Does the Fifth Amendment privilege against self-incrimination prevent a court from ordering a criminal defendant to hand over the passcode to his smartphone?
According to a Florida appellate court (coincidentally, the fifth appellate district), the answer is yes.
Jonathan Garcia is the defendant in a criminal case in which he allegedly broke a window at the home of the new boyfriend of his ex-girlfriend, Ana Diaz. When police arrived at the house to investigate, they found a Samsung Galaxy Note 8 smartphone, approximately 4 feet from the broken window.
Diaz identified the phone as belonging to Garcia and confirmed this fact for the investigating officers by calling Garcia’s phone number. The Samsung phone in question began to ring, and Diaz’s name and phone number were displayed on the phone screen. The police retained the phone as potential evidence.
About two months later, Diaz discovered that a GPS tracker had been placed on her car.
Garcia was eventually charged with throwing a deadly missile at, within or into a building; two counts of aggravated stalking; criminal mischief with damage of more than $200 pertaining to the broken window; and a separate count for criminal mischief for damage to Diaz’s car tires that the officers had discovered during their initial investigation.
Following Garcia’s arrest, law enforcement applied to the court for a search warrant to search his smartphone seized at the crime scene. The affidavit filed in support of the warrant asserted there was probable cause that Garcia’s phone contained evidentiary data regarding the aggravated stalking charges, and sought “contact/phone lists, call logs, SMS messages, MMS messages, and/or graphic or video files and/or other relevant data which are stored within the phone device.” A circuit judge issued the requested search warrant.
Because Garcia’s smartphone was passcode protected, law enforcement was unable to unlock the phone to conduct the search. The state then moved to compel Garcia to provide the passcode.
Garcia argued the disclosure of the passcode would be a “testimonial communication.” Compelled disclosure of the passcode would thus violate Garcia’s Fifth Amendment privilege against self-incrimination.
The state countered that the disclosure of Garcia’s passcode would not violate the Fifth Amendment because it was not a testimonial communication.
The trial court granted the state’s motion. It found that providing the passcode was nontestimonial.
The appellate court disagreed. The trial court had relied on a previous appellate decision that held disclosure of the passcode was not testimonial because it was sought only for its content, and “the content has no other value or significance.”
But the appellate court in the Garcia case ruled that “the revealing of the passcode is a verbal communication of the contents of one’s mind.” In its view, “[a]s a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind.” That means that the state was requiring Garcia to “utilize the contents of his mind and disclose specific information regarding the passcode that will likely lead to incriminating information that the State will then use against him at trial.”
That sounds like what the Fifth Amendment is supposed to prevent.
The Garcia court recognized that its decision set up a conflict with the previous appellate decision, so it asked the Florida Supreme Court to take the case and issue a ruling settling the issue. Which means that this is not the final chapter. So hold the phone.
Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.
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