Matthew Tyler Pollard v. State of Florida ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4572
_____________________________
MATTHEW TYLER POLLARD,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
_____________________________
Petition for Writ of Prohibition—Original Jurisdiction.
June 20, 2019
MAKAR, J.
To what extent does the Fifth Amendment right against self-
incrimination protect a suspect in a criminal case from the
compelled disclosure of a password to an electronic
communications device in the state’s possession? Courts differ in
their legal analysis of this question, resulting in no consensus in
state and federal courts; indeed, different approaches currently
exist between two Florida appellate courts on the topic. In this
case, we conclude that the proper legal inquiry on the facts
presented is whether the state is seeking to compel a suspect to
provide a password that would allow access to information the
state knows is on the suspect’s cellphone and has described with
reasonable particularity.
Matthew Tyler Pollard was arrested and charged with armed
robbery of two victims who were misled into believing they were
buying drugs. Pursuant to a warrant, the state seized an iPhone®
from Pollard’s car and filed a motion to compel Pollard to disclose
the phone’s passcode so that it could access broad categories of
encrypted information on the cellphone. The information sought
was described in general terms and broad categories in the
investigating detective’s affidavit in support of the search warrant:
• Call/text/communication history on and between
June 19, 2018 and June 25, 2018.
• Content of communications on and between June 19,
2018 and June 25, 2018.
• Picture(s) of narcotics, money, firearms.
• Written information about the illegal purchase,
possession, and sale of illegal narcotics, and or plans
of a robbery on and between June 19, 2018 and June
25, 2018.
• Activity listed in phone applications: Facebook,
Facebook Messenger, etc., concerning buying, selling,
or possessing illegal narcotics and or planning a
robbery on and between June 19, 2018 and June 25,
2018.
The affidavit did not state the existence or content of any
specific text, picture, call or other particular information. It noted,
however, that “it was reasonable to believe” that a co-defendant,
Draven Rouse, had “communicated with Pollard via cell phone”
both prior to and on the day of the robbery, presumably to
coordinate the robbery. Based on his training and experience, the
detective stated that persons in “criminal enterprises” sometimes
use cellphones to communicate and coordinate activities with
accomplices, to document criminal activities, and to compile
contacts useful in a criminal investigation; he did not, however,
identify any specific item that was on Pollard’s cellphone, only that
the state wished to seize from the cellphone all items in the
categories of information listed above.
Accessing the cellphone’s content required a passcode, which
the state in a one-page motion sought to compel from Pollard. The
state’s motion—and the trial court’s favorable ruling—relied
2
exclusively on State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016),
which upheld the compelled production of a cellphone’s passcode
over a defendant’s Fifth Amendment objection that doing so
violated his right not to testify as to the “contents of his mind,” i.e.,
knowledge of the passcode itself. The trial court relied on Stahl,
even though it arose in another district and (as discussed later)
involved different facts, because no other Florida court had
weighed in on the general topic at that time. Pardo v. State, 596
So. 2d 665, 666 (Fla. 1992) (“in the absence of interdistrict conflict,
district court decisions bind all Florida trial courts.”).
Based on Stahl, the trial court held the state established that
the cellphone was Pollard’s, that it was password protected, and
that if the password compelled from Pollard made the cellphone’s
content accessible, the password was deemed authentic, thereby
requiring Pollard to provide the password. Quoting Stahl, the trial
court also noted that the state had established by independent
means the “‘existence, possession, and authenticity of the
documents’ it seeks to recover from [Pollard’s] phone.” 206 So. 3d
at 135. It concluded that the “State already knows the information
it is seeking [Pollard] to produce and why.” The trial court did not
identify any specific documents or information in this regard, but
noted that “at [a] minimum, text messages” were part of the
coordinated effort to conduct the robbery. No limits were placed on
the scope of the search of the contents of the cellphone, but the
state was prohibited from using the compelled production of
Pollard’s password as evidence at trial; no limitation was put on
use of the documents and information that might be discovered.
The password was placed in a sealed and confidential file pending
resolution of Pollard’s petition for writ of prohibition, which seeks
to prevent the compelled use of the embargoed password. We treat
the petition as a petition for writ of certiorari, which requires a
departure from the essential requirements of the law that results
in material injury that cannot be corrected post-judgment. Art. V,
§ 4(b)(3), Fla. Const. (2019); Stahl, 206 So. 3d at 129; Grant v.
State, 832 So. 2d 770, 771 (Fla. 5th DCA 2002).
