from the brace-yourself-for-a-whole-new-wave-of-anti-encryption-bitching dept
Things are getting pretty unsettled in Florida in terms of compelling the production of phone passcodes. Less than a half-decade ago, refusing to produce passwords netted people contempt charges. As these cases moved forward through the court system, the legal calculus changed. As it stands now, state appeals courts in two Florida districts have found that forcing people to give up passcodes violates the Fifth Amendment. But there’s still some settling left to do and the First District has asked the state’s top court to take a look at the issue.
The latest development comes from Florida’s Fifth District, where another state appeals court has reached the same conclusion as the others: passcodes are testimonial, and forcing people to turn them over implicates the Fifth Amendment. (via FourthAmendment.com)
The case deals with some targeted vandalism and alleged stalking. Investigators feel the phone they found at the crime scene belongs to the suspect and contains evidence to support the aggravated stalking charges. (The victim also apparently found a GPS device attached to her car, presumably placed there by the suspect.)
The decision [PDF] recounts the state’s bizarre argument at the trial court level — one that claimed demanding a passcode from the suspect was not an “intrusion.”
Because Garcia’s smartphone was passcode protected, law enforcement was unable to unlock the phone to conduct the search. The State then moved to compel Garcia to provide the passcode, alleging in its motion that the contents of Garcia’s phone “are relevant to how the events occurred and whether [Garcia] is guilty,” and that providing the passcode would “involve no unreasonable intrusions upon the body of [Garcia].”
The trial court bought the state’s arguments and its “foregone conclusion” assumption and granted the motion to compel.
It orally found that providing the passcode was non-testimonial and thus, “the Stahl decision is controlling here.”
The decision the trial court cited (but didn’t discuss in its ruling) was handed down by the Second District Appeals Court in 2016. In that case, the court decided a passcode was non-testimonial because the passcode itself didn’t give the state anything it didn’t already possess. But, as was pointed out by the Fourth District in its decision in favor of the Fifth Amendment, the Stahl decision misses the point:
Contrary to the Stahl court’s conclusion, which the trial court adopted, 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.
But that’s all the trial court used here and it did so without explaining any of its reasoning in a written order. The appeals court says Stahl controls nothing because the Stahl decision did not correctly address the issue.
In Stahl, law enforcement obtained a warrant to search the defendant’s locked phone, but the defendant refused to provide them with his passcode. The State filed a motion to compel production of the passcode, which the trial court denied, finding the production of the passcode to be testimonial. The Second District Court quashed the order, holding that compelling the defendant to reveal his passcode was not testimonial because the passcode was “sought only for its content and the content has no other value or significance.”
We respectfully disagree with the Second District Court. Distilled to its essence, the revealing of the passcode is a verbal communication of the contents of one’s mind. (“As a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind.”). We agree with Garcia that the order under review requires that he utilize the contents of his mind and disclose specific information regarding the passcode that will likely lead to incriminating information that the State will then use against him at trial. We therefore conclude that the compelled disclosure of his passcode is testimonial and is protected by the Fifth Amendment.
The “foregone conclusion” exception doesn’t work here either. The court says US Supreme Court precedent deals with the production of documents, not oral testimony. Since the court considers oral revelation of a passcode “testimonial,” it’s unwilling to extend this exception to cover it. Doing so would “narrow” a right without adequate justification.
In summary, we hold that compelling a defendant, such as Garcia, to provide orally the passcode to his smartphone is a testimonial communication protected under the Fifth Amendment and that the foregone conclusion exception or doctrine does not apply to compelled oral testimony.
This decision also asks the Florida Supreme Court to weigh in on this issue and hand down precedent for the state. The appellate level appears to lean heavily towards recognizing compelled production to be a Fifth Amendment violation. Meanwhile, trial courts are acting as though the question was already settled by a single 2016 decision handed down by a single appellate district, ignoring every ruling that’s been handed down since then. This should happen sooner rather than later. The issue is too big to ignore.