G.A.Q.L., A MINOR v. STATE OF FLORIDA

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
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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
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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
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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.
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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-
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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.”).
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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
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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
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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.
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