Courts nationwide are struggling to find common legal ground
on the constitutionality of compelled password production under
the Fifth Amendment and its application in specific cases. U.S.
Const. amend. V. (“No person . . . shall be compelled in any
3
criminal case to be a witness against himself”); see also Art. I, § 9,
Fla. Const. (2019) (same); see generally Marjorie A. Shields, Fifth
Amendment Privilege Against Self-Incrimination as Applied to
Compelled Disclosure of Password or Production of Otherwise
Encrypted Electronically Stored Data, 84 A.L.R. 6th 251 (2019)
(compiling Fifth Amendment cases involving “compelled disclosure
of an individual's password, means of decryption, or unencrypted
copy of electronically stored data.”).
The Fifth Amendment forbids a governmentally-compelled
testimonial communication (or act) that tends to incriminate the
communicator (or actor). In re Grand Jury Subpoena Duces Tecum
Dated March 25, 2011, 670 F.3d 1335, 1341 (11th Cir. 2012). “The
touchstone of whether an act of production is testimonial is
whether the government compels the individual to use ‘the
contents of his own mind’ to explicitly or implicitly communicate
some statement of fact. Id. at 1345 (quoting Curcio v. United
States, 354 U.S. 118, 128 (1957)). Forcing a defendant to disclose a
password, whether by speaking it, writing it down, or physically
entering it into a cellphone, compels information from that
person’s mind and thereby falls within the core of what constitutes
a testimonial disclosure. In this case, Pollard was compelled to act
in a testimonial manner by disclosing a password known only in
his mind. In this type of password compulsion case, the law is
unsettled as to whether a “foregone conclusion” exception might
apply, i.e., where the government knows that identifiable
documents exist under a defendant’s control such that obtaining
them via a compelled disclosure of a password is a mere formality
and thereby non-testimonial. The Supreme Court has approved
the exception’s use but not in the context of a compelled passcode
disclosure. See G.A.Q.L., 257 So. 3d at 1066 (Fla. 4th DCA 2018)
(“The Supreme Court has applied the foregone conclusion
exception only when the compelled testimony has consisted of
existing evidence such as documents.”) (Kuntz, J., concurring in
result).
Florida is no exception in the national judicial debate over
compelled password production. Since the trial court’s ruling, the
Fourth District issued its opinion in G.A.Q.L. v. State, 257 So. 3d
1058, 1062 (Fla. 4th DCA 2018), which seemingly conflicts with
the approach taken in Stahl as to the foregone conclusion
4
exception and allows compelled production of information where
the testimonial value of doing so is negligible. As a result, two
different analytical methods currently exist in Florida, though
both apply the same two-step framework, which asks (a) is the
compelled production of the password a testimonial and
potentially incriminating act, and, if so, (b) is the compelled
password production nonetheless permissible under the foregone
conclusion exception because its testimonial value is
inconsequential due to the state already knowing of the existence
of the requested information. Id. at 1063 (“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.”); Stahl, 206
So. 3d at 135 (“That is, by implicitly admitting the existence of the
evidence requested and that it is in the accused's possession the
accused ‘adds little or nothing to the sum total of the Government's
information’; the information provided is a foregone conclusion.”)
(quoting Fisher v. United States, 425 U.S. 391, 411 (1976) (“The
existence and location of the [tax-preparation] papers are a
foregone conclusion” such that taxpayer’s compelled production of
them “adds little or nothing to the sum total of the Government's
information by conceding that he in fact has the papers. Under
these circumstances by enforcement of the summons ‘no
constitutional rights are touched. The question is not of testimony
but of surrender.’”)) (citation omitted); see generally Fern L.
Kletter, Construction and Application of "Foregone Conclusion"
Exception to Fifth Amendment Privilege against Self-
Incrimination, 25 A.L.R. Fed. 3d Art. 10 (2017) (compiling cases
that discuss the foregone conclusion exception).
For example, if the central feature in a criminal case is what
files are on a cellphone, and the state can establish that a
defendant’s cellphone contains files that are described with
“reasonable particularity,” the compelled production of the
password to access those files (but only those files) does no damage
to the defendant’s constitutional right against self-incrimination
where sufficient evidence establishes that it is his phone on which
the files reside. In contrast, if a central feature of a criminal case
is who owns a seized cellphone or has the code to access it,
5
compelling a defendant to provide a password may be testimonial
and incriminating because it proves an unknown fact, i.e., who is
the cellphone’s owner or who can access it. For instance, if an
employee was alleged to have broken into a password protected
computer system, and caused cyber-harm therein, evidence as to
his ability to access the system (i.e., possession of the password)
would be incriminating because it supports the ability to access the
system.
