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Pollard v. State

Florida Court of Appeals, First District

June 20, 2019

Matthew Tyler Pollard, Petitioner,
State of Florida, Respondent.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          Petition for Writ of Prohibition-Original Jurisdiction.

          Stacy A. Scott, Public Defender, and Logan P. Doll, Assistant Public Defender, Gainesville, for Petitioner.

          Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Respondent.

          Makar, J.

         To what extent does the Fifth Amendment right against self-incrimination protect a suspect in a criminal case from the compelled disclosure of a password to an electronic communications device in the state's possession? Courts differ in their legal analysis of this question, resulting in no consensus in state and federal courts; indeed, different approaches currently exist between two Florida appellate courts on the topic. In this case, we conclude that the proper legal inquiry on the facts presented is whether the state is seeking to compel a suspect to provide a password that would allow access to information the state knows is on the suspect's cellphone and has described with reasonable particularity.

         Matthew Tyler Pollard was arrested and charged with armed robbery of two victims who were misled into believing they were buying drugs. Pursuant to a warrant, the state seized an iPhone®from Pollard's car and filed a motion to compel Pollard to disclose the phone's passcode so that it could access broad categories of encrypted information on the cellphone. The information sought was described in general terms and broad categories in the investigating detective's affidavit in support of the search warrant:

• Call/text/communication history on and between June 19, 2018 and June 25, 2018.
• Content of communications on and between June 19, 2018 and June 25, 2018.
• Picture(s) of narcotics, money, firearms.
• Written information about the illegal purchase, possession, and sale of illegal narcotics, and or plans of a robbery on and between June 19, 2018 and June 25, 2018.
• Activity listed in phone applications: Facebook, Facebook Messenger, etc., concerning buying, selling, or possessing illegal narcotics and or planning a robbery on and between June 19, 2018 and June 25, 2018.

         The affidavit did not state the existence or content of any specific text, picture, call or other particular information. It noted, however, that "it was reasonable to believe" that a co-defendant, Draven Rouse, had "communicated with Pollard via cell phone" both prior to and on the day of the robbery, presumably to coordinate the robbery. Based on his training and experience, the detective stated that persons in "criminal enterprises" sometimes use cellphones to communicate and coordinate activities with accomplices, to document criminal activities, and to compile contacts useful in a criminal investigation; he did not, however, identify any specific item that was on Pollard's cellphone, only that the state wished to seize from the cellphone all items in the categories of information listed above.

         Accessing the cellphone's content required a passcode, which the state in a one-page motion sought to compel from Pollard. The state's motion-and the trial court's favorable ruling-relied exclusively on State v. Stahl, 206 So.3d 124 (Fla. 2d DCA 2016), which upheld the compelled production of a cellphone's passcode over a defendant's Fifth Amendment objection that doing so violated his right not to testify as to the "contents of his mind," i.e., knowledge of the passcode itself. The trial court relied on Stahl, even though it arose in another district and (as discussed later) involved different facts, because no other Florida court had weighed in on the general topic at that time. Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) ("in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.").

         Based on Stahl, the trial court held the state established that the cellphone was Pollard's, that it was password protected, and that if the password compelled from Pollard made the cellphone's content accessible, the password was deemed authentic, thereby requiring Pollard to provide the password. Quoting Stahl, the trial court also noted that the state had established by independent means the "'existence, possession, and authenticity of the documents' it seeks to recover from [Pollard's] phone." 206 So.3d at 135. It concluded that the "State already knows the information it is seeking [Pollard] to produce and why." The trial court did not identify any specific documents or information in this regard, but noted that "at [a] minimum, text messages" were part of the coordinated effort to conduct the robbery. No limits were placed on the scope of the search of the contents of the cellphone, but the state was prohibited from using the compelled production of Pollard's password as evidence at trial; no limitation was put on use of the documents and information that might be discovered. The password was placed in a sealed and confidential file pending resolution of Pollard's petition for writ of prohibition, which seeks to prevent the compelled use of the embargoed password. We treat the petition as a petition for writ of certiorari, which requires a departure from the essential requirements of the law that results in material injury that cannot be corrected post-judgment. Art. V, § 4(b)(3), Fla. Const. (2019); Stahl, 206 So.3d at 129; Grant v. State, 832 So.2d 770, 771 (Fla. 5th DCA 2002).

         Courts nationwide are struggling to find common legal ground on the constitutionality of compelled password production under the Fifth Amendment and its application in specific cases. U.S. Const. amend. V. ("No person . . . shall be compelled in any criminal case to be a witness against himself"); see also Art. I, § 9, Fla. Const. (2019) (same); see generally Marjorie A. Shields, Fifth Amendment Privilege Against Self-Incrimination as Applied to Compelled Disclosure of Password or Production of Otherwise Encrypted Electronically Stored Data, 84 A.L.R. 6th 251 (2019) (compiling Fifth Amendment cases involving "compelled disclosure of an individual's password, means of decryption, or unencrypted copy of electronically stored data.").

