A judge says he will decide Jan. 28 whether the man accused of negligent homicide in LSU Phi Delta Theta pledge Max Gruver’s death must turn over his phone password to prosecutors.
Judge Beau Higginbotham’s ruling could set a precedent that passwords to phones are not considered self-incriminating evidence and are not protected by the Fifth Amendment.
The judge already signed a search warrant for the contents of Matthew Naquin’s phone, but the district attorney’s office and the FBI have been unable to crack the code. Naquin will not give his password over, as other former fraternity members who were arrested after Gruver’s death did.
“Do you really want to unlock your pass code and give it to strangers or the government?” Naquin’s defense attorney, John McLindon, asked in an interview Tuesday. “I imagine this is going to the Louisiana Supreme Court.”
State prosecutors assured the judge they would use a third-party “clean team” to filter out information that’s not related to the Gruver case. The prosecution wants to investigate the phone for additional evidence, although EBR District Attorney Hillar Moore acknowledged there might not be anything of interest on the phone.
“We are not looking to rummage through this phone,” Moore said. “I’m not interested in private things he has on his phone. I’m only interested in what’s connected to this particular case.”
McLindon argues the Fifth Amendment right to remain silent protects Naquin from answering a question like, “What is your password?” Moore says he thinks there’s no difference between turning over a phone password and providing a blood sample or unlocking a door for an officer with a search warrant.
“I’m all for privacy,” Moore said. “But if a court orders that someone could look through my phone based on probable cause and reason, then privacy has to give way to the security of the public. It’s public safety versus privacy.”
A criminal is protected by the Fifth Amendment from providing compulsory incriminating or testimonial evidence.
“It doesn’t make sense to me that he’s not giving his pass code out,” Max Gruver’s father, Stephen, said after the trial. “He’s definitely wasting resources for the state.”
Gruver and McLindon both say they expect the judge’s ruling to be appealed. There’s no precedent for this type of case in Louisiana, and judges are handing down new rulings about privacy and technology on a regular basis.
“They say they’re asking for the pass code, but they’re really not,”McLindon told Higginbotham. “It’s not just a box of documents. It’s basically your entire life. That’s why you pick the pass code and that’s why the Fifth Amendment is there.”
Higginbotham did rule some additional testimony “admissible” Tuesday, including limited testimony about prior incidents involving Naquin. He will stand trial in July.