In Stahl, a video voyeurism case, the defendant used a
cellphone to take video under a customer’s skirt, was identified via
store surveillance video, and arrested. After his locked cellphone
was produced pursuant to a search warrant, he admitted it was his
cellphone and initially agreed to permit police to search it for
images, but he changed his mind, resulting in the state’s request
to compel its password. Under those circumstances, the Second
District concluded that compulsion of the passcode was not a Fifth
Amendment violation under the foregone conclusion exception.
The three-part test for the foregone conclusion exception requires
that the state “must show with reasonable particularity that, at
the time it sought the act of production, it already knew the
evidence sought existed, the evidence was in the possession of the
accused, and the evidence was authentic.” Stahl, 206 So. 3d at 135
(citing In re Grand Jury Subpoena, 670 F.3d at 1344 (“Where the
location, existence, and authenticity of the purported evidence is
known with reasonable particularity, the contents of the
individual's mind are not used against him, and therefore no Fifth
Amendment protection is available.”) (footnote omitted).
Stahl’s application of foregone conclusion exception focused on
disclosure of the password itself, rather than the information that
access to the cellphone would produce. Stahl viewed the forced
disclosure of the password as non-testimonial because the
existence, custody, and authenticity of the password were a
“foregone conclusion” under the facts of that case. No one disputed
that the cellphone was the defendant’s and that he put it under a
customer’s skirt with its flash enabled and appeared to take
pictures that would be accessible in the cellphone’s memory (or via
cloud storage). The testimonial value of compelling the cellphone’s
password was negligible under the circumstances: it was Stahl’s
phone, evidence established his use of the phone during the
6
incident for flash-photography, and he initially agreed to allow
police to search the phone, thereby inferring his knowledge of the
passcode and its authenticity. By its holding, Stahl stands for the
proposition that where the state establishes factually that it knows
that a password existed, that the suspect possesses or controls the
password, and that the suspect’s actions disclosed or authenticated
the password sought (here by Stahl initially agreeing to allow
police to access the phone), it is a foregone conclusion to force its
disclosure. A similar result arose in State v. Johnson, WD 80945,
2019 WL 1028462 (Mo. Ct. App. Mar. 5, 2019), which involved
compelled production of a passcode by a defendant who had
previously entered it into his phone in the presence of government
actors.
The facts conveyed through his act of producing the
passcode were the existence of the passcode, his
possession and control of the phone’s passcode, and the
passcode’s authenticity. The State showed that it had
prior knowledge of those facts because Johnson
knowingly and voluntarily entered the passcode the
first time in the presence of law enforcement and
defense counsel for the purpose of having his expert
examine the phone; hence, their disclosure a second
time pursuant to the order to compel was a foregone
conclusion.
Id. at *14 (footnote omitted). Because the defendant had already
openly used the passcode in the manner described, the “compelled
act of production was not testimonial” and not a Fifth Amendment
violations. Id.
Unlike Stahl and Johnson, the decision in G.A.Q.L was not
based on application of the foregone conclusion exception to
unearth a passcode about which the state had prior knowledge via
its open use by the suspect (Johnson) or the suspect’s initial
agreement to disclose it (Stahl). Instead, G.A.Q.L. focused on the
state’s goal of accessing the information on the suspect’s cellphone
because the state lacked prior knowledge of the suspect’s
password. In Stahl, the court noted that the state sought “the
phone passcode not because it wants the passcode itself, but
because it wants to know what communications lie beyond the
7
passcode wall.” G.A.Q.L., 257 So. 3d at 1062. The court in G.A.Q.L.
concluded that compelling the passcode was akin to a testimonial
act (i.e., revealing the “contents of the mind” of the minor)
protected by the Fifth Amendment. It rejected Stahl’s analysis
under the foregone conclusion exception, applying the three-part
test to the information sought rather than the passcode. Id. at 1063
(“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.”). In rejecting Stahl’s password-centric approach,
the court said that to do “otherwise would expand the contours of
the foregone conclusion exception so as to swallow the protections
of the Fifth Amendment.” Id. It pointed out that under the
approach in Stahl “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.” Id. *
The application of Stahl is inconsistent with protection of a
defendant’s right against self-incrimination in situations where a
defendant has not given up his testimonial privilege in the
* Judge Kuntz concurred in the result, noting that the
“foregone conclusion exception is a judicially created exception” to
the Fifth Amendment with limited application to compelled
production of documents. G.A.Q.L., 257 So. 3d at 1066 (Kuntz, J.,
concurring in result). His conclusion, that “the foregone conclusion
doctrine cannot apply to compelled oral testimony,” is based on the
principle that forcing an “accused to orally communicate to the
government information maintained only in his mind would
certainly compel oral testimony.” Id. His bright-line approach is
appealing and has the virtue of consistency with the intent of the
Founders to protect against surrendering incriminating evidence
before or at trial. See Donald Dripps, Self-Incrimination, in THE
HERITAGE GUIDE TO THE CONSTITUTION 437-439 (David F. Forte &
Matthew Spalding eds., 2d ed. 2014) (noting that the Supreme
Court in the 1880s “took the view that the privilege protected
private books and papers” but has since “changed significantly”
Fifth Amendment doctrine.).
