State v. Stahl, Case No. 2D14–4283

CourtCourt of Appeal of Florida (US)
Citation206 So.3d 124
Docket NumberCase No. 2D14–4283
Parties STATE of Florida, Petitioner, v. Aaron STAHL, Respondent.
Decision Date07 December 2016

Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Petitioner.

Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Respondent.

BLACK, Judge.

The State seeks a writ of certiorari quashing the trial court's order denying the State's motion to compel the production of the passcode to unlock Aaron Stahl's cellphone. We grant the petition and quash the order.

I. Background

Stahl was charged with video voyeurism in violation of section 810.145(2)(c), Florida Statutes (2014), a third-degree felony. The probable cause affidavit for Stahl's arrest stated that the victim was shopping in a store when she observed a man crouching down with what she believed was a cellphone in his hand. She saw that the screen of the cellphone was illuminated. She then observed the man with his arm extended, holding the cellphone under her skirt. The victim confronted him, and the man told her that he had dropped his cellphone. While yelling for assistance, the victim attempted to detain the man, but he was able to free himself and flee the store before assistance arrived.

Store surveillance video confirmed that the man crouched down with an illuminated device in his hand, moving it toward the victim's skirt. It also showed the man exit the store and get into a vehicle in the parking lot. Using the vehicle's license plate number, law enforcement identified Stahl as the registered owner of the vehicle and obtained his driver's license photo. Law enforcement positively identified Stahl as the man in the surveillance video.

Stahl was arrested but a cellphone was not found on his person. During an interview with law enforcement, Stahl admitted to being in the store, denied taking inappropriate images, and verbally consented to a search of his cellphone, which he identified as an Apple iPhone 5 located in his residence. After officers retrieved the cellphone from Stahl's residence, Stahl withdrew his consent to search the phone.

The next day law enforcement sought a search warrant for the contents of Stahl's cellphone. The search warrant affidavit described the phone as an Apple iPhone 5 with a cracked screen and a piece of glass missing from the top right corner. It also listed the phone number associated with the phone and the service provider. The search warrant affidavit provided that the victim believed the device in Stahl's hand to be a cellphone and that when she confronted Stahl, he told the victim he had dropped his cellphone. It further provided that Stahl initially consented to a search of his iPhone 5 and that he confirmed the phone number and provided the location of the phone. A search warrant was issued for the contents of the described Apple iPhone 5.

However, the State was unable to execute the warrant and view the contents of the phone because Stahl's cellphone is passcoded and he refused to give law enforcement the passcode. As a result, the State filed a motion to compel production of the passcode. The State alleged that without compelling Stahl to provide the passcode, law enforcement's only option would be to send the phone to Apple to obtain the passcode.1 The State also alleged that there is no Fifth Amendment implication in compelling Stahl to give officers the passcode in this case.2 Stahl did not file any response to the motion.

At the hearing on the State's motion to compel, neither side presented testimony or evidence; only argument was presented. In denying the motion, the trial court found that the Fifth Amendment privilege against self-incrimination applied such that Stahl could not be compelled to produce the passcode. The court determined that production of the passcode was testimonial and that the State had not sufficiently established that the foregone conclusion doctrine applied.

The State appealed the order denying its motion, contending the order was reviewable pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B), permitting State appeals from orders suppressing evidence obtained by search and seizure.3

In response to an order to show cause why this case should not be dismissed as from a nonfinal, nonappealable order, the State contended that if not appealable as an order suppressing evidence, the order is reviewable by petition for writ of certiorari. This court subsequently issued an order converting the appeal to a petition for writ of certiorari and directing the parties to address the certiorari standard.

