The Florida Court of Appeals for the Fourth District (4th DCA) reversed a trial court order which compelled a minor to disclose the passwords to open his iPhone and iTunes account, holding that “compelling disclosure of the iPhone passcode and iTunes password violated his rights under the Fifth Amendment to the United States Constitution.” G.A.Q.L. v. State of Florida, Case No. 4018-1811 (4th DCA, Oct. 24, 2018) (Full Case Opinion Available Here).
The State of Florida sought to prosecute a minor who, with 0.086 blood alcohol, crashed his speeding car and killed the passenger. With a search warrant for the vehicle, the police located two iPhones. 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. Defendant refused to disclose the two passwords which stand in the way of the state accessing the contents of the phone alleged to belong to a minor. The state sought, and the trial court agreed, to compel the minor to provide two passwords, finding that “the act of producing the pass[words] is not testimonial because the existence, custody, and authenticity of the pass[words] are a foregone conclusion.”
The Appeals Court disagreed with the trial court and stated: “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, one for the iPhone itself and a second for iTunes.”
The state argued that the phone could not be searched before receiving a software update from Apple’s iTunes service to update the operating system. Thus, the state needed both the passcode to access the phone and the iTunes password to update it.
The surviving passenger provided a sworn statement that on the day of the crash and in the days following, she had communicated with the minor via text and Snapchat. The passenger told police that she and the minor had been consuming alcoholic beverages the day of the crash.
“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).” Opn. pg. 3.
Justice Stevens’ dissent in the Doe v. United States opined that although a defendant may be compelled to turn over a key to a safebox, he could not be compelled to reveal the combination of the safe. 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 to a wall safe or revealing a combination to the safe. See, e.g., State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016)(compelled production of passcode); In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir. 2012); (denied production).
In the present case, the Appeals Court stated: “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.’” Opn. pg. 5.