8
password itself. Unlike the situations in Stahl and Johnson, no
evidence establishes that Pollard had previously given up his
privilege in the password sought. In these situations, as the court
in G.A.Q.L. noted, the three-part test is tautological when applied
to passwords because all password-protected cellphones have an
“authentic” password, making the Stahl test somewhat circular. In
this regard, the court in Stahl said that “[i]f the phone or computer
is accessible once the passcode or key has been entered, the
passcode or key is authentic,” 206 So. 3d at 136, which begs the
question of whether sufficient evidence established that the
passcode is authentic before it had been compelled and used
successfully. The state must have sufficient proof of authenticity
before it can compel the password’s production; simply because a
compelled password unlocks a cellphone after the fact doesn’t
make it authentic ex ante. To do otherwise is “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).
The approach in Stahl makes sense, however, in those limited
situations where the state establishes that the testimonial value
of the compelled password has been abandoned, such as where a
defendant has voluntarily entered his passcode to access his
cellphone in the presence of law enforcement such that the
testimonial value of compelling the passcode’s production a second
time is negligible. Johnson, 2019 WL 1028462, at *14 (state
showed that defendant “knowingly and voluntarily entered the
passcode the first time in the presence of law enforcement and
defense counsel for the purpose of having his expert examine the
phone; hence, their disclosure a second time pursuant to the order
to compel was a foregone conclusion.”). We note that it becomes
predominantly a Fourth Amendment issue, not a Fifth
Amendment one, in such cases as to the scope of what the state is
allowed access in using the compelled password.
Turning back to G.A.Q.L., that court held that “if the state can
meet the requirements of the foregone conclusion exception, it may
compel otherwise ostensibly self-incriminating testimonial
production of information.” 257 So. 3d at 1063.
9
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. . . . 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. (citing In re Grand Jury Subpoena, 670 F.3d at 1349 n.28). In
applying the three-part test, the court concluded that the state
failed to identify with reasonable particularity any specific files
sought on the minor’s cellphone. It noted that “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.” G.A.Q.L., 257 So. 3d at 1064
(emphasis added). At best, the prosecutor at a hearing said a
surviving passenger had been communicating with the minor via
Snapchat and text message on the day of the accident and after the
accident, but it held that “this stand-alone statement is not enough
to meet the ‘reasonable particularity’ requirement of the foregone
conclusion exception.” Id. “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.” Id. The court in
G.A.Q.L. therefore concluded that the foregone conclusion
exception was not met.
We agree with the Fourth District that unless the state can
describe with reasonable particularity the information it seeks to
access on a specific cellphone, an attempt to seek all
communications, data and images “amount[s] to a mere fishing
expedition.” Id. On the assumption that the foregone conclusion
exception applies to core testimonial communications, such as a
compelled oral disclosure of a password, it is not applicable here
because the state failed to identify with particularity and certainty
what information existed beyond the password-protected
cellphone wall; mere inference that evidence may exist is not
10
enough. In re Grand Jury Subpoena, 670 F.3d at 1347 (“Case law
from the Supreme Court does not demand that the Government
identify exactly the documents it seeks, but it does require some
specificity in its requests—categorical requests for documents the
Government anticipates are likely to exist simply will not
suffice.”).
