Hello again! I hope that you found my last post instructive, interesting, and thought-provoking. I have a good feeling that you will find this one to be especially so. As always, this post is for educational purposes only and does not constitute legal advice. If you or someone you love are being investigated by law enforcement or you have been arrested, it is vital that you reach out to an attorney who can advise you on all of your rights and the best course of action in your case. Reach out to me now for a free consultation!
Today’s case comes to us from the Fourth District Court of Appeals and concerns a trial court’s ordering compelling a juvenile defendant to turn over passwords to a phone and to an iTunes account to law enforcement so that they may search his phone. This is a situation that comes up quite often and courts have come to different conclusions, making it all the more important that you reach out to a criminal defense attorney such as myself as soon as possible before taking any action that might prejudice your rights!
In GAQL v. State, 4D18-1811, the minor defendant was charged after being the driver in a crash that killed one passenger while the minor was allegedly under the influence of alcohol. The crash investigators located two phones within the crashed vehicle: one belonging to a surviving passenger and one belonging to the defendant. The surviving passenger told police that she had been communicating via phone with the juvenile and the state attorney wanted to see those communications to see if there were any incriminating statements on that phone. The police obtained a search warrant for the phone, but needed the passcode to the phone to gain access and the iTunes password to install an update on the phone so that it could be searched. The trial court granted the State’s motion to compel the juvenile to give the passcodes to the investigators despite the juvenile’s argument that this would violate his Fifth Amendment right against self-incrimination. The juvenile then appealed the trial court’s order to the Fourth District (this is one of the few instances were an appeal of a trial court’s order can be taken before the trial is conducted).
The District Court noted that courts, including Florida’s Second District, have grappled with this issue and have reached differing results. The Court started by analyzing whether the password should be considered a statement, or whether it is more like a blood sample, fingerprint sample, voice exemplar, or physical key, the disclosures of which are not protected by the Fifth Amendment.
Acts like furnishing a blood sample, providing a voice exemplar, wearing an item of clothing, or standing in a line-up are not covered by this particular Fifth Amendment protection, for they do not require the suspect to “disclose any knowledge he might have” or “speak his guilt.” In other words, the Fifth Amendment is triggered when the act compelled would require the suspect “to disclose the contents of his own mind” to explicitly or implicitly communicate some statement of fact…. [R]evealing one’s password requires more than just a physical act; instead, it probes into the contents of an individual’s mind and therefore implicates the Fifth Amendment. The very act of revealing a password asserts a fact: that the defendant knows the password.
The Court found that the giving of the password was testimonial in nature because it would be necessity imply knowledge/ownership/authorship of all of the contents of that phone – the texts, the emails, the photos, etc. The State wasn’t interested in the passcode itself, but what communications that the passcode would reveal on the phone.
Having decided that the passcode was testimonial, the Court then turned to an exception to the Fifth Amendment protection – the “foregone conclusion exception”. The defendant would still be required to turn over the passcode if this exception applied. This exception applies when:
As it pertains to electronic files, this doctrine requires that the state demonstrate with reasonable particularity “that (1) the file exists in some specified location, (2) the file is possessed by the target of the subpoena, and (3) the file is authentic.”
The files that the State must describe with particularity are the files on the phone – the alleged text messages, photos, emails, etc. – and not the passcode itself. Here, the State was engaging in a mere fishing expedition. It was hoping that it would find incriminating evidence on the phone, but could not state what that evidence would be. As such, the State could not rely upon the foregone conclusion exception and the juvenile was not required to turn over the two passcodes. For the State, all this means that it will not be able to rely upon whatever evidence it would have found when prosecuting the case. For the defendant, it means that he is not required to be a witness against himself, as the Constitution requires.
Again, if you find yourself being investigated by law enforcement or arrested for a crime, reach out to me immediately for a free consultation so that we can begin to craft your defense and protect your rights!
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
G.A.Q.L., a minor
STATE OF FLORIDA,
Two passcodes stand in the way of the state accessing the contents of a phone alleged to belong to a minor. The state sought, and the trial court agreed, to compel the minor to provide two passcodes, finding that “the act of producing the passcodes is not testimonial because the existence, custody, and authenticity of the passcodes are a foregone conclusion.” We disagree. The minor is being compelled to “disclose the contents of his own mind” by producing a passcode for a phone and a password for an iTunes account. Further, because the state did not show, with any particularity, knowledge of the evidence within the phone, the trial court could not find that the contents of the phone were already known to the state and thus within the “foregone conclusion” exception. We grant the minor’s petition for writ of certiorari and quash the trial court’s order compelling the disclosure of the two passcodes.
The minor was speeding when he crashed. One of the passengers in his car died in the crash. At the hospital, the police had a blood test performed, showing that the minor had a .086 blood-alcohol content.
