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Virginia judge rules police can require suspect to unlock cell phone with fingerprint

[JURIST] A judge for the 2nd Judicial District of Virginia [official website] on Thursday ruled that police can force criminal suspects to unlock their cell phones with a fingerprint scanner to allow officers to open and search them. Officers may not, however, compel suspects to give up their phone pass codes. Judge Steven Frucci ruled[Virginian-Pilot report] that revealing a pass code requires a suspect to disclose knowledge, which the law prohibits. Having a fingerprint taken to unlock the phone, he said, is comparable to providing a key or a DNA sample, which is permitted by law. The protection status of phone pass codes was called into question in the case of David Baust, who was charged [WAVY report] with the attempted strangulation of his girlfriend. The prosecutor in his case argued [The Hill report] that Baust's phone could contain a video of the attack. The judge's ruling prohibits the compelled disclosure of Baust's pass code in the interest of protecting his Fifth Amendment rights.

There has been much in the news on cell phone searches in recent months. This decision comes after a June ruling [opinion, PDF] by the Supreme Court that police officers must obtain a warrant [JURIST report] before searching a person's cell phone data, even at the time of arrest. In Riley v. California and United States v. Wurie [SCOTUSblog backgrounders], the court considered the question of whether a search of cell phone data without a warrant violates a person's Fourth Amendment [text] rights. The court also held that while the police may not search the cell phone data, they may search the cell phone itself to make sure it cannot be used as a weapon. Justice Samuel Alito filed a concurring opinion, noting that he was not convinced that the rule on searches incident to arrest is based on the need to protect the safety of the arresting officers and the need to prevent the destruction of evidence. The court heard arguments in April after it granted certiorari [JURIST reports] in January.

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