An ex-LSU student charged with negligent homicide in the September 2017 alcohol-related hazing death of fraternity pledge Max Gruver is vigorously fighting prosecutors' attempts to obtain the password to his cellphone.
The East Baton Rouge Parish District Attorney's Office seized Matthew Alexander Naquin's phone through a court order last November but has been unable to access its contents because the phone is passcode-protected.
Prosecutors have filed a motion asking state District Judge Beau Higginbotham to order Naquin, 20, of Fair Oaks Ranch, Texas, to turn over the code. Naquin's attorney claims such an order would violate Naquin's constitutional right against self-incrimination.
Gruver, 18, of Roswell, Georgia, died following a hazing ritual that senior Phi Delta Theta members called "Bible study," in which pledges were required to chug hard liquor when they gave wrong answers to questions about the fraternity, authorities said.
In the fight over Naquin's cellphone, defense attorney John McLindon and District Attorney Hillar Moore III both say the issues raised by Naquin have never been directly addressed by either the Louisiana Supreme Court or the U.S. Supreme Court.
The stakes are high, according to both men.
"I don't think many citizens want the government rummaging through their phone," McLindon said in an email. "I believe the manufacturers of smartphones believe in privacy as well; otherwise, the phones would be made in a way that they could be accessed easily."
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Moore contends that if Naquin is not compelled to provide his passcode, "it would indeed set a harmful and dangerous precedent for Louisiana and the nation."
"Deeming the passcode protected under the 5th Amendment would lead to absurd consequences — criminals would know not to use face recognition or fingerprints to lock their phones and instead always use passcodes to avoid access to law enforcement," the district attorney also said Wednesday in an email.
Higginbotham is scheduled to hear the state's motion next Tuesday.
A former LSU student charged with negligent homicide in the Sept. 14 alcohol-related hazing death of freshman fraternity pledge Max Gruver was…
McLindon argues in Naquin's opposition, filed Nov. 15, that Naquin's phone is unrelated to the alleged crime of negligent homicide. Moore's office disputes that argument.
The state's motion includes the affidavit for search and seizure warrant that District Attorney's Office investigator Jeff Malone filed with the 19th Judicial District Court to obtain permission to confiscate Naquin's phone.
Malone states in the affidavit that, throughout the investigation into Gruver's death, Naquin "was found to be a main participant during the hazing event," and LSU police reports indicate Naquin was "the most aggressive, and in charge of the hazing incident."
The affidavit also says witness statements and electronic records indicate Naquin "communicated with other defendants through the use of mobile devices regarding the criminal conduct at issue before, during, and after the death of Maxwell Gruver."
"Witness statements provided by LSU police further indicate that additional communication exists regarding other hazing incidents and criminal conduct prior to" Gruver's death, Malone wrote in the affidavit.
McLindon argues in Naquin's opposition to the motion to compel that the state "can speculate what a college-aged male might have on his smartphone, but that speculation is woefully insufficient to satisfy the onerous burden necessary to trample Naquin's Fifth Amendment privilege against self-incrimination."
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Moore previously went to court seeking access to a phone owned by Naquin co-defendant Sean-Paul Gott. Gott’s lawyers argued the state wanted their client to waive his constitutional right against self-incrimination, though Gott ultimately shared his passcode.
And there have been other similar cases locally and nationally.
After Brittney Mills, 29, was shot to death in 2015, Moore and the FBI asked Apple for help accessing her phone. The company did not comply, citing its customers’ privacy rights. Moore found a private company that accessed her phone’s contents, but after reviewing it, the homicide case remains under investigation.
And following the deadly December 2015 terrorist attack at a Christmas party in San Bernardino, California, Apple refused to help the FBI break into one of the suspects’ phones, fearing its help could set a precedent. A private company accessed the data for agents.
A former LSU student accused of negligent homicide in the fatal 2017 alcohol-related hazing of Phi Delta Theta pledge Max Gruver was "vocal" a…
Other court documents filed previously in the Gruver case claim Naquin was vehement about not wanting Gruver in Phi Delta Theta, and that Naquin was warned by members of the fraternity — just days before Gruver died — to tone down his interaction with pledges. He was told his actions with pledges were extreme and dangerous, the documents state.
Naquin is set for trial July 8. Negligent homicide is punishable by up to five years in prison.
His former roommate, Ryan Matthew Isto, 19, of Butte, Montana, and Gott, 22, a former LSU student from Lafayette, pleaded no contest in September to misdemeanor hazing in the Gruver case and agreed to testify at Naquin's trial.
Another former LSU student charged with hazing, Patrick Andrew Forde, 21, of Westwood, Massachusetts, has pledged his cooperation and truthful testimony at the trial. Prosecutors said they will decide later about whether to prosecute Forde.
An autopsy revealed Gruver's blood alcohol level was 0.495 percent, more than six times the legal limit to drive in Louisiana. The East Baton Rouge Parish Coroner's Office attributed his death to alcohol poisoning and aspiration, meaning he suffocated on his own vomit.
Phi Delta Theta is banned from LSU's campus until at least 2033.
Two former LSU students pleaded no contest Thursday to misdemeanor hazing in the alcohol-related death of freshman fraternity pledge Max Gruve…