After obtaining a search warrant for the vehicle, the police located two iPhones. One iPhone belonged to a surviving passenger. The surviving passenger told police that the group had been drinking vodka earlier in the day and that she had been communicating with the minor on her iPhone.
The second phone, an iPhone 7, was alleged to have belonged to the minor. The police obtained a warrant to search the phone for data, photographs, assigned numbers, content, applications, text messages, and other information. After obtaining a warrant to search this iPhone, the police sought an order compelling the minor to provide the passcode for the iPhone and the password for an iTunes account associated with it.
In its first motion, the state identified the iPhone and “request[ed] the court compel production of the passcode for the minor’s cellular phone.” In its second motion, the state sought to compel the minor to produce an iTunes password. This was necessary, the state argued, because the phone could not be searched before receiving a software update from Apple’s iTunes service. Thus, the state needed both the passcode to access the phone and the iTunes password to update it.
At a hearing on the motions, the state noted that the surviving passenger from the car crash had provided a sworn statement that on the day of the crash and in the days following the crash, she had communicated with the minor via text and Snapchat. The passenger had also told police that she and the minor had been consuming alcoholic beverages the day of the crash. As such, the state needed the phone passcode and iTunes password to obtain any possible communications between the defendant and the surviving passenger.
The minor argued that compelling disclosure of the iPhone passcode and iTunes password violated his rights under the Fifth Amendment to the United States Constitution. The trial court disagreed and concluded in its order that the minor’s “passcodes are not testimonial in and of themselves. See State v. Stahl, 206 So. 3d 124, 134 (Fla. 2d DCA 2016). The passcodes merely allow the State to access the phone, which the State has a warrant to search. See id.” According to the trial court, the state had established the “existence, possession, and authenticity of the documents” it sought. Thus, the “existences of the passcodes in the instant case is a foregone conclusion.” Finally, the trial court determined that the act of producing the passcode and password was not testimonial. As a result, the trial court granted the state’s motions to compel.
The minor petitioned for writ of certiorari to quash the circuit court’s order. This court has jurisdiction to issue a writ of certiorari under article V, section 4(b)(3) of the Florida Constitution. See also Appel v. Bard, 154 So. 3d 1227, 1228 (Fla. 4th DCA 2015) (granting certiorari to review order compelling answers to deposition questions and overruling Fifth Amendment privilege objections); cf. Boyle v. Buck, 858 So. 2d 391, 392 (Fla. 4th DCA 2003). Our standard of review when considering whether to issue such a writ is “whether the trial court . . . departed from the essential requirements of law.” Anderson v. E.T., 862 So. 2d 839, 840 (Fla. 4th DCA 2003) (citation omitted). To warrant a writ of certiorari, “there must exist (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (citation and internal quotation marks omitted).
Compelled Production of the Passcodes
This case is governed by the Fifth Amendment to the United States Constitution, which states: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” U.S. Const. amend. V; see also Fla. Const. art. I, § 9. The Fifth Amendment proscribes the compelled production of an incriminating testimonial communication. Fisher v. United States, 425 U.S. 391, 40 425 U.S. 391, 408 (1976).
“[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.” Doe v. United States, 487 U.S. 201, 210 (1988) (footnote omitted). As such, acts like furnishing a blood sample, providing a voice exemplar, wearing an item of clothing, or standing in a line-up are not covered by this particular Fifth Amendment protection, for they do not require the suspect to “disclose any knowledge he might have” or “speak his guilt.” Id. at 211 (citation omitted). In other words, the Fifth Amendment is triggered when the act compelled would require the suspect “to disclose the contents of his own mind” to explicitly or implicitly communicate some statement of fact. Curcio v. United States, 354 U.S. 118, 128 (1957).
In his famous dissent in Doe, Justice Stevens utilized an analogy to describe the scope of the Fifth Amendment protection against selfincrimination: “[A defendant] may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or deed.” Doe, 487 U.S. at 219 (Stevens, J., dissenting). Applying this analogy to the act of producing documents responsible to a subpoena, the Supreme Court once observed, “[t]he assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.” United States v. Hubbell, 530 U.S. 27, 43 (2000). Thus, when the compelled act is one of testimony rather than simple surrender, the Fifth Amendment applies. See Fisher, 425 U.S. at 411.
This analogy has been invoked with some frequency as courts have grappled with whether being forced to produce a phone password is more akin to surrendering a key or revealing a combination. See, e.g., State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016); In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir. 2012); United States v. Kirschner, 823 F. Supp. 2d 665 (E.D. Mich. 2010); Seo v. State, No. 29A05-1710-CR-2466, 2018 WL 4040295 (Ind. Ct. App. Aug. 21, 2018).
