Cops used dead man’s finger in attempt to access his phone. It’s legal, but is it okay?
Published: April 20, 2018
Updated: April 21, 2018 at 10:27 AM
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 Phillips phone, she said. They were taken to Phillips corpse. Then, they tried to unlock the phone by holding the bodys hands up to the phones 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 Phillips death and a separate inquiry into drugs that involved Phillip, 30. While Chaney said detectives didnt think theyd need a warrant because there is no expectation of privacy after death an opinion several legal experts affirmed the actions didnt sit right with Phillips family.
"While the deceased person doesnt have a vested interest in the remains of their body, the family sure does, so it really doesnt pass the smell test," said Charles Rose, professor and director of the Center for Excellence in Advocacy at Stetson University College of Law. "Theres a ghoulish component to it thats 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, theres 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 facilitys 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 todays 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 cant remember having unlocked a phone in that fashion, either at the scene, the Medical Examiners office, or the funeral home," he said. "Thats 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 theyve 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 sheriffs deputy who took a phone from a bystander photographing and filming a car crash violated the bystanders 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 cant assert their Fourth Amendment protections because, well, you cant own property when youre dead, said Rose, the Stetson Law professor. If those rights do continue, they would apply to whoever inherits it.
But Phillips 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 persons 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 doesnt 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 persons finger to open up a phone, and Id 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. "Im very skeptical of all funeral homes now."
Contact Kathryn Varn at [email protected] or (727) 893-8913. Follow @kathrynvarn.
Teen killed in crash remembered as "always smiling and laughing"
WEEKI WACHEE Seth Leathers was on his way to play basketball at his church when he was killed Wednesday in a car crash on U.S. 19 in Spring Hill, according to family friend Laurie Pike.Leathers, 16, was the passenger in a car driven by his friend G...
New Port Richey Woman dies in single-car crash on SR 580
A 49-year-old woman died early Saturday in a single-car crash on State Road 580.Kristin Carlin, of New Port Richey, was driving in the eastbound lanes of SR 580 when she failed to round a curve and veered off the road near Charles Avenue, a Clearwate...
Man with multiple gun arrests now accused of fatally shooting Durant High football player
The first time deputies arrested Samuel Morrissey Jr., he faced charges of possession of marijuana and carrying a concealed firearm. He plead no contest in September, and the judge gave him a break by withholding adjudication. Ten days later, the 20-...
Man who attacked woman and stole her shorts arrested, deputies say
Deputies arrested a man they said tackled a woman in February and removed her shorts before fleeing.Robert Mark Hembree Jr., 31, was arrested late Friday. He faces charges of sexual battery and petit theft.PREVIOUS COVERAGE: Detectives seek man who a...
Dade City man killed in early morning hit-and-run, police say
A Pasco County man was struck and killed in an apparent hit-and-run early Saturday, police said.Thomas Michael Burdeshaw, 53, who lived on Sundance Drive in Dade City, was hit about 1:45 a.m. on the 36000 block of Blanton Road, police said.Witnesses ...
Police searching for person who shot a man to death in Largo
CLEARWATER Police are looking for a person who shot and killed a man late Friday at the Melrose on the Bay apartments on Bolesta Road. Ricardo Guzman, 32, called 911 just before midnight and told the operator he had been shot, said Lt. Randall Chan...
Motorcyclist dies after crash on Memorial Highway
TAMPA A motorcyclist driving north on Memorial Highway died after he crashed into a guard rail late Friday, police said."The man failed to negotiate a curve in the road and struck a guard rail," said Lt. Brett Owen. "No other vehicle was involved i...
Cops used dead mans finger in attempt to access his phone. Its 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...
Published: 04/20/18
Updated: 04/21/18
Deputies: Woman in road rage incident targeted ... a school bus?
TAMPA Deputies are searching for a woman accused of blocking a special needs school bus with her car, getting out and banging and kicking on the bus door until she broke the glass.And there were four children inside, deputies said, as she shouted a...
St. Pete police search for missing 20-year-old woman
ST. PETERSBURG Officers are searching for a 20-year-old woman who they believe to be missing and who could be in danger.Kayla Brandi Boone was last seen at about 11 p.m. Thursday in the 2700 block of Fourth Street S, according to St. Petersburg pol...