COMMONWEALTH OF VIRGINUX EDWARD W. A. BONWILL SHOCKLEY CIRCUIT COURT JUDGES OFFICE H. THOMAS PADRICK, JR. CITY OF VIRGINIA BEACH STEPHEN C. MAHAN JUDICIAL CENTER, BLDG. 10 WILLIAM R. 2425 NIMMO PARKWAY LESLIE L. LILLEY VIRGINIA. BEACH, VA 23456-9017 GLENN R. CROSHAW (757) 385?4501 STEVEN C. FRUCCI Direct Dial 385-8680 SECOND JUDICIAL CIRCUIT October 28, 2014 Eleanor Gaines, Esquire Of?ce of the Commonwealth?s Attorney 2425 Nimmo Parkway Building 103, Second Floor Virginia Beach, VA 23456 James O. Broccoletti, Esquire Zoby, Broccoletti Normile, C. 6633 Stoney Point South Norfolk, VA 23502 Re: Commonwealth of Virginia v. David Charles Baust Docket No.: CR14-1439 Dear Counsel: This matter is before the court on the Commonwealth?s Motion to Compel the Production of the Passcode or Fingerprint to Smartphone. The hearing took place Tuesday, October 28, 2014, at which the Defendant, the Commonwealth, and the witness for the Commonwealth were present. For the reasons set forth below, the Motion is denied in part and granted in part. . David Charles Baust, Defendant, is charged by indictment with violating Code of Virginia 18.2-51.6, Strangling Another Causing Wounding or Injury. On February 19,? 2014, Defendant allegedly assaulted the victim in his bedroom at his house. The victim stated that Defendant maintained a recording device that continuously recorded in the room where the assault purportedly took place. On the morning of February 19. 2014, after being assaulted the victim states she went to grab the video equipment from its usual place and Defendant assaulted her again to prevent her from taking the equipment. The victim stated that Defendant had previously transmitted video footage to her through text messaging of the victim and himself engaging in sexual intercourse in his room. The victim additionally admitted that the video recorder transmits to Defendant?s smart phone. Pursuant to a search warrant executed several days later, the police were able to recover the phone, several recording devices, assorted discs, Re: Commonwealth ofVirginia v. David Charles Baust Docket No; CR14-1439 October 28; 2014 Page 2 of 5 ?ash drives, and computer equipment belonging to Defendant. The victim and Defendant both af?rmed to the of?cers at the scene that the recording device, connected to Defendant?s cell phone ?could have possibly? recorded the assault and the recording ?may exist? on the phone. Additionally, the testimony before the court from the victim was that the device ?could have recorded? the assault and therefore there ?may be a recording.? Entry to the phone has been prevented by either by passcode or ?ngerprint. The question before the court is whether the production of one?s passcode or ?ngerprint is testimonial communication and therefore subject to the defendant's Fifth Amendment privilege against self-incrimination. The Commonwealth argues that the i - passcode and the fingerprint arenotitestirnoniai because the existence ofthe recording is a ?foregone conclusion.? Defense Counsel argues that both are testimonial in that either would provide access to all recordings or items on Defendant?s phone. Analysis The Fifth Amendment to the Constitution of the United States provides that no person ?shall be compelled in any criminal case to be a witness against himself.? US. Const. amend V. ?Tthe Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement - the right of a person to remain silent unle?Ss he chooses to speak in the unfettered eXercise ofhis own will.? Schmerber v. Cat, 384 US. 757, 760 (1966) (citation omitted). ?[T]he privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.? U.S. v. Wade, 388 US. 218, 221 (1967) (citation omitted). Thus the proper inquiry requires the court to resolve whether granting the motion to compel ?would require (1) compulsion of a (2) testimonial communication that is (3) incriminating." U. S. v. A-uthement, 607 F.2d 1129, 1131' n. 1 (5th Cir. 1979). It is a ?settled proposition that a person may be required to produce speci?c documents even though they contain. incriminating assertione'of fact a: belief because the creation of those documents was not ?compelled? within the meaning of the privilege [against United States v. Hubbeii, 5.30 US. 27, 35-36 (2000); accord Fis?her v. United States, 425 US. 391, 401 (1976) Fifth Amendment protects against ?cornpelled selfuincrimination, not the disclosure of private information?). Thus the contents of the phone, Obtained pursuant to a validly executed warrant are only subject to objections raised under the Fourth Amendment, not the Filth Amendment. Additionally, there is no question that a. motion to compel is compulsive and the production of the passcode or ?ngerprint would be incriminating.? The analysis turns on whether a passcode or a ?ngerprint is "testimonial communitation.? 