All of these password cases, with the exception of Stahl, have determined that the compelled production of a passcode is more akin to revealing a combination than producing a key. This is so because revealing one’s password requires more than just a physical act; instead, it probes into the contents of an individual’s mind and therefore implicates the Fifth Amendment. See Kirschner, 823 F. Supp. 2d at 669. The very act of revealing a password asserts a fact: that the defendant knows the password. See Hubbell, 530 U.S. at 43 (stating that the Fifth Amendment applies “to the testimonial aspect of a response to a subpoena seeking discovery” of sources of potentially incriminating information). Thus, being forced to produce a password is testimonial and can violate the Fifth Amendment privilege against compelled self-incrimination. See id. at 38 (“Compelled testimony that communicates information that may ‘lead to incriminating evidence’ is privileged even if the information itself is not inculpatory.”) (quoting Doe, 487 U.S. at 208 n.6).
In accepting this interpretation of Fifth Amendment doctrine, we disagree with the Second District’s Stahl opinion. In Stahl, officers sought to search a defendant’s locked phone, but the defendant refused to give them his passcode. 206 So. 3d at 128. The Second District concluded that making the defendant reveal his passcode was not testimonial, as the passcode was “sought only for its content and the content has no other value or significance,” making communication of the passcode nontestimonial. Id. at 134. The court explicitly rejected the notion of passcode-as-combination under the Doe analogy and determined that, although it did require the use of the defendant’s mind, compelled unlocking of the phone via passcode was not a protected testimonial communication under the Fifth Amendment. Id. We disagree.
We find the Eleventh Circuit’s decision in In re Grand Jury Subpoena to be instructive. In that case, John Doe was served a subpoena requiring him to decrypt several hard drives in his possession.1 670 F.3d at 1337. There, the court determined that compelled decryption of hard drives was testimonial in nature. Id. at 1346. In reaching this conclusion, the court noted that “decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” Id. Specifically addressing the “key” and “combination” analogy, the court likened the forced decryption to production of a combination because it is “accompanied by . . . implied factual statements” and utilized the contents of the mind with the final objective not of obtaining the decryption for its own sake, but for the purpose of obtaining the files protected by the encryption. Id.
Thus, this case is analogous to In re Grand Jury Subpoena. Here, the state seeks the phone passcode not because it wants the passcode itself, but because it wants to know what communications lie beyond the passcode wall. If the minor were to reveal this passcode, he would be engaging in a testimonial act utilizing the “contents of his mind” and demonstrating as a factual matter that he knows how to access the phone. See id. As such, the compelled production of the phone passcode or the iTunes password here would be testimonial and covered by the Fifth Amendment. Id.
The Foregone Conclusion Exception
Having determined that the production of the passcode and password are covered by the Fifth Amendment, we now address whether the “foregone conclusion” exception would nevertheless allow the state to compel the minor to reveal the passcode and password. We discuss this issue since the trial court applied the foregone conclusion exception below when it concluded that “the act of producing the passcodes is not testimonial because the existence, custody, and authenticity of the passcodes are a foregone conclusion.” Although the foregone conclusion exception might apply in some circumstances, it does not apply here. The trial court therefore erred in relying on the foregone conclusion exception as a basis for allowing the production of the passcodes.
In general, if the state can meet the requirements of the foregone conclusion exception, it may compel otherwise ostensibly selfincriminating testimonial production of information. Fisher, 425 U.S. at 411; In re Grand Jury Subpoena, 670 F.3d at 1345-46. Under this exception, an act of production is not a violation of the Fifth Amendment— even if it conveys a fact—if the state can show with reasonable particularity that, at the time it sought to compel the act of production, it already knew of the materials sought, thereby making any testimonial aspect a foregone conclusion. Id. at 1346. As it pertains to electronic files, this doctrine requires that the state demonstrate with reasonable particularity “that (1) the file exists in some specified location, (2) the file is possessed by the target of the subpoena, and (3) the file is authentic.” Id. at 1349 n.28.
It is critical to note here that when it comes to data locked behind a passcode wall, the object of the foregone conclusion exception is not the password itself, but the data the state seeks behind the passcode wall. See id. at 1349 (holding that foregone conclusion exception did not apply to compelled production of encrypted files because government could not show with “reasonable particularity” that files existed on the drive to which the individual who was subpoenaed had access). To find otherwise would expand the contours of the foregone conclusion exception so as to swallow the protections of the Fifth Amendment. For example, every password protected phone would be subject to compelled unlocking since it would be a foregone conclusion that any password-protected phone would have a passcode. That interpretation is wrong and contravenes the protections of the Fifth Amendment.
