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Can You "Plead the Fif" to Protect Your Cell Phone Passcode?

Posted by Alex K. Kriksciun | Feb 22, 2019 | 0 Comments

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Every once in a while, you hear about a fraternity pledge dying in some alcohol-related hazing mishap.  Unfortunately, this happened at LSU in September 2017.  The unfortunate pledge was one Max Gruver.  According to authorities, Mr. Gruver died following a hazing ritual that his fellow Phi Delta Theta members referred to as "Bible study," in which pledges were required to chug hard liquor when they gave wrong answers to questions about the fraternity.

Unsurprisingly, investigators seized the cell phones of the suspected perpetrators.  The “ringleader” of the alleged perps is one Matthew Alexander Naquin, who has been charged with negligent homicide. Prosecutors recently filed a motion to compel Mr. Naquin to provide them with the passcode to his cell phone, which he has been reluctant to provide to them.  Mr. Naquin and his legal team contend that the passcode is protected by the Fifth Amendment's privilege against self-incrimination and that he therefore should not be required to provide the same to law enforcement.

This touches on a bunch of issues.  First, I don't understand why prosecutors cannot just submit the phone for analysis and obtain what is referred to as an “extraction report” without Naquin's passcode.  It seems like law enforcement does this in Orleans Parish all of the time.  This article does mention that the FBI is currently trying to access the contents of Mr. Naquin's phone.  Why they have been heretofore unsuccessful is anybody's guess.

Second, I cannot imagine that the contents of one's passcode are not “testimonial” in nature, as argued by the state at the hearing.  In order for one's Fifth Amendment protection against self-incrimination to apply, the evidence must be testimonial (as defined by the Supreme Court).  This is why, for example, a person cannot refuse to submit to a DNA test on Fifth Amendment grounds.  In my mind, the numbers contained in a cell phone passcode are more like testimony at trial than DNA or fingerprint evidence.  Presumably, those numbers reflect the thought processes of Mr. Naquin – it could be a birthday, some combination of lucky numbers, or just about anything really.  The point is that those numbers are unique to Mr. Naquin and represent some sort of logical thought process in his mind.

Third, I am very much afraid of government overreach in this case.  I'm sorry, but you are not going to convince me that a person does not have an expectation of privacy in his or her cell phone.  We put passcodes on our phones for a reason.  What's next – a judge ordering a defendant to provide the combination to a safe?  A judge ordering a person to turn over financial records that the institution will not turn over because of privacy concerns?

All this sounds like a very slippery slope to me.  I have no idea what Mr. Naquin has (or does not have) on his own cell phone.  The contents of a cell phone are (or at least should be) constitutionally protected.  It would appear from an outsider's perspective that the state has a pretty strong case against Mr. Naquin.  I'm not sure why it has to rely on such heavy-handed tactics to prove up its case.

Mr. Naquin's next court appearance is on February 25 (i.e. next Monday).  I'll be very interested to see what happens.

If you have additional questions about your Fifth Amendment right against self-incrimination, or need representati

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...

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