1 lncriminating has been de?ned as ?any disclosures that the witness reasonably believes couid be used in a criminal prosecution or could lead to other evidence that might be so used Kastigar v. United States, 406 US. 441, 445 (1972). Re: Commonweal?i ofVirgin?ia v. David Charles Baust Docket Hm: omit?1439 - October 28. 2014 Page 3 of 5 Passcode or Fingerprint ?An act is testimonial when the accused is forced to reveal his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the government." U.S. v. 823 F. Supp. 2d 665, 668 (2010) (citing United States v. Doe, 487 US. 201, 212 (1987)). ?[Tlhere is a signi?cant difference between the use of compulsion to extort communications from a defendant and compelling a person to engage in conduct that may be incriminating.? Hubbell, 530 U.S.at 35. ?[Tjhe privilege offers no protection against compulsion to Submit to ?ngerprinting, photography, or measurements, to write or speak for identification, ?to appear in court, to stand; to assume a stance, to walk, or to make a particular gesture." Wade, 388 US. at 223. ?(Elven though the act may provide incriminating evidence, a criminal s?uspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice. The act of exhibiting such physical characteristics is not the same as a sworn communication by a witness that relates either express or implied assertions of fact or belief.? Hubbeli, 530 U.S. at 35. A witness's ?act of production itself could qualify as testimonial if conceding the existence, possession and control, and authenticity of the documents tendis] to - incriminate [him or her].? United States v. Doe (In re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335, 1343 (11th Cir. 2012') (citing holding of Fisher v. United States, 425 US. 39.1, 4.10 (1976)). Nevertheless, ?[w]hen the ?existence and lecation? of the documents under subpoena are a ?foregone Conclusion" and the witness "adds little or nothing to the sum total of the Government's information by conceding that he in fact has the then no Fifth Amendment right is touched because the ?question is not of testimony but of surrender. Doe v. United States (In re Grand Jury subpoena), 383 F.3d 905, 910 (9th Cir. 2004) (citing Fisher, 425 at411). ?[T]he Government is in' no way relying on the ?truthtelling? of the [witness] to prove the existence of or his access to the documents.? Fisher, .425. US. at 41-1.. ?Whether the existence of documents is. a foregone conclusion is a question ctr-tact, subject to renew for clear error-" United States v. Norwdod, 420 F.3d 888, 895 (8th Cir, 2005-) (Citing United States v. Doe, 425 US. 605, 813?14 (1984)). Therefore, in Hubbell, the Court found the action of producing documents in response to a subpoena Was testimonial in nature and therefore subject to the constitutional privilege against self-incrimination. Hubbell, 530 U-.S. at 40. The Court was persuaded by the fact that in the act of production, the respondent had to take ?the mental and physical steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena." Id. at 42. The Court reasoned that given this information, ?producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.? Moreover, . . . when the [witness] responds to the subpoena, he may be compelled to take the witness stand Re: Commonwealth of Virginia v. David Chartes Baust Docket No; 83.14.1439 October 28, 2014 Page 4 of 5' and answer . . . whether he has produced everything demanded by the subpoena.? Id. at 36?37. The Court found notable that the text of the subpoena, often using the phrase ?any and all documents related,? made it obvious that the prosecutor needed respondent?s assistance to identify potential sources of infonnation and to produce those sources of information. Id. at 41. Therefore, when the'respondent produced these documents in response to the subpoena, it was the ?Tunctional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition.? Id. at 41?42. ?The assembly of those documents was like telling an inqmsitor the combination to a wall safe, not like being forced to surrender the key to" a strongbox.? Further, the Hubbell Court found that the ?foregone 4 - cOnCIUSioni' doctrine did not apply in this Case, Where the Government had not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents uItimately produced by respondent.? Id. at 45. Similarly, in the context of compelling the production of a passcode, the US. District Court for the Eastern District