Can the police force you to give up the Password to your phone?


Can Police Force You to Give Up iPhone Password?

“we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones “


A court in Florida just ruled that a defendant could be forced to provide the password to his iPhone. A distinction is important – they got a search warrant. Without a warrant, the case may have been decided in favor of protecting the phone owner’s privacy. The phone had a cracked screen and had been allegedly used to take photographs that would have been useful in the prosecution of the phone’s owner. You can review a typical  iPhone Search Warrant here. At the bottom of this article are numerous other articles we have written on this topic.

Right to Remain Silent


Usually, we think that we have a right not to incriminate ourselves. However, this Florida Court in the Tampa Bay area ruled that providing the password did not constitute testimony against one’s self. In a convoluted 19-page ruling the court found that while there may be evidence of a crime, providing the passcode was not testimonial.

Here are some excerpts from the iPhone Court’s ruling.

“That an accused may be “forced to surrender a key to a strongbox containing incriminating documents,” but he cannot “be compelled to reveal the combination to his wall safe,” Doe, 487 U.S. at 219 (Stevens, J., dissenting), is another often repeated quote. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 210 n.9; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. Despite the many cases referencing the quote, we have found none that provide details of “surrender[ing] a key.” We question whether identifying the key which will open the strongbox—such that the key is surrendered—is, in fact, distinct from telling an officer the combination. More importantly, we question the continuing viability of any distinction as technology advances. See Fisher, 425 U.S. at 407 (“Several of Boyd[ v. United States, 116 U.S. 616 (1886)]’s express or implicit declarations have not stood the test of time.”). In that respect, we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number . . . . ”

“In this case, the communication was sought only for its content and the content has no other value or significance.11 By providing the passcode, Stahl would not be acknowledging that the phone contains evidence of video voyeurism. See Doe, 487 U.S. at 215. Moreover, although the passcode would allow the State access to the phone, and therefore to a source of potential evidence, the State has a warrant to search the phone—the source of evidence had already been uncovered. See id. Providing the passcode does not “betray any knowledge [Stahl] may have about the circumstances of the offenses” for which he is charged. See id. at 219 (Stevens, J., dissenting). It does not implicitly “relate a factual assertion or disclose information.””

“The Fifth Amendment privilege against self-incrimination has been held to apply not only to verbal and written communications but also to the production of documents, usually in response to a subpoena or summons, because the act of production itself could communicate incriminatory statements. See Fisher, 425 U.S. at 410. The courts that have addressed the Fifth Amendment implications for providing decryption keys and passcodes have largely applied the act-of-production doctrine and the foregone conclusion exception. See, e.g., Sec. & Exch. Comm’n v. Huang, No. 15-269, 2015 WL 5611644, *1 (E.D. Penn. Sept. 23, 2015); United States v. Fricosu, 841 F. Supp. 2d 1232, 1235 (D. Col. 2012); In re Grand Jury Subpoena to Boucher (In re Boucher), 2:06-MJ-91, 2009 WL 424718, *2-3 (D. Vt. Feb. 19, 2009); Gelfgatt, 11 N.E.3d at 612; Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014). But see United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (concluding that providing the password was testimony protected by the privilege against self-incrimination).”

“Invoking the privilege still requires the accused to establish compulsion, a testimonial communication, and incrimination. And as we have said, in this case compulsion and incrimination are not at issue, leaving only the testimonial element. Testimonial elements of production include (1) the existence of the documents, (2) the accused’s possession or control of the documents, and (3) the authenticity of the documents. Hubbell, 530 U.S. at 36.”

” “The difficult question whether a compelled communication is testimonial for purposes of applying the Fifth Amendment often depends on the facts and circumstances of the particular case.” Doe, 487 U.S. at 214-15. Here, the trial court rested its determination that producing the passcode would be testimonial exclusively on the concept that production would require “the use of the contents” of Stahl’s mind. The phrase “the contents of the accused’s mind” has often been repeated in cases discussing the privilege. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 211; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. And although the trial court correctly quoted the Eleventh Circuit’s statement in In re Grand Jury, that “[t]he 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,” 670 F.3d at 1345, the trial court did not consider the law as stated in Hubbell and Doe—that the contents of the accused’s mind must be “extensive[ly] use[d]” in creating the response, Hubbell, 530 U.S. at 43, or must “relat[e] him to the offense,” Doe, 487 U.S. at 2013.10 That is, “it is not enough that the compelled communication is sought for its content. The content itself must have testimonial significance.” Doe, 487 U.S. at 211 n.10 (emphasis added) (first citing Fisher, 425 U.S. at 408; then citing Gilbert v. California, 388 U.S. 263, 267 (1967); and then citing United States v. Wade, 388 U.S. 218, 222 (1967)). ”

