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Is a Phone Passcode Testimony or a “Key?”


Access to information on cellphones is a complex and developing area of law and court rulings often depend on the specific facts of a case

Or does it not make any difference? At least for three judges of a Florida District Court of Appeals, it may not make any difference. The case involved a man charged with voyeurism. In particular, he was accused of using a cellphone to make video or take pictures up a woman’s skirt in a store. She caught him and he was later arrested.

The police wanted the passcode for his phone, presumably to look for the photos or video. He had first consented to give the phone to the police but later withdrew his consent to their search.

Perhaps he spoke with his attorney, which led him to change his mind. As a side note, anytime you are in jeopardy of being interrogated about an alleged crime or charged with a crime, you should immediately ask for an attorney and end any interrogation by the police.

No matter how clever you are or how innocent you believe yourself to be, the police may have other ideas, and everything you say is at risk of becoming the raw material a prosecutor uses to destroy your credibility during a criminal case.

Search warrant

In this case, the police then obtained a search warrant for the contents of his cellphone. He refused to provide the passcode, and Florida prosecutors moved to compel production of the passcode. The district court, in a case of first impression, found forcing him to reveal the passcode violated the Fifth Amendment privilege against self-incrimination.

This is notable because the Florida state court had to look to cases from other jurisdictions for cases involving this topic because there were no Florida cases dealing with this matter. The recent explosion of the number of people who possess cellphones and the amount of information stored on “smartphones” is likely to lead to much litigation over questions involving what law enforcement may access and the requirements for that access in the coming years.

Fifth Amendment

The Fifth Amendment privilege against self-incrimination protects an individual from testifying against themselves in criminal proceedings. It can apply to documents in some cases. In this case, the question for the District Court of Appeals was whether producing the passcode was “testimonial” and therefore was protected by the Fifth Amendment.

The key here is whether the production of the passcode itself provides testimonial information. Because the phone may not have any evidence of the alleged upskirt photos, as the accused could have deleted them or was innocent and had not taken any, the simple act of unlocking the phone does not provide evidence of guilt. It merely demonstrates that he had access to the phone.

Foregone conclusion exception

The state claimed the “foregone conclusion doctrine” applied. This doctrine is used when the state knows the location, existence, and authenticity of the requested information with reasonable particularity and that this renders discovery of it a “foregone conclusion.”

In this case, it is important to remember that the state had a warrant for the contents of the phone. The arguments were focused on the passcode itself, not the purported photos that might exist on the phone.

The court of appeal found the passcode is not testimonial in the way that the alleged photos or video would be. It also found that the passcode must exist in order for the phone to be used and that the accused likely knew the passcode because of his use pattern of the phone.

The court concluded that production of the passcode was a case of surrender, as in providing a physical blood sample and not testimony. Florida courts have ruled that defendants can be compelled to produce physical objects like keys, fingerprints and blood.

What are your facts?

It is important to note that these cases often turn on the particular facts and circumstances. Given the lack of cases interpreting these issues, if you face a similar issue, you want an attorney who can provide compelling arguments to the court based on your facts. This case is only binding on lower courts of the Second District Court of Appeal, which is made up of many counties of southwest Florida, though it is potentially persuasive for the other DCAs throughout the state.

Many issues involving criminal charges, cellphones and privacy rights of the Fourth and Fifth Amendments have yet to be decided. If your case could break new ground, you want experienced criminal defense attorneys like those at O’Brien Hatfield, P.A. by your side to bring those arguments to court.