A former Madras police officer accused of child sex abuse will not be physically restrained so authorities can search his cell phone, which the government had initially suspected could be opened by its facial recognition software alone.
John Joseph Wallace Jr. is facing federal charges of attempted sexual abuse of a minor, and three counts of abusive sexual contact with a child.
On March 13, a federal magistrate signed a warrant authorizing the search of the phone Wallace had on him when he was arrested, according to court records. The warrant would allow the government to unlock the phone by seizing Wallace and using “reasonable force to restrain (him) temporarily in order to complete the scan of his face.”
The case is being pursued by Oregon’s U.S. attorney because the alleged crimes are said to have taken place on the Warm Springs Indian Reservation.
The accuser is a “minor tribal member known to” Wallace, according to Kevin Sonoff, spokesman for the Oregon U.S. Attorney’s Office.
Wallace was arrested by Warm Springs Police and indicted Feb. 28. He made his first court appearance March 1, entering a not guilty plea. He was fired from Madras Police in April following an internal investigation, according to Chief Tanner Stanfill, who declined to elaborate on the nature of the investigation. Wallace worked as an officer with the Warm Springs Police Department and before that, as a reserve officer for Madras.
In response to the magistrate’s warrant, Wallace’s attorney, Thomas Price, filed a motion six days later asking the court to quash the warrant, invoking Wallace’s Fifth Amendment protections against self-incrimination.
But since obtaining the search warrant, the government learned a facial scan would not unlock the device, assistant U.S. Attorney Paul T. Maloney wrote.
“The government will continue to use its efforts to access the data via other means,” he said.
Reached Thursday, Price could not comment on the case.
But some in the Oregon legal community were troubled by the government’s initial attempts to forcibly unlock Wallace’s phone.
The U.S. Supreme Court has held that a warrant is necessary to draw blood from a driver who doesn’t consent to one.
There is precedent allowing police to compel a person to provide a fingerprint to access a device that may contain evidence, although courts are split. But facial recognition software is new, and a court has yet to rule on the subject. The first widespread commercial application occurred seven months ago when Apple rolled out its iPhone X with “Face ID” authentication software.
“It’s brand-new, and ultimately scary,” said Olcott Thompson, a Salem defense attorney and the president of the Oregon Criminal Defense Lawyers Association. “It’s scary that the government can force you to show your face so that they can get access to, basically, all your life. Most of us have everything on our phones.”
Mat dos Santos, legal director for the Oregon chapter of the American Civil Liberties Union, said the ACLU cautions people to use passcodes to protect their devices, rather than biometric data, which doesn’t have as many protections under the law.
“Courts have said biometric data is not the same as trying to compel someone to provide a passcode, and the courts have not treated it the same way,” he said. “Law enforcement has always been able to restrict your body. The distinction is generally drawn on this notion that law enforcement can never compel you to share information that is only in your brain.”
Wallace’s four-day jury trial was originally scheduled for May 1 but has been rescheduled to Aug. 14.
In early March, Wallace requested and was granted an exception to his conditional release from jail to attend a family fishing trip in Coquille.
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