A state judge orders one of the former LSU students who allegedly played a role in the suspected hazing death of Max Gruver in 2017 to hand over his cellphone’s passcode, so investigators can search for potentially incriminating evidence. Loyola University Law Professor Dane Ciolino says it’s a surprising decision, considering how this same question has played out elsewhere.

“The majority of courts that have addressed this issue said that the Fifth Amendment prohibits the police from forcing a testimonial disclosure of a cellphone passcode.”

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An attorney for 20-year-old Matthew Naquin of Texas has argued by turning over the code, his client would violate his constitutional right against self-incrimination.

Ciolino says Naquin does not have a choice about turning over the cellphone, unless he wants to break the law. He says this isn’t a situation where you can just… conveniently forget the pin to get into the phone.

“He will be in contempt of court if he refuses to do so. If he contends that he forgot the passcode, the judge will listen to his testimony at the contempt hearing, and decide whether or not that is believable.”

Because requiring cell phone passwords is not settled law, Ciolino says convicting Naquin on the back of evidence obtained from his device is likely to lead to a lengthy series of legal challenges that may not favor the prosecution.

“If individuals are ultimately convicted in part on evidence on evidence that is found on those cell phones, then it could be subject to federal review on habeas corpus.”