Federal judge says forcing alleged Capitol rioter to unlock laptop 'with his face' doesn't violate 5th Amendment



A federal judge ordered a man accused of participating in the Jan. 6 riot at the U.S. Capitol to unlock his laptop "with his face" after prosecutors said the laptop likely contains video footage from his helmet-worn camera that would incriminate him.

Defendant Guy Reffitt was arrested in January and charged with five federal crimes, including bringing a handgun to the Capitol grounds during the riot and obstructing justice by allegedly threatening his family, saying he would kill them if they turned him in. He has plead not guilty to all charges.

FBI investigators seized his Microsoft Surface Pro laptop and other technological devices after obtaining a search warrant earlier this year, CNN reported. The laptop was password-protected, but the investigators said it could be unlocked with facial recognition technology. Prosecutors believed the laptop contained more than six gigabytes of footage from Reffitt's helmet-worn camera, which would show that he had participated in the riot and trespassed on the U.S. Capitol grounds.

Attorneys for the defense had argued in court filings that Reffitt couldn't remember his password and that the search warrant for the laptop had expired.

Prosecutors had asked the judge to compel Reffitt to sit in front of the computer's camera and unlock it with his face. Judge Dabney Friedrich sided with their arguments, agreeing that forcing the defendant to unlock the laptop did not violate his Fifth Amendment right to be protected from self-incrimination.

The Fifth Amendment grants anyone in the U.S. the right to remain silent if they are charged with committing a crime, a protection for an innocent person "who otherwise might be ensnared by ambiguous circumstances." Courts have previously ruled that a defendant cannot be compelled to turn over computer passwords. Passwords are considered "testimonial" evidence, which a defendant can refuse to provide to law enforcement because doing so would mean answering a question based on the contents of their thoughts.

However, the prosecution successfully argued that those protections do not extend to a person's physical features, like their face or fingerprints, which can be used in place of password protection and are considered physical pieces of evidence. According to TechCrunch, the FBI also argued in its indictment that ordering Reffitt to sit in front of his computer and unlock it with his face "would not run afoul of the defendant's Fifth Amendment right against self-incrimination."

Several court rulings support this argument. In 2014, a Virginia judge said police could compel a defendant to provide his fingerprint to unlock a cellphone that may have contained incriminating evidence because a fingerprint, like giving DNA or a handwriting sample, is physical evidence. Similar cases were decided in 2016 and again in 2017.

"The self-incrimination analysis for biometric and face scanning would be the same as for Touch ID," Jeffrey Welty, a UNC-Chapel Hill law professor, said in a 2017 interview with The Verge.

"Standing there while a law enforcement officer holds a phone up to your face or your eye is not a 'testimonial' act, because it doesn't require the suspect to provide any information that is inside his or her mind."

Mark Levin: Is the Jan. 6 crowd getting JUSTICE or VENGEANCE?



Is justice blind, or is it political? As the Justice Department announced its first felony conviction from the Jan. 6 Capitol riot, Mark Levin took a critical look at the evidence.

From last summer's attacks on federal courthouses, the White House, and churches to arson, murder, and mayhem, BLM and Antifa have gotten off scot-free. So, Mark wants to know why the Biden team is so focused on taking down the rioters at the Capitol.

Watch the video clip from the latest episode of "LevinTV" below:


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Capitol rioter sentenced to less than a year in prison as first felony case is resolved



A Florida man who carried a Trump campaign flag onto the floor of the U.S. Senate during the January 6 riot at the Capitol building was sentenced to eight months in prison on Monday, becoming the first Capitol rioter to receive prison time for felony charges.

Paul Allard Hodgkins, 38, of Tampa plead guilty to obstruction of an official proceeding for interrupting the certification of the Electoral College results by Congress. He was photographed on the Senate floor carrying a "TRUMP" flag and wearing goggles around his neck.

Reading a prepared message to the court, Hodgkins apologized for his involvement in the riot, saying he got caught up as the crowd at former President Donald Trump's rally moved on to the Capitol and became a mob, escalating to violence.

"If I had any idea that the protest ... would escalate (the way) it did ... I would never have ventured farther than the sidewalk of Pennsylvania Avenue," Hodgkins said, according to the Associated Press.

"This was a foolish decision on my part," he added, acknowledging that Joe Biden is the legitimately elected president of the United States.

Prosecutors sought to have Hodgkins sentenced to 18 months behind bars, writing in a recent court filing that he, "like each rioter, contributed to the collective threat to democracy" by attempting to interrupt the certification of the 2020 presidential election results declaring President Joe Biden the winner. They told the court that even though the defendant was not destructive and did not assault anyone, he had still participated in "an act of domestic terrorism" as one of 50 people who had breached the Senate chamber.

The prosecution asked the judge to "send a loud and clear message to other would-be rioters... if and when they're caught they will be held accountable," according to WRC-TV reporter Scott MacFarlane.

Lawyers for the defense asked for leniency and no prison time, strongly objecting to calling the January 6 riot an act of "domestic terrorism." They said it was a protest that became a riot and observed that of the more than 535 individuals arrested in connection with the riot, no one has been charged with terrorism.

The defense attempted to compare the Jan. 6 riot to the violence in Minneapolis after George Floyd was killed in 2020, but Judge Randolph Moss cut off their argument.

Judge's interruption is potentially a message to other defendants and defense lawyersIf defense lawyer was testin… https://t.co/o1UzoA0FbA

— Scott MacFarlane (@MacFarlaneNews) 1626708136.0

Defense lawyers also said in court filings that Hodgkins' actions were similar to those of Anna Morgan Lloyd, who was among the first rioters to be arrested. She pleaded guilty to misdemeanor disorderly conduct last month and was sentenced to three years' probation.

In pronouncing his sentence, which amounts to less than a year in prison, Moss said that Hodgkins had participated in "an assault on democracy."

"It left a stain that will remain on us ... on the country for years to come," he added.

Hodgkins struck a deal with prosecutors last month to plead guilty to one count of obstructing an official proceeding, which carries a maximum sentence of 20 years in prison. In exchange, prosecutors dropped lesser charges of entering a restricted building and disorderly conduct.

Photographs and video footage show Hodgkins on the Senate floor wearing a Trump 2020 T-shirt, carrying the campaign flag, and wearing eye-goggles around his neck. He took a selfie with several other rioters, including Jake Angeli, an Arizona resident known as the QAnon Shaman.

Prosecutors agreed that Hodgkins deserved some leniency because he was never accused of assaulting anyone or damaging property and because he almost immediately pleaded guilty after his arrest. But they also emphasized that he had left Tampa for the Jan. 6 Trump rally with rope, protective goggles, and latex gloves in a backpack. They said these items demonstrated that he had come to Washington D.C. prepared for violence.

This sentencing is seen as a key benchmark for how the hundreds of other rioters facing charges might be sentenced should they also plead guilty.