Below and on appeal, the state’s argument has incorrectly focused on the passcode as the target of the foregone conclusion exception rather than the data shielded by the passcode, arguing that “because the State has established the existence of the passcode and iTunes password, evidence on the Petitioner’s cell phone, and that he can access the content of his phone,” the compelled search was acceptable. Similarly, the trial court specifically held that the “existence, custody, and authenticity of the passcodes are a foregone conclusion” in the order appealed. This holding, which focuses on the passcodes rather than the data behind the wall, misses the mark.
On this subject, we again disagree with the Second District. In Stahl, the court focused on the “reasonable particularity that the passcode exists,” a fact that the state had established. 206 So. 3d at 136 (emphasis in original). However, this is not the proper focus of the inquiry—it is not enough to know that a passcode wall exists, but rather, the state must demonstrate with reasonable particularity that what it is looking for is in fact located behind that wall. See In Re Grand Jury Subpoena, 670 F.3d at 1348-49. Contrary to the Stahl court’s conclusion, which the trial court adopted,2 the “evidence sought” in a password production case such as this is not the password itself; rather, it is the actual files or evidence on the locked phone. Compare Stahl, 206 So. 3d at 135, with In Re Grand Jury Subpoena, 670 F.3d at 1347. Without reasonable particularity as to the documents sought behind the passcode wall, the facts of this case “plainly fall outside” of the foregone conclusion exception and amount to a mere fishing expedition. Hubbell, 530 U.S. at 44.
The concurrence, meanwhile, argues that the foregone conclusion exception could never be applied to compelled “oral testimony” in any case. Like Stahl, this view seems to misconstrue the object of the foregone conclusion exception. It is not the verbal recitation of a passcode, but rather the documents, electronic or otherwise, hidden by an electronic wall that are the focus of this exception. Further, it would seem unreasonable not to subject documents protected by a passcode to the foregone conclusion exception where the state compels the subject to orally recite a passcode, but allow the foregone conclusion exception to apply to protected documents where the state compels the subject, for example, to physically write down a password, effectively creating the document. In both scenarios the subject is compelled to disclose the “contents of his mind” by different modalities—written in one scenario and oral in the other—to the same inculpatory effect. See Couch v. United States, 409 U.S. 322, 328 (1973) (“It is extortion of information from the accused himself that offends our sense of justice.”) (emphasis added). However, in any event, since the state did not know with “reasonable certainty” the electronic documents behind the wall, this is not dispositive to the resolution of this case.
Here, the state’s subpoena fails to identify any specific file locations or even name particular files that it seeks from the encrypted, passcodeprotected phone. Instead, it generally seeks essentially all communications, data, and images on the locked iPhone. The only possible indication that the state might be seeking anything more specific was the prosecutor’s statement at the hearing that the surviving passenger had been communicating with the minor via Snapchat and text message on the day of the accident and after the accident, a fact that the trial court briefly mentioned in its order but did not appear to rely on in reaching its conclusion.
However, this stand-alone statement is not enough to meet the “reasonable particularity” requirement of the foregone conclusion exception. Even if the state had argued that the evidence on the phone was a foregone conclusion—which it did not—this record does not indicate that the state can say with reasonable particularity that the Snapchat and text files are located on the phone. It is not enough for the state to infer that evidence exists—it must identify what evidence lies beyond the passcode wall with reasonable particularity. Stahl, 206 So. 3d at 135-36; see also In re Grand Jury Subpoena, 670 F.3d at 1347 (“[C]ategorical requests for documents the government anticipates are likely to exist simply will not suffice.”). Thus, as was the case in In re Grand Jury Subpoena, the foregone conclusion exception is inapplicable. See 670 F.3d at 1349.
We also find Seo persuasive. Like in this case, there the state sought to compel a defendant to unlock her iPhone in order to search it. 2018 WL 4040295 at *2. After holding that doing so would implicate the Fifth Amendment, the Court of Appeals of Indiana concluded that the foregone conclusion exception did not apply. Id. at *11-12. It noted that the government seeking to compel the production of a passcode must “be able to describe with reasonable particularity the documents or evidence it seeks to compel.” Id. at *12. Importantly, the court observed that “[w]hat is being compelled here is not merely the passcode,” but the contents of the phone that are instantly decrypted in their entirety upon inputting the passcode. Id. at *13. Because the state could not meet its burden of identifying the contents—that is, the actual phone data—sought with reasonable particularity, the foregone conclusion exception did not apply. Id.
The state here seeks to force the minor to produce the passcode and iTunes password for an iPhone. To do so would be to compel testimonial communications in violation of the minor’s invocation of his Fifth Amendment rights. See In re Grand Jury Subpoena, 670 F.3d at 1346. Additionally, the trial court erred in relying on the foregone conclusion exception, as the requirements of that exception were not met. See id. at 1349. As such, we grant the minor’s petition for writ of certiorari and quash the order of the trial court.
Petition granted; order quashed. CIKLIN, J., concurs. KUNTZ, J., concurs in result only with opinion.