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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*


    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


    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.


    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
    1. Virginia v. Baust, No. CR141439, 2014 WL 6709960, at *1 (Va. Cir. Ct. Oct. 28, 2014).
    2. Id.


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