Applied here, the state’s generalized requests for multiple
categories of communications, pictures, and social media activity
fit the description of net cast far too broadly. The only category of
information that potentially meets the reasonable particularity
standard is the investigating officer’s affidavit, which avers only
that “it is reasonable to believe” that a co-defendant had
“communicated with Pollard via cell phone” leading up to and on
the day the robbery occurred. The basis for this belief is that
because the co-defendant had sent text messages to another person
involved in the robbery, it would be reasonable to believe that the
co-defendant must have communicated with Pollard in a similar
manner as well, even though no specific communication is
identified or alleged. As in G.A.Q.L., the evidentiary record is too
thin to conclude that the foregone conclusion exception applies. At
best, the officer believed that text messages likely existed on
Pollard’s phone because most criminal enterprises of this type
operate via coordinated electronic communications that would
leave a discoverable digital trail, but this generalized belief falls
short of the reasonable particularity standard. See Hubbell, 530
U.S. at 45 (government’s deficient identification of particular
documents sought cannot be cured by “the overbroad argument
that a businessman such as [Hubbell] will always possess general
business and tax records that fall within the broad categories
described in this subpoena.”).
In conclusion, we grant the writ of certiorari and quash the
trial court’s order.
PETITION GRANTED; ORDER QUASHED
JAY, J., concurs; WINOKUR, J., dissents with opinion.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
WINOKUR, J., dissenting.
The Fifth Amendment’s Self-Incrimination Clause, the
relevant provision here, “provides: ‘No person ... shall be compelled
in any criminal case to be a witness against himself’” and, at its
core, “is a prohibition on compelling a criminal defendant to testify
against himself at trial.” United States v. Patane, 542 U.S. 630, 637
(2004) (quoting amend. V, U.S. Const.). Upon compulsion, an “act
of producing evidence” that is incriminating could have
“communicative aspects” sufficient to implicate the Fifth
Amendment, but this is not the case when the evidence the state
seeks to compel production of is a “foregone conclusion” known by
the state, eliminating its testimonial worth. Fisher v. United
States, 425 U.S. 391, 410-11 (1976). In holding that the Fifth
Amendment bars the state from compelling an accused to produce
the password to his cell phone—where he does not dispute the
existence of the password or his knowledge of it—the majority
conflates Fifth Amendment jurisprudence with the protections
provided in the Fourth Amendment, 1 which is not at issue. I would
deny relief.
I.
Matthew Pollard was arrested and charged, along with co-
defendants, with armed robbery. The state proved to the trial court
1 “The Fourth Amendment protects ‘[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures,’” Carpenter v. United States,
138 S. Ct. 2206, 2213 (2018), and was purposed “to safeguard the
privacy and security of individuals against arbitrary invasions by
governmental officials,” id. (quoting Camara v. Mun. Court of City
& Cty. of San Francisco, 387 U.S. 523, 528 (1967)).
12
that Pollard participated in the robbery and provided the firearm,
and that he and the co-defendants planned the robbery through
text messages. The state sought a search warrant for Pollard’s
phone, asserting probable cause that the phone contained
incriminating evidence, which the trial court issued and Pollard
unsuccessfully challenged. After seizing Pollard’s phone, law
enforcement was unable to access its contents without his passcode
and the state filed a motion to compel him to produce it. Pollard
objected, arguing that production of the password could not be
severed from production of the data inside the phone (which is
what the state truly sought) and the state has not adequately
identified the data in the phone for the “foregone conclusion”
exception to apply. The trial court found that the phone belonged
to Pollard, he knew its passcode, and it could not be accessed
without the passcode—none of which was disputed—and granted
the motion to compel pursuant to State v. Stahl, 206 So. 3d 124(Fla. 2d DCA 2016). The trial court ordered Pollard to provide his
passcode, ruled that the state could not use his production of the
passcode as evidence at trial, and allowed the passcode he provided
to be sealed pending our review.
II.
The Fifth Amendment “applies only when the accused is
compelled to make a Testimonial Communication that is
incriminating.” Fisher, 425 U.S. at 408; see also Doe v. United
States, 487 U.S. 201, 207 (1988) (finding that compliance would be
compelled and incriminating, thus the only question is whether it
would be a “testimonial communication”). Here, the parties do not
dispute that disclosure of the passcode is being compelled or that
it would be incriminating. The question at issue is whether
Pollard’s act of producing his password is a testimonial
communication.
Testimonial Communication
“[I]n order to be testimonial, an accused’s communication
must itself, explicitly or implicitly, relate a factual assertion or
disclose information.” Doe, 487 U.S. at 210. For this reason,
compelled acts that do not require an accused to disclose his
knowledge—such as furnishing a blood sample, providing a voice
or handwriting exemplar, or standing in a lineup—are not
13
testimonial and are not protected by the Fifth Amendment. Id. at
210-11 (collecting cases). Whether a particular compelled
communication is testimonial “depend[s] on the facts and
circumstances” of the particular case. Fisher, 425 U.S. at 410.
