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19 Intell. Prop. L. Bull. 215 (2014-2015)
Virginia v. Baust No. CR141439 (Va. Cir. Ct. Oct. 28, 2014)

handle is hein.journals/iprop19 and id is 223 raw text is: Virginia v. Baust No. CR141439 (Va. Cir. Ct. Oct. 28, 2014) KATHERYN HUDMAN* BACKGROUND Defendant, David Charles Baust, was charged with violating Code of Virginia § 18.2-51.6, Strangling Another Causing Wounding or Injury. The victim claimed that, on February 19, 2014, the Defendant assaulted her in his bedroom. The Defendant allegedly recorded the incident via a recording device that transmitted the recordings from his bedroom to his smart phone. Previously, the Defendant used the recording device to transmit videos of the victim and himself engaging in sexual intercourse in his room.' The Commonwealth of Virginia was granted a search warrant that allowed them to recover computer equipment, recording devices, computer discs, flash drives, and the Defendant's smart phone. The Defendant and the victim both affirmed that there was likely a recording of the assault on the Defendant's smart phone, however, the police could not access the contents of the phone because it was protected by passcode and fingerprint encryption. The Commonwealth of Virginia brought a Motion to Compel the Production of the Passcode or Fingerprint to Encrypted Smartphone2 against the Defendant. The defense argued that the passcode and fingerprint encryption are testimonial, and thus protected under the Defendant's Fifth Amendment privilege against self-incrimination. ISSUE The issue before Circuit Court of Virginia was whether the production of the Defendant's passcode or fingerprint is considered testimonial communication, and thereby protected by the Fifth Amendment privilege against self-incrimination. DECISION The court granted the state's motion to compel the Defendant's fingerprint, but denied the motion to compel the passcode. * Ms. Hudman is a 2016 Juris Doctor candidate at the University of San Francisco School of Law. 1. Virginia v. Baust, No. CR141439, 2014 WL 6709960, at *1 (Va. Cir. Ct. Oct. 28, 2014). 2. Id. 215

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