         The Fifth Amendment forbids a governmentally-compelled testimonial communication (or act) that tends to incriminate the communicator (or actor). In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1341 (11th Cir. 2012). "The touchstone of whether an act of production is testimonial is whether the government compels the individual to use 'the contents of his own mind' to explicitly or implicitly communicate some statement of fact. Id. at 1345 (quoting Curcio v. United States, 354 U.S. 118, 128 (1957)) Forcing a defendant to disclose a password, whether by speaking it, writing it down, or physically entering it into a cellphone, compels information from that person's mind and thereby falls within the core of what constitutes a testimonial disclosure In this case, Pollard was compelled to act in a testimonial manner by disclosing a password known only in his mind In this type of password compulsion case, the law is unsettled as to whether a "foregone conclusion" exception might apply, ie, where the government knows that identifiable documents exist under a defendant's control such that obtaining them via a compelled disclosure of a password is a mere formality and thereby non-testimonial The Supreme Court has approved the exception's use but not in the context of a compelled passcode disclosure See GAQL, 257 So.3d at 1066 (Fla 4th DCA 2018) ("The Supreme Court has applied the foregone conclusion exception only when the compelled testimony has consisted of existing evidence such as documents") (Kuntz, J, concurring in result).

         Florida is no exception in the national judicial debate over compelled password production. Since the trial court's ruling, the Fourth District issued its opinion in G.A.Q.L. v. State, 257 So.3d 1058, 1062 (Fla. 4th DCA 2018), which seemingly conflicts with the approach taken in Stahl as to the foregone conclusion exception and allows compelled production of information where the testimonial value of doing so is negligible. As a result, two different analytical methods currently exist in Florida, though both apply the same two-step framework, which asks (a) is the compelled production of the password a testimonial and potentially incriminating act, and, if so, (b) is the compelled password production nonetheless permissible under the foregone conclusion exception because its testimonial value is inconsequential due to the state already knowing of the existence of the requested information. Id. at 1063 ("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."); Stahl, 206 So.3d at 135 ("That is, by implicitly admitting the existence of the evidence requested and that it is in the accused's possession the accused 'adds little or nothing to the sum total of the Government's information'; the information provided is a foregone conclusion.") (quoting Fisher v. United States, 425 U.S. 391, 411 (1976) ("The existence and location of the [tax-preparation] papers are a foregone conclusion" such that taxpayer's compelled production of them "adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers. Under these circumstances by enforcement of the summons 'no constitutional rights are touched. The question is not of testimony but of surrender.'")) (citation omitted); see generally Fern L. Kletter, Construction and Application of "Foregone Conclusion" Exception to Fifth Amendment Privilege against Self-Incrimination, 25 A.L.R. Fed. 3d Art. 10 (2017) (compiling cases that discuss the foregone conclusion exception).

         For example, if the central feature in a criminal case is what files are on a cellphone, and the state can establish that a defendant's cellphone contains files that are described with "reasonable particularity," the compelled production of the password to access those files (but only those files) does no damage to the defendant's constitutional right against self-incrimination where sufficient evidence establishes that it is his phone on which the files reside. In contrast, if a central feature of a criminal case is who owns a seized cellphone or has the code to access it, compelling a defendant to provide a password may be testimonial and incriminating because it proves an unknown fact, i.e., who is the cellphone's owner or who can access it. For instance, if an employee was alleged to have broken into a password protected computer system, and caused cyber-harm therein, evidence as to his ability to access the system (i.e., possession of the password) would be incriminating because it supports the ability to access the system.

         In Stahl, a video voyeurism case, the defendant used a cellphone to take video under a customer's skirt, was identified via store surveillance video, and arrested. After his locked cellphone was produced pursuant to a search warrant, he admitted it was his cellphone and initially agreed to permit police to search it for images, but he changed his mind, resulting in the state's request to compel its password. Under those circumstances, the Second District concluded that compulsion of the passcode was not a Fifth Amendment violation under the foregone conclusion exception. The three-part test for the foregone conclusion exception requires that the state "must show with reasonable particularity that, at the time it sought the act of production, it already knew the evidence sought existed, the evidence was in the possession of the accused, and the evidence was authentic." Stahl, 206 So.3d at 135 (citing In re Grand Jury Subpoena, 670 F.3d at 1344 ("Where the location, ...

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