such searches violate their Fifth Amendment rights against
self-incrimination.
“These are newer technologies for
securing devices, but they’ve been around for several years now,” said Andrew
Crocker, a senior staff attorney for the Electronic Frontier Foundation.
“You’ve started to see police trying to force people to unlock their phones
with their fingerprints or faces and courts having to deal with that.”
Fairfax police said the incident
involving the teenage girl occurred May 16. The girl told detectives that she
went to a family event at the Mount Vernon Country Club, where she got into a
disagreement with her brother, according to a search warrant filed in Fairfax
County.
The teen went out to get some air
and ended up walking into the Wingstop restaurant on Cooper Road, according to
the search warrant, where she asked Caldwell for a ride, saying she was lost.
He declined, the search warrant states.
Caldwell and a second man, Andrew
Collins, who was an employee at the restaurant, followed the teen into the
bathroom and blocked the door, she told detectives, according to allegations in
the warrant. The girl was taken to another location she described as “sticky,”
where both men allegedly assaulted her, according to the search warrant.
After an investigation, Caldwell,
21, and Collins, 22, were arrested in July. Caldwell was charged with forcible
sodomy, and Collins was charged with animate object penetration. Neither has a
fixed address, and they have yet to enter pleas. Caldwell’s attorney declined
to comment, and it could not be determined whether Collins had an attorney.
Fairfax police Detective Alyson
Russo applied for a search warrant for Caldwell’s fingerprints to unlock the
phone in late July, citing a 2014 Virginia Beach Circuit Court ruling that
touches on many of the crucial legal arguments surrounding such searches.
In that case, police wanted the
state to force a man charged with assault to give up his passcode or a
fingerprint to unlock a phone they suspected contained video evidence of the
assault. The defendant objected, saying it would violate his Fifth Amendment
protections against providing incriminating testimony against himself.
Crocker said the courts generally
have held that the Fifth Amendment bars law enforcement from forcing people to
provide testimony that would reveal the contents of their minds.
The judge ruled that the state
could compel the man to produce a fingerprint but not a passcode.
“The fingerprint, like a key . . . does
not require the witness to divulge anything through his mental processes,” the judge wrote in his opinion. “Unlike the production of physical
characteristic evidence, such as a fingerprint, the production of a password
forces a ‘defendant’ to disclose the ‘contents of his own mind.’ ”
Other courts have decided
differently. Some have compelled defendants to reveal passcodes, even jailing
people who have refused. Courts in California, Illinois and Idaho have found
that compelling the production of fingerprints is unconstitutional under the
Fifth Amendment, although most of those decisions have been reversed.
The Fairfax public defender’s
office, which is representing Caldwell, objected to the police’s quest for his
fingerprints. “It is a violation of the 5th Amendment to compel someone’s
fingerprint,” Dawn Butorac, a public defender, said in an email.
But Fairfax police Capt. Eli Cory
said the searches were lawful. He said that such searches are rare and that the
department did not maintain statistics on how often they happen. Because the
case is pending, he declined to say whether police ever gained access to
Caldwell’s phone through means other than the fingerprint.
“We face encryption all the time
in some shape or form,” Cory said. “It’s something we have to overcome in the
context of law.”
In major rulings in recent years,
the U.S. Supreme Court has strengthened privacy protections around police
searches of cellphones, citing the wealth of information they contain. Last
year, the high court ruled that police generally need to obtain a warrant to
get cellphone location data; and in 2014, the Supreme Court ruled that
authorities must obtain a search warrant to look through the contents of a
cellphone.
Riana Pfefferkorn, associate
director of surveillance and cybersecurity at the Stanford Center for Internet
and Society, said the issue of compelling defendants to give up access to their
phones may be an issue the Supreme Court ultimately takes up, too.
“The constitutional
questions are still developing,” Pfeffer