The Fourth District in G.A.Q.L. v. State, 257 So. 3d 1058,
1061-62 (Fla. 4th DCA 2018), found that disclosing a password “is
testimonial and can violate the Fifth Amendment privilege against
compelled self-incrimination” because the “very act of revealing a
password asserts a fact: that the defendant knows the password.”
But see Stahl, 206 So. 3d at 133-34 (finding that disclosure of the
password was not testimonial because the password was not itself
significant or an acknowledgment of the incriminating evidence
found on the phone). Generally, I agree that when an accused
provides a passcode to a cell phone, he engages “in a testimonial
act utilizing the ‘contents of his mind’ and demonstrating as a
factual matter that he knows how to access the phone.” G.A.Q.L.,
257 So. 3d at 1062. Pollard’s production of his password is
testimonial in that it shows that he has control over the phone and
can access its contents, an incriminating fact if the phone contains
plans for committing an armed robbery.
Foregone Conclusion
While production of the password may generally be
testimonial, the Fifth Amendment may not bar compulsion if the
state already knows of the testimonial aspect of the
communication. In Fisher, the Supreme Court considered whether
compelled production implicated the Fifth Amendment. Even if the
act of production would include testimonial self-incrimination, the
Court held that compelled production was permissible because the
existence and location of the evidence was known to the
Government, or was a “foregone conclusion.” 425 U.S. at 411.
“Under these circumstances by enforcement of the summons ‘no
constitutional rights are touched. The question is not of testimony
but of surrender.’” Id. (quoting In re Harris, 221 U.S. 274, 279
(1911)).
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,
14
it already knew of the materials sought, thereby making
any testimonial aspect a foregone conclusion.
G.A.Q.L., 257 So. 3d at 1063.; see also United States v. Apple
MacPro Computer, 851 F.3d 238, 247 (3d Cir. 2017), cert. denied
sub nom. Doe v. United States, 138 S. Ct. 1988 (2018) (“[T]he Fifth
Amendment does not protect an act of production when any
potentially testimonial component of the act of production—such
as the existence, custody, and authenticity of evidence—is a
‘foregone conclusion’ that ‘adds little or nothing to the sum total of
the Government's information.’” (quoting Fisher, 425 U.S. at 411)).
In contrast, compelling the production of incriminating evidence
(which implicitly admits existence and possession) violated the
Fifth Amendment where the state’s demand was akin to a
“detailed written interrogatory or a series of oral questions at a
discovery deposition,” characterized “as a ‘fishing expedition.’”
United States v. Hubbell, 530 U.S. 27, 36, 41-42 (2000).
Here, the state’s only demand of Pollard is to produce his
passcode. The state is not asking him to recover or retrieve any
files that might exist on his phone. Because production of the
passcode is the only communication the state seeks, this is where
the analysis must be focused. See Stahl, 206 So. 3d at 136 (holding
that the relevant question is whether the state “has established
that it knows with reasonable particularity that the passcode
exists, is within the accused’s possession or control, and is
authentic”); Apple MacPro Computer, 851 F.3d at 248 n.7 (“[A] very
sound argument can be made that the foregone conclusion doctrine
properly focuses on whether the Government already knows the
testimony that is implicit in the act of production. In this case, the
fact known to the government that is implicit in the act of
providing the password for the devices is ‘I, John Doe, know the
password for these devices.’”); State v. Johnson, No. WD80945,
2019 WL 1028462, at *14 (Mo. Ct. App. Mar. 5, 2019) (“The focus
of the foregone conclusion exception is the extent of the State’s
knowledge of the existence of the facts conveyed through the
compelled act of production. Here, Johnson was ordered to produce
the passcode to his phone. The facts conveyed through his act of
producing the passcode were the existence of the passcode, his
possession and control of the phone’s passcode, and the passcode’s
authenticity.”).
15
Before the trial court, the state proved—and Pollard
conceded—that the phone belonged to Pollard, that he had control
over it, and that he knew the passcode to unlock it. Thus, the facts
making this communication implicitly “testimonial” are not in
dispute, but are a foregone conclusion. 2 See Com. v. Gelfgatt, 11
N.E.3d 605, 615 (Mass. 2014) (“The facts that would be conveyed
by the defendant through his act of decryption—his ownership and
control of the computers and their contents, knowledge of the fact
of encryption, and knowledge of the encryption key—already are
known to the government and, thus, are a ‘foregone conclusion.’”). 3
2 Unlike compelling one to produce documents, requiring
someone to produce a passcode to unlock a cell phone does not
implicate a question of authenticity. See State v. Stahl, 206 So. 3d
124, 136 (Fla. 2d DCA 2016) (“[W]e must recognize that the
technology is self-authenticating—no other means of
authentication may exist. If the phone or computer is accessible
once the passcode or key has been entered, the passcode or key is
authentic.” (citation omitted)); Com. v. Gelfgatt, 11 N.E.3d 605, 616
n.14 (Mass. 2014) (“Here, the defendant’s decryption of his
computers does not present an authentication issue analogous to
that arising from a subpoena for specific documents because he is
not selecting documents and producing them, but merely entering
a password into encryption software.”).
