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How the Fifth Amendment Addresses Giving Up Your Phone Passcode in Florida Criminal Investigations

Can you be required to give up the passcode to your phone in the course of a Broward County criminal investigation? A recent Florida appellate decision considered a case in which the government and the trial court agreed to compel a minor to give them two passcodes for his phone.

The lower court had determined that requiring him to provide passcodes was not testimonial since the authenticity, custody and existence of those passcodes was a foregone conclusion. The appellate court disagreed, explaining that the minor was being required to disclose his own mind’s contents in providing the passcode, as well as the password for his iTunes account.

The case arose when a minor was speeding and crashed. Passengers in his vehicle died as a result. The police performed a blood test that found his blood alcohol content was .086. The police obtained a search warrant and found two iPhones, one of which belonged to the passenger who survived. She told the cops that the whole group was drinking vodka earlier and she’d been talking to the minor on her iPhone. The other phone was believed to be the minor’s. The police sought and obtained a warrant to look through the phone for information. They also asked for an order compelling the minor to give them the passcode for the phone and the iTunes account.

The government’s motion identified the phone and asked the court to compel production of the passcode. The second motion asked for the iTunes password so that they could get a software update from iTunes. At the motion hearing, the government mentioned that the passenger who had survived had sworn she’d talked to the minor through text and Snapchat on the day of the accident and afterward. The police wanted the passcodes to get those communications.

The minor argued that requiring him to provide the passcode and password would violate his Fifth Amendment rights. The lower court disagreed, determining that the passcodes weren’t testimonial in and of themselves, and would simply enable access to the phone. The motions were granted. The minor petitioned for a writ to quash that order.

The appellate court explained that the Fifth Amendment, which protected someone from being compelled to be a witness against himself, governed the case. It prohibited compelled production of incriminating testimonial communications.

To be considered testimonial the communication had to relate facts or disclose information. Only then would someone be compelled to be a witness against himself or herself. It explained that case law has struggled with whether requiring someone to provide a password is like surrendering a key or giving a combination, with the latter being testimonial. Case law has determined that requiring someone to reveal a password is more than a physical act and instead looks into the contents of someone’s mind, thereby involving the Fifth Amendment. When revealing a password, a fact is asserted.

The appellate court reasoned that the government in this case wanted to access the communications protected by passcode. The minor’s revealing of the passcode would be engagement in a testimonial act that used the contents of his mind and showing as a factual matter he could access the phone.

The appellate court further reasoned that an act of production isn’t a Fifth Amendment violation if the state can prove that it already knew about the material they were trying to obtain, which would make the testimonial act a foregone conclusion. However, the data in this case was unknown, hidden behind the passcode shield. Accordingly, the minor’s petition was granted and the lower court’s order was quashed.

If you are charged with a DUI involving homicide in Broward County, your strongest defense may involve your constitutional rights. It is crucial to pay attention as best as you can during an arrest and investigation, and retain an experienced criminal defense attorney. Call The Hoffman Law Firm at (305) 249-0090 or (800) 223-1866, or contact us via our online form.

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