## Facts

- David Charles Baust, a Virginia Beach paramedic, was indicted for strangulation under Va. Code § 18.2-51.6 based on an alleged assault of his girlfriend in his bedroom.
- The victim told police a bedroom recording system continuously recorded and transmitted video to Baust’s smartphone, and that it could have recorded the alleged assault.
- Police executed a search warrant and seized Baust’s smartphone and related recording and computer equipment.
- The smartphone was encrypted and could be unlocked only by entering a passcode or using Baust’s fingerprint.
- The Commonwealth moved to compel Baust either (a) to disclose the phone passcode or (b) to provide his fingerprint to unlock the phone, seeking any recording of the alleged assault.

## Issues

1. Whether compelling a defendant to disclose a smartphone passcode is a testimonial communication protected by the Fifth Amendment privilege against self-incrimination.
2. Whether compelling a defendant to provide a fingerprint to unlock a smartphone is testimonial and protected by the Fifth Amendment.
3. Whether the foregone-conclusion doctrine permits compelled decryption or production of an unencrypted recording when the Commonwealth cannot show the specific file’s existence and location with certainty.

## Decision

- The court granted the motion in part and denied it in part.
- The court denied the request to compel disclosure of the passcode, holding the passcode is testimonial and protected by the Fifth Amendment.
- The court granted the request to compel Baust to provide his fingerprint to attempt to unlock the phone, holding a fingerprint is non-testimonial physical evidence.
- The court declined to compel Baust to decrypt the phone or produce an unencrypted recording because the Commonwealth did not establish the recording’s existence and location as a foregone conclusion.

## Legal Principles

- The Fifth Amendment privilege protects against compelled testimonial or communicative evidence, not compelled physical characteristics such as fingerprints.
- A passcode is testimonial because compelling it forces disclosure of knowledge (the contents of the defendant’s mind) and can communicate control or access to potentially incriminating information.
- Compelling a fingerprint to unlock a device is treated like compelled fingerprinting or providing a physical key: it is non-testimonial because it does not require communicating knowledge.
- Under the foregone-conclusion doctrine, compelled production is non-testimonial only when the government can independently show the evidence’s existence, possession/control, and authenticity such that the compelled act adds little or nothing; uncertainty that a specific recording exists on the phone defeats the doctrine.

## Conclusion

The court held that the Fifth Amendment prohibits compelling a defendant to reveal a smartphone passcode but permits compelling a fingerprint to attempt biometric unlocking, and it refused to order decryption or production of an unencrypted recording because the Commonwealth could not show the recording’s existence and location were already known.


Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014)