3 See also State v. Andrews, 197 A.3d 200, 207 (N.J. Super. Ct.
App. Div. 2018), leave to appeal granted, No. 082209, 2019 WL
2011594 (N.J. May 3, 2019) (“[D]efendant’s Fifth Amendment right
against self-incrimination is not violated by requiring him to
disclose the passcodes for his iPhones, which the State lawfully
possessed. The act of producing the passcodes has testimonial
aspects because defendant is acknowledging ownership,
possession, and control of the devices. He is also acknowledging he
has the ability to access the contents of the phone. However, by
producing the passcodes, defendant is not implicitly conveying any
information the State does not already possess. Defendant is not
telling the government something it does not already know.
Therefore, the implicit facts conveyed by the act of producing the
passcodes is a ‘foregone conclusion’ and compelled disclosure of the
passcodes does not violate defendant’s Fifth Amendment right
against self-incrimination.”); Commonwealth v. Davis, 176 A.3d
16The question is not whether Pollard knows the password, but
whether he must surrender it, see Fisher, 425 U.S. at 411, so the
Fifth Amendment’s protection against self-incrimination does not
apply.
III.
G.A.Q.L. focused on the contents of the phone when
determining whether the testimony is a foregone conclusion. 257
So. 3d at 1063 (“[T]he object of the foregone conclusion exception is
not the password itself, but the data the state seeks behind the
passcode wall.”). The majority now follows suit. 4 In this view, “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” because “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
869, 876 (Pa. Super. Ct. 2017), appeal granted, 195 A.3d 557 (Pa.
2018) (citing, inter alia, Apple MacPro Computer and Gelfgatt and
agreeing that the “appellant’s act of providing the password in
question is not testimonial in nature and his Fifth Amendment
right against self-incrimination would not be violated” where the
appellant admitted that he knew the password to the computer).
4 The majority asserts that the “password-centric approach”
“makes sense . . . where the state establishes that the testimonial
value of the compelled password has been abandoned, such as
where a defendant has voluntarily entered his passcode to access
his cellphone in the presence of law enforcement such that the
testimonial value of compelling the passcode’s production a second
time is negligible,” and such a situation “becomes predominantly a
Fourth Amendment issue, not a Fifth Amendment one[.]” Maj. op.
at 8-9. This distinction is without a difference as applied to this
case. If the analysis is properly focused on the accused’s knowledge
of the passcode when he has entered it in the presence of law
enforcement previously, there is no reason it should be centered
elsewhere when the accused simply admits that he knows it and
can enter it.
17
locked phone.” Id. at 1063-64. 5 Thus, G.A.Q.L. holds, the state
must identify with reasonable particularity the evidence on the
phone to compel an accused to produce his password. Id. at 1064.
It is true that the state does not seek the passcode for itself,
but as a means to access the files in the phone. This, however, does
not change what the accused is being compelled to produce. See,
e.g., State v. Andrews, 197 A.3d 200, 205 (N.J. Super. Ct. App. Div.
2018), leave to appeal granted, No. 082209, 2019 WL 2011594 (N.J.
May 3, 2019) (“Defendant argues the State is unaware of all of the
possible contents of defendant’s devices. This is immaterial
because the order requires defendant to disclose the passcodes, not
the contents of the phones unlocked by those passcodes.”). In no
other context does the foregone-conclusion analysis focus on
evidence other than the evidence being compelled, and there is no
reason to shift the focus now.