of Michigan held that compelling the defendant to. provide a password is a testimonial communication. United States v. 823 F. SUpp. 2d 665, 669 (ED. Mich. 2010). The court reasoned ?forcing the Defendant to reveal the password . . . requires Defendant to communicate ?knowledge,? unlike the production of a handwriting sample or a voice exemplar." Id. ?It is the ?extortion of information from the accuSe?d,? the attempt to force him to ?disciose the contents of his own mind" that implicates the Clause." Id. (quoting United States v. Doe?, 487 US. ?at 211) (emphasis in original). The court found Hubbell?s distinction betWeen telling an in'quisitor the combination to a wall safe and surrendering a key to a strongbox instructive. Id. Similar to having to divulge the combination to a safe, the A court reasoned ?the government is not seeking documents or objects - it is seeking testimony from the Defendant, requiring him to divulge through his mental processes his password.? Id.; accord In re Grand Jury Sproena (Boucher), No. 2007 US. Dist. LEXIS 87951 at *16, 2007 WL 4246473 (D. Vt. Nov. 29,. 2007) (?Since the government is trying to compel the production-of the passworditself, the foregone conclusion doctrine cannot apply. The passwordis- not-a physical- thirigl? It. Bout-that knows the password, it only exists in his In this case, the Defendant cannot be compelled to produce his passcode to access his smartphone but he can be compelled to produce his ?ngerprint to do the same; The footage itself would not be protected under the Fifth Amendment because its creation was voluntary, is. not compelled. As stated above, the Fifth Amendment only protects against ?compelled? selfmincrimination, therefore the contents of Defendant's 2 However, on appeal, the District Court for the District of Vermont found that recidian Defendant to produce an version of the documents in his hard drive that he had already provided access to previousiy was not testimonial because the existence of and location of the documents were a ?foregone conclusion." In re Grand Jury subpoena to Boucher, 2009 US. Dist. LEXIS 13006 at 2009 WL 424718 (B. Vt. Feb. 19. 2009). - Re: Commonweat?'r of Virginia v. David Charles Baust Docket No; CR14-1439 October 28. 2014} Page 5 of 5 phone, created voluntarily, are not protected against disclosure. However, compelling Defendant to provide access through his passcode is both compelled and testimonial and therefore protected. Contrary to the Commonwealth?s assertion, the password is not a foregone conclusion because. it is not known outside of Defendant?s mind. Unlike a document or tangible thing, Such as an copy of the footage itsetf, if the password was a foregone conclusion, the Commonwealth would not need to compel Defendant to produce it because they would already know it. As reasoned in Defendant cannot be compelled to ?divulge through his mental processes? the passcode for entry. The ?ngerprint, like a key, however, does not require the witness to divulge anything through his mental processes. .On the contraryclikephysical characteristics that are non-testimonial, the ?ngerprint oi Defendant if. used to access his phone is likewise nondestimonial and does not require Defendant to "communicate any knowledge? at all. Unlike the production of physical characteristic evidence, such as a fingerprint, the production of a password forces the Defendant to ?disclose the contents of his own mind." For this reason the motion to compel the passcode should be DENIED but the motion to compel the ?ngerprint should be GRANTED. Unenc?rypted Footage . Neither,? has the Commonwealth asked to compel the video recording. However, from the testimony of the witness at the hearing, the existence and ld'ca'tiOn of the recording is not a foregone conclusion and compelling Defendant to produoe an version would be self-incriminating. The most the Commonwealth knows is that the recording '?cOuld exist? because the device ?may have recorded" the assault and transmitted it to the phone. The alte?ma'tive is also true, that the device ?may not have? recorded the assault and the recording ?may not exist." This being the only reason the Commonwealth suspects there may be a recording, the existence and location of the resording is net a foregone conclusion. Defendant?s production of the recording would be testimonial because Defendant would be admitting the recording exists, it was in his possession and control, and that. the recording is authentic. Therefore, the Commonwealth. could not compel Defendant'to produce an version of the recording. Sincer Steven C. Frucci Presiding Judge SCF?lalg/nc