What could be a legal first in California is playing out in a sex assault case in San Diego. A judge issued a search warrant compelling the defendant to give up the passcode to his iPhone 6 as part of the investigation.
The warrant listed “passcode, biometric or swipe” according to defense attorney Kerry Armstrong.
“As far as I can tell, it’s never been done in California,” Armstrong said. “Our analysis is that it’s not allowable under the Constitution."
Armstrong represents U.S. Navy Commander John M. Neuhart II who is accused of following a colleague home from a bar three months ago and attempting to rape her.
Neuhart, 39, has pleaded not guilty to various charges including attempted forced rape and assault with intent to rape. In November, prosecutors filed an amended complaint adding assault with the intent to commit rape during a commission of a first-degree burglary. If Neuhart is convicted of all charges, he's facing life in prison.
During Thursday's pre-trial hearing, Armstrong filed a motion to exclude video found inside an iPhone 6 used by the defendant.
Neuhart was arrested September 12 in the Valencia Park neighborhood near the home of a sex assault victim. The woman’s screams for help had prompted a neighbor to call 911.
When police arrived, prosecutors say the woman's attacker escaped through a back door of the home.
Officers found Neuhart in a nearby canyon and took him into custody.
SDPD Detective Paul Tom testified Thursday that the arresting police officer discovered a phone that was actively recording a video when he searched for Neuhart's identification.
The phone had been recording for more than 40 minutes and was still recording when the officer took the phone into custody.
It was revealed in court that portions of the incident were captured on the video. Attorneys on both sides would not comment on the content of the video.
At issue is the legality of the search warrant and the circumstances of unlocking the phone in order to get that video, Deputy District Attorney Jennifer Tag said.
Tag said the case is similar to the FBI's battle with Apple over the content of the iPhone used by the suspect in the December 2015 San Bernardino shooting.
The legal standoff between the agency and the tech giant ended when the FBI purchased an iPhone cracking tool.
However, the legal questions raised by the San Bernardino investigation have not been answered.
Judge Kenneth K. So did not rule on the motion to suppress and asked both sides to write briefs on warrants for phone passcodes.
“These are new areas and new avenues of the law as iPhone keeps encrypting their phones with greater and greater sophistication,” Tag said.
The hearing was continued until January.
Neuhart, a married father of five, still works for the U.S. Navy. Most recently, he was the commanding officer of Helicopter Sea Combat Squadron 25, based at Anderson Air Force Base on Guam. The U.S. Navy relieved him of duty just days after he was charged.
The victim has been identified only as a fellow member of the U.S. Navy.
The Navy Times reported Neuhart was in San Diego for a conference at the time of his arrest.