G.A.Q.L. v. State, 4D18-1811

• Decision Date: 24 October 2018
• Docket Number: No. 4D18-1811,4D18-1811
• Citation: 257 So.3d 1058
• Parties: G.A.Q.L., a minor, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

257 So.3d 1058

G.A.Q.L., a minor, Petitioner,

v.STATE of Florida, Respondent.

No. 4D18-1811

District Court of Appeal of Florida, Fourth District.

[October 24, 2018]

Eric T. Schwartzreich of Schwartzreich & Associates, P.A., Fort Lauderdale, and Jason Alan Kaufman of Kaufman Legal Group, P.A., Fort Lauderdale, for petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for respondent.

Levine, J.

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, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (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, 108 S.Ct. 2341, 101 L.Ed.2d 184 (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, 108 S.Ct. 2341 (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, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957).

In his famous dissent in Doe , Justice Stevens utilized an analogy to describe the scope of the Fifth Amendment protection against self-incrimination: "[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, 108 S.Ct. 2341 (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, 120 S.Ct. 2037, 147 L.Ed.2d 24 (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, 96 S.Ct. 1569.

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, 109 N.E.3d 418, 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, 120 S.Ct. 2037 (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, 120 S.Ct. 2037 ("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, 108 S.Ct. 2341 ).

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 non-testimonial. 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...