G.A.Q.L., A MINOR v. STATE OF FLORIDA , 257 So. 3d 1058 ( 2018 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    G.A.Q.L., a minor,
    Petitioner,
    v.
    STATE OF FLORIDA,
    Respondent.
    No. 4D18-1811
    [October 24, 2018]
    Petition for writ of certiorari to the Circuit Court for the Seventeenth
    Judicial Circuit, Broward County; Andrew L. Siegel, Judge; Investigation
    No. 18-03-000966.
    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
    2
    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 (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 self-
    incrimination: “[A defendant] may in some cases be forced to surrender a
    3
    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 non-
    testimonial. Id. at 134. The court explicitly rejected the notion of
    4
    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,
    1 That this case involves the production of a passcode and password rather than
    decryption is of no consequence. With iPhones and many other smartphones,
    inputting a passcode chosen by the user is simply an abbreviated means of
    decrypting the phone’s contents, which are automatically encrypted by the phone
    whenever it is locked:
    An encryption key is basically a very long string of numbers that is
    stored in the encryption software’s memory. The software users do
    not have to remember this long number; instead [they] can enter a
    more easily remembered password or passphrase, which in turn
    activates the encryption key. When the government seeks to compel
    an ordinary citizen to turn over the means by which he can decrypt
    the data, the disclosure order will typically compel him to turn over
    his password rather than the encryption key.
    Seo, 
    2018 WL 4040295
     at *4 (quoting Michael Wachtel, Give Me Your Password
    Because Congress Can Say So, 14 U. Pitt. J. Tech. L. & Pol’y 44, 48 (2013)). In
    other words, the particular type of technology used to protect the information
    sought is not dispositive of whether the Fifth Amendment applies. Decryption
    and passcode production are thus governed by the same Fifth Amendment
    analysis.
    5
    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 self-
    incriminating 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-
    6
    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
    2The trial court was obligated to follow Stahl below. See Pardo v. State, 
    596 So. 2d 665
    , 666 (Fla. 1992) (“[I]n the absence of interdistrict conflict, district court
    decisions bind all Florida trial courts.”).
    7
    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, passcode-
    protected 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
    8
    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.
    KUNTZ, J., concurring in result.
    I agree with the Court that the circuit court’s order must be quashed,
    but I would do so on different grounds. The majority concludes that
    compelling the minor to reveal the passcode to his iPhone and the
    password to an unidentified iTunes account would require the minor to
    use the contents of his mind in violation of the Fifth Amendment. I agree
    with that conclusion. But the majority also holds that the State may
    overcome this violation of the minor’s Fifth Amendment rights if the
    foregone conclusion exception applies. Slip Op. 6 (citing Fisher v. United
    States, 
    425 U.S. 391
    , 411 (1976); In re Grand Jury Subpoena Duces Tecum
    Dated March 25, 2011, 
    670 F.3d 1335
    , 1345-46 (11th Cir. 2012)).
    “[A] person may be required to produce specific documents even though
    they contain incriminating assertions of fact or belief because the creation
    of those documents was not ‘compelled’ within the meaning of the [Fifth
    Amendment] privilege.” United States v. Hubbell, 
    530 U.S. 27
    , 35-36
    (2000).     But that same person cannot be compelled to offer oral
    incriminating testimony. See, e.g., United States v. Spencer, 17-CR-00259-
    CRB-1, 
    2018 WL 1964588
    , at *2 (N.D. Cal. Apr. 26, 2018) (footnote
    omitted) (“[T]he government could not compel Spencer to state the
    9
    password itself, whether orally or in writing.”); Virginia v. Baust, No. CR14-
    1439, 
    2014 WL 10355635
    , at *4 (Va. Cir. Ct. Oct. 28, 2014) (“[T]he
    Defendant cannot be compelled to produce his passcode to access his
    smartphone but he can be compelled to produce his fingerprint to do the
    same.”); United States v. Kirschner, 
    823 F. Supp. 2d 665
    , 669 (E.D. Mich.
    2010) (“[T]he government is not seeking documents or objects—it is
    seeking testimony from the Defendant, requiring him to divulge through
    his mental processes his password—that will be used to incriminate
    him.”).
    The foregone conclusion exception is a judicially created exception. See
    Hubbell, 
    530 U.S. at 44
    ; Fisher, 
    425 U.S. at 411
    . It is not found within the
    Fifth Amendment. It is also a doctrine of limited application. See Hubbell,
    
    530 U.S. at 44
     (“Whatever the scope of this ‘foregone conclusion’ rationale,
    the facts of this case plainly fall outside of it.”). The Supreme Court has
    applied the foregone conclusion exception only when the compelled
    testimony has consisted of existing evidence such as documents.
    But, here, the State sought to compel the oral production of the
    requested information. The foregone conclusion exception has not been
    applied to oral testimony, and for good reason. In Fisher, the court
    explained that compelling a taxpayer to produce documents “involves
    substantial compulsion. But it does not compel oral testimony; nor would
    it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of
    the contents of the documents sought.” 
    425 U.S. at 409
    . Based on what
    the production in Fisher would not do, the Supreme Court allowed the
    government to compel the production of documents. 
    Id.
     Requiring the
    accused to orally communicate to the government information maintained
    only in his mind would certainly compel oral testimony. So, in my view,
    the basis for granting the petition is not that the State failed to satisfy the
    requirements of the foregone conclusion exception. Rather, the petition
    should be granted because the foregone conclusion exception is
    inapplicable to the compelled oral testimony sought in this case.
    In response, the majority states that “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 . . . where the state
    compels the subject . . . to physically write down a password . . . .” Slip
    Op. 8. I agree it would be unreasonable to treat the two situations
    differently, as “the protection of the privilege reaches an accused’s
    communications, whatever form they might take.” Schmerber v. California,
    
    384 U.S. 757
    , 763–64 (1966); see also Spencer, 
    2018 WL 1964588
    , at *2.
    I would therefore treat both situations identically and conclude the
    10
    foregone conclusion exception is inapplicable to both.
    Finally, because I would conclude that the foregone conclusion doctrine
    cannot apply to compelled oral testimony, I would go no further. We need
    not address whether the forced decryption of a device would also violate
    the Fifth Amendment. See Slip Op. 5 n.1. That question should be left for
    another case, one where the State has sought the forced decryption of a
    device as a remedy.
    *        *         *
    Not final until disposition of timely filed motion for rehearing.
    11