G.A.Q.L. is correct that the state must identify with
particularity the files on the phone it seeks. But when these files
are not what the state is compelling production of, the Fifth
Amendment is not implicated. The Fifth Amendment does not
“protect[] private information obtained without compelling self-
incriminating testimony[.]” Fisher, 425 U.S. at 400. “Insofar as
private information not obtained through compelled self-
incriminating testimony is legally protected, its protection stems
from other sources” such as “the Fourth Amendment’s protection
5 G.A.Q.L. drew on the analysis in In re Grand Jury Subpoena
Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1349 (11th
Cir. 2012), which found that the government failed to prove that it
“knew to any degree of particularity what, if anything, was hidden
behind the encrypted wall.” However, the Eleventh Circuit also
found that the government did not show “any basis, let alone
shown a basis with reasonable particularity, for its belief that
encrypted files exist on the drives, that [the accused] has access to
those files, or that he is capable of decrypting the files.” Id. In
contrast, the state here had probable cause that the phone
contained incriminating text messages, from which it obtained a
warrant to seize the phone, and showed that the phone belonged
to Pollard and that he knew the passcode to unlock it.
18
against seizures without warrant or probable cause,” the First
Amendment’s protection against being compelled to disclose who
you associate with, “or evidentiary privileges such as the attorney-
client privilege.” Id. at 401.
The state’s obligation to describe with particularity the files it
seeks is required because the “Fourth Amendment by its terms
requires particularity in the [search] warrant[.]” Groh v. Ramirez,
540 U.S. 551, 557 (2004); see also Massachusetts v. Sheppard, 468
U.S. 981, 988 n.5 (1984) (“The uniformly applied rule is that a
search conducted pursuant to a warrant that fails to conform to
the particularity requirement of the Fourth Amendment is
unconstitutional.”). Here, as in G.A.Q.L., the validity of the search
warrant and the Fourth Amendment are not at issue.
The Fourth Amendment protected Pollard’s phone from
search and seizure until a search warrant issued. Whether Pollard
must produce the passcode to his phone—enabling the state to
search and seize what is already entitled to—depends on whether
that compelled act is testimonial and self-incriminating. Here, the
only testimonial aspect of the production—Pollard’s ownership and
control of the phone—is undisputed and a foregone conclusion. The
Fifth Amendment, contrary to the analysis of the majority and the
Fourth District in G.A.Q.L., does not provide any further quasi-
Fourth-Amendment protections where the state is not compelling
production of the phone or data on it and the state possesses a valid
search warrant for the phone. 6 See United States v. Spencer, No.
17-Cr-00259-CRB-1, 2018 WL 1964588, at *3 (N.D. Cal. Apr. 26,
6 The Supreme Court explained the issue of privacy in relation
to the Fourth and Fifth Amendments in Fisher, 425 U.S. at 400:
The Framers addressed the subject of personal
privacy directly in the Fourth Amendment. They struck
a balance so that when the State’s reason to believe
incriminating evidence will be found becomes sufficiently
great, the invasion of privacy becomes justified and a
warrant to search and seize will issue. They did not seek
in still another Amendment the Fifth to achieve a general
protection of privacy but to deal with the more specific
issue of compelled self-incrimination.
19
2018) (“To the extent Spencer contends that the government has
not adequately identified the files it seeks” in the devices it
compelled him to decrypt, “that is an issue properly raised under
the Fourth Amendment, not the Fifth.”). 7
IV.
In this case, we do not need to determine whether the state
can sufficiently describe the evidence it seeks on the phone because
the state has not compelled Pollard to produce that evidence and
the Fourth Amendment is not at issue. Pollard argues that he may
not be compelled to produce the passcode to his cell phone due to
the Fifth Amendment’s Self-Incrimination Clause, but this
argument fails where the testimonial component of the
communication is undisputed. I would deny Pollard’s petition for
writ of certiorari.
_____________________________
Stacy A. Scott, Public Defender, and Logan P. Doll, Assistant
Public Defender, Gainesville, for Petitioner.
Ashley Moody, Attorney General, and Benjamin L. Hoffman,
Assistant Attorney General, Tallahassee, for Respondent.
7 We need not decide whether the state may compel an accused
to disclose his passcode orally or in writing. Several authorities
have distinguished whether the state may “compel the defendant
to disclose -- whether orally or in writing -- the actual password, as
opposed to cases requiring merely physically entering it into the
device.” Commonwealth v. Jones, 117 N.E.3d 702, 710 n.9 (Mass.
2019); see also G.A.Q.L., 257 So. at 1061-62 (Kuntz, J., concurring
in result) (concluding “that the foregone conclusion doctrine cannot
apply to compelled oral testimony”). Here, Pollard does not
distinguish between the act of entering the passcode and
disclosure of the passcode orally or in writing. Instead, he argues
that the passcode and phone data are so intertwined that the
proper inquiry concerns the state’s knowledge of the data on the
phone. As stated above, I disagree with this position.
20