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Pollard v. State

Florida Court of Appeals, First District

December 23, 2019

Matthew Tyler Pollard, Petitioner,
v.
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, Benjamin L. Hoffman, Assistant Attorney General, Edward Wenger, Chief Deputy Solicitor General, and Christopher Baum, Deputy Solicitor General, Tallahassee, for Respondent.

         On Motion for Rehearing and Certification

          MAKAR, J.

         The State has filed a motion for rehearing and certification, which we grant in part by certifying the following questions of great public importance:

What is the proper legal inquiry when the State seeks to compel a suspect to provide a password to the suspect's cellphone if the suspect has not previously given up his Fifth Amendment privilege in the password? What legal standard applies in determining whether the foregone conclusion applies to compelled production of passwords in these situations?

         The State's motion for rehearing is narrow and limited solely to our jurisdiction in this case and seeks no substantive changes on the merits of the constitutional issue. Concluding that jurisdiction exists, we deny the motion.

         The State's motion for certification of conflict does not ask for any substantive changes to our opinion either. It urges, instead, that our opinion conflicts with the decision in State v. Stahl, 206 So.3d 124 (Fla. 2d DCA 2016), because it adopted the approach in G.A.Q.L. v. State, 257 So.3d 1058, 1062 (Fla. 4th DCA 2018), a case that disagreed with Stahl but neither certified conflict nor a question of great public importance. Certification presents a close question, but the factual differences in those cases and this case, such as whether a defendant has given up his testimonial privilege, make them distinguishable such that no direct conflict exists within the meaning of article V, section 3(b)(4), Florida Constitution. We therefore deny the motion for certification of conflict. That said, the proper approach to analyzing compelled password production needs clarification, which is why a question of great public importance has been certified.

         Despite the narrow focus of the State's motion, our dissenting colleague presents many pages of arguments-old and new-that amount to a second opinion on the merits. Tellingly, our colleague's almost exclusive focus is on the Fourth Amendment and probable cause despite no party mentioning either of them in their merits briefs and the State advancing no argument on such matters in its motion for rehearing and certification. And whether the probable cause affidavit (which sought to seize broad categories of information from the cellphone-without identifying any specific item-on the basis that criminals use cellphones) was proper or a fishing expedition matters not; we fail to see how the issuance of a subpoena or warrant-whether careful drawn or a fishing expedition-negates the Fifth Amendment's protections, which are the focus of this case.

         If anything, the relationship that exists between the Fifth Amendment right against compelled personal disclosures and its neighboring and complementary Fourth Amendment right against unreasonable searches and seizures counsels in favor of protection against governmental overreach into individual autonomy in criminal cases. Leonard W. Levy, Origins of the Fifth Amendment 431 (1968) ("With good reason the Bill of Rights showed a preoccupation with the subject of criminal justice. The framers understood that without fair and regularized procedures to protect the criminally accused, there could be no liberty."). As expressed in our original opinion, the expansion of governmental powers to compel disclosures of personally-held information to search person's homes and personal effects, as reflected in Stahl and our dissenting colleague's view, is the antipode of the original understanding of the Fifth Amendment, which protected individual freedom by prohibiting compelled disclosures used to incriminate an accused. See Donald Dripps, Self-Incrimination, in The Heritage Guide to the Constitution 437-439 (David F. Forte & Matthew Spalding eds., 2d ed. 2014); see also Levy, at 432 ("Above all, the Fifth Amendment reflected [the framers'] judgment that in a free society, based on respect for the individual, the determination of guilt or innocence by just procedures, in which the accused made no unwilling contribution to his conviction, was more important than punishing the guilty.") (emphasis added). At its core, the debate in Stahl, G.A.Q.L., and this case is about which vision of the right against compelled testimony prevails: those of the Founders who erred on the side of personal liberty or those who defend state powers to extract testimony and see no problem in "merely compel[ling a defendant] to unlock [a] phone by entering the passcode himself."

          Jay, J., concurs; Winokur, J., concurs in part and dissents ...


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