Wednesday, September 19, 2018
Public safety

Cops used dead man’s finger in attempt to access his phone. It’s legal, but is it okay?

LARGO — Most people agree what the Largo detectives did at the funeral home was legal.

What they diverge on is whether it was appropriate.

"I just felt so disrespected and violated," said Victoria Armstrong, whose fiance, Linus F. Phillip, was shot and killed by a Largo police officer last month.

Armstrong, 28, happened to be at Sylvan Abbey Funeral Home in Clearwater the day two detectives showed up with Phillip’s phone, she said. They were taken to Phillip’s corpse. Then, they tried to unlock the phone by holding the body’s hands up to the phone’s fingerprint sensor.

Lt. Randall Chaney said it was an unsuccessful attempt to access and preserve data on the phone to aid in the investigation into Phillip’s death and a separate inquiry into drugs that involved Phillip, 30. While Chaney said detectives didn’t think they’d need a warrant because there is no expectation of privacy after death — an opinion several legal experts affirmed — the actions didn’t sit right with Phillip’s family.

"While the deceased person doesn’t have a vested interest in the remains of their body, the family sure does, so it really doesn’t pass the smell test," said Charles Rose, professor and director of the Center for Excellence in Advocacy at Stetson University College of Law. "There’s a ghoulish component to it that’s troubling to most people."

Phillip was shot and killed March 23 at a Wawa gas station after police said he tried to drive away when an officer was about to search him. According to Chaney, there’s a 48- to 72-hour window to access a phone using the fingerprint sensor. Police got the phone back within that window but after the body was released from state custody to the funeral home.

PREVIOUS COVERAGE: Family of man slain by Largo police officer speaks out.

Christopher Prouty, a funeral director at Sylvan Abbey, deferred to the facility’s corporate office, which did not return a request for comment.

The account touches on issues ranging from the legal and ethical quandaries of data security in today’s technology-saturated world to what protections remain when you die. Phone security via physical characteristics such as your fingerprint or your face has only been available to consumers for a few years, making it a new challenge for police, Chaney said.

"We can’t remember having unlocked a phone in that fashion, either at the scene, the Medical Examiner’s office, or the funeral home," he said. "That’s just kind of how new this part of the technology is."

Several court rulings have weighed in on what privacy protections exist around phones as they’ve increasingly become mini-computers holding troves of confidential information.

A 2014 Supreme Court ruling established that warrantless search of a cellphone during an arrest is unconstitutional. Florida had its own run-in with the issue when an appeals court ruled a Martin County sheriff’s deputy who took a phone from a bystander photographing and filming a car crash violated the bystander’s Fourth Amendment protections against unreasonable search and seizure.

When it comes to accessing a phone, the situation becomes more complicated.

You probably get into your phone one of two ways: entering a passcode or pressing your finger to a fingerprint sensor typically located below your screen.

Darrin Johnson, a criminal defense attorney based in New Port Richey, pointed to a case out of Virginia that drew a distinction between the methods based on the Fifth Amendment protection against self-incrimination.

A trial judge determined that being forced to disclose your passcode is a no-go because it would involve divulging knowledge from your mind. But requiring you to provide a fingerprint is fair game.

"A fingerprint is not the same as compelling an individual to convey information that they have," Johnson said.

But those cases all dealt with people who were living. The landscape changes after death.

PREVIOUS COVERAGE: Largo police release video as State Attorney clears officer in shooting.

A deceased person can’t assert their Fourth Amendment protections because, well, you can’t own property when you’re dead, said Rose, the Stetson Law professor. If those rights do continue, they would apply to whoever inherits it.

But Phillip’s case raises another concern, the "ghoulish component" Rose was talking about: the use of his corpse at the funeral home.

"This is one of those set of factors that walks on the edge of every issue," Rose said.

Florida law dictates who is legally authorized to decide how to dispose of a dead person’s remains, said Anna Alexopoulos Farrar, communications director for the Florida Department of Financial Services, which regulates death care. It provides some details as to how remains can be handled by funeral and cemetery workers but doesn’t otherwise govern access to them.

With nothing in statutory law, the situation goes to the courts, and they have not been kind to the dead, said Remigius Nwabueze, an associate professor of law at Southampton Law School who has written extensively about rights after death and bioethics.

He pointed to a Michigan ruling that said a county medical examiner was allowed to take a blood sample without consent from a man killed in a car crash.

"The law has been most cruel, really unforgiving to a dead person," Nwabueze said. "It provides no entitlement or legal rights after death to a deceased person."

Nwabueze argues that it should, calling the Largo detectives’ actions "ethically unjustifiable," as does Greg Nojeim, director of the Freedom, Security and Technology Project at the Washington-base Center for Democracy and Technology.

"There should be some dignity in death," Nojeim said. "If I was writing the rules on this, it would be that the police would need a warrant in order to use a dead person’s finger to open up a phone, and I’d require notice to the family."

That could have helped Armstrong, who was baffled at her encounter with detectives at the funeral home that day last month.

"Nobody even calling us from the facility to let us know detectives were coming there at all is very disturbing," she said. "I’m very skeptical of all funeral homes now."

Contact Kathryn Varn at [email protected] or (727) 893-8913. Follow @kathrynvarn.

 
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