II. Standard of Review
The ability of the district courts of appeal to entertain [S]tate petitions for certiorari to review pretrial orders in criminal cases is important to the fair administration of criminal justice in this state. Otherwise, there will be some circumstances in which the [S]tate is totally deprived of the right of appellate review of orders which effectively negate its ability to prosecute. If a nonfinal order does not involve one of the subjects enumerated in Florida Rule of Appellate Procedure 9.140(c)(1), the [S]tate would not be able to correct an erroneous and highly prejudicial ruling. Under such circumstances, the [S]tate could only proceed to trial with its ability to present the case significantly impaired. Should the defendant be acquitted, the principles of double jeopardy prevent the [S]tate from seeking review; thus, the prejudice resulting from the earlier order would be irreparable.

State v. Pettis, 520 So.2d 250, 253 (Fla. 1988). Where the State has met the jurisdictional requirements for a writ of certiorari—a ruling that significantly impairs the State's ability to prosecute which could not be remedied via postjudgment appeal—and has established that the trial court violated a clearly established principle of law, issuance of a writ of certiorari is "an apt remedy." Id.; see also State v. Fernandez, 141 So.3d 1211, 1216 (Fla. 2d DCA 2014) ("[T]he trial court's pretrial order would leave the State without an effective remedy and cause irreparable harm. Accordingly, this is a case where certiorari review is an ‘apt remedy.’ " (quoting Pettis, 520 So.2d at 253 )); State v. Sandoval, 125 So.3d 213, 215 (Fla. 4th DCA 2013) ("To obtain certiorari relief from a pretrial evidentiary ruling, the [S]tate must show that the ruling was a violation of a clearly established principle of law resulting in a miscarriage of justice."). Here, the order is not appealable pursuant to rule 9.140(c)(1) and the State cannot appeal an acquittal. See Pettis, 520 So.2d at 253.

Stahl was charged with the third-degree felony of video voyeurism by "intentionally us[ing] an imaging device to secretly view, broadcast, or record under or through the clothing being worn by another person, without that person's knowledge and consent, for the purpose of viewing the body of, or the undergarments worn by, that person" for his "amusement, entertainment, sexual arousal, gratification, or profit." § 810.145(2)(c). A necessary element of the crime is the use of an imaging device, defined as "any mechanical, digital, or electronic viewing device; still camera; camcorder; motion picture camera; or any other instrument, equipment, or format capable of recording, storing, or transmitting visual images of another person." § 810.145(1)(b). Absent photographic or video evidence of the crime, the State's case would rest solely on the victim's statements and the video surveillance depicting Stahl moving a device in his hand toward the victim's skirt. It is apparent that the trial court's ruling serves as a serious impediment to the State's case if it does not altogether destroy it. The court's order denies the State the ability to execute an unchallenged search warrant, effectively denying the State access to what is likely to be direct evidence establishing elements of the charged offense. Cf. State v. Crumbley, 143 So.3d 1059, 1065–66 (Fla. 2d DCA 2014) ("This appeal involves an order that prevents the State from developing its evidence in the criminal case .... The order not only suppresses the evidence, it seals the information so that the State can never know what evidence is contained within the sealed documents.").

III. The hearing

At the hearing on the State's motion, the court began by asking various questions. The court inquired "How do I know that there was a picture taken?" and "What evidence are you asking me to rely on that gives me probable cause to believe a picture was taken?" The State responded that a warrant had been issued for the contents of the phone and probable cause was "not the issue at this point" but that based on the circumstances, the State believed there were photographs or video taken, based on the surveillance video and the victim's statements.4 The State then set forth why the Fifth Amendment privilege against self-incrimination is not implicated, identifying the three requirements necessary for a defendant to successfully invoke the privilege. The State argued that there was no difference between the court finding probable cause to issue the warrant and compelling Stahl to assist the State in "opening up" the phone. The State further argued that law enforcement's forensic expert had advised that he could not gain access to the phone because of the passcode and that if he tried to enter every possible combination the phone could permanently lock and potentially erase all of the contents.5

The court stated that while probable cause existed for the search warrant, the State did not know "for sure" whether a photo or video was on the phone. The court was incredulous that this was a case of first impression, but the State maintained that a dearth of case law existed. The court asked whether the State knew if there was additional security or encryption on the phone or the portion of the phone that stores photographs....

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