“Although the phrase “the use of the contents of the accused’s mind” has been used in act-of-production cases, we note that the case cited by the Eleventh Circuit for its proposition that the use of the contents of the accused’s mind is the touchstone of whether an act of production is testimonial does not so hold. Curcio v. United States, 354 U.S. 118 (1957), provides that there “is a great difference” between compelled production of documents and compelled testimony, specifying that testifying as to the location of documents “requires him to disclose the contents of his own mind.” Id. at 127-28. ”

Source: STATE OF FLORIDA v AARON STAHL Case No. 2D14-4283  Opinion filed December 7, 2016.

Previous Coverage of Cell Phone Searches
Dec 3, 2015 Search Warrant for an Abandoned Cell Phone. Police search lost cell phone – The cops waited 23 days to get a search warrant. A Florida Court …
Jul 17, 2010 Search Warrant for a Cell Phone? Tell Me Your Story Toll Free 1-877-793-9290 or Click the Call Me Button to Your Right at the top of this page. supreme-court-says/
May 2, 2013 Search Warrant for Cell Phone Handset Required – Florida Supreme Court Says a police officer is not authorized to search through … suppressed/
Apr 27, 2011 Criminal Defense Attorney / Lawyer notes a recent Cell Phone Search ruling on a Motion to Suppress Evidence, filed pursuant to Rule 3.190(h), …
Dec 3, 2015 Search Warrant Cell Phone. Search of Lost Cell Phone. What happens when you lose a cell phone and it has illegal material on it? requirement/
Jan 21, 2014 One friend has said, “Wow, the Supremes are taking a serious look at cell phone searches! There’s been talk for a while now about the …
May 6, 2011 One Florida court has just ruled in a 33 page opinion that pictures in a cell phone obtained from a suspect who had been arrested were …
May 21, 2013 Wurie, Cell Phone, Search, Warrant. Florida Criminal and DUI Defense Attorney notes a Federal Court has lined up with the Florida Supreme … prosecutions/
Dec 15, 2011 Board Certified Criminal Trial Lawyer at Law Office of W.F. ”Casey” Ebsary, Jr. notes recent developments in Cell Phone Location Data used in …
Sep 11, 2010 Historical cell phone records of the tower sites used by a defendant were deemed admissible and efforts to suppress the records were for …

No Phone Zone – Jurors Must Log Off Says Florida Court

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No Phone Zone for Jurors
In a mere 43 pages, the Florida Supreme Court has told judges, civil, and criminal defense lawyers how to address widespread use of electronic devices by jurors in courts. We now have guidance on what is meant by turning off these devices. There are very specific instructions to be given during trials. The instructions now tell jurors what to do with computers, tablets, and cell phones during breaks and recesses. Jurors also receive an explanation of why they are to be disconnected with the outside world during jury service.

What has Florida told lawyers and Judges about use of electronics by Jurors?
“The rule provides that electronic devices will be removed from all members of a jury panel before jury deliberations begin.  The presiding judge may remove the jurors’ electronic devices at other stages of the trial.  If electronic devices are removed from members of the jury panel during trial, the judge may order them returned during recesses.  If a jury panel is sequestered, the judge may decide whether to remove electronic devices during the entire period of sequestration.  The rule also makes clear that during court proceedings, jurors cannot use their electronic devices to take photos or videos, or to transmit or access data or text.  At all times, jurors are prohibited from using the devices to research information about the case or to communicate with others about the case or jury deliberations.” 
What does the Court mean when Jurors are told to turn off electronic devices?
“All cell phones, computers, tablets or other types of electronic devices must be turned off while you are in the courtroom. Turned off means that the phone or other electronic device is actually off and not in a silent or vibrating mode.” 
What are Jurors told about use of electronics in Court? 
“Many of you have electronic devices such as cell phones, smartphones, tablets, and laptops, computers, and other electronic devices.  Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers.”
“When you are called to a courtroom, the judge will give you specific instructions on the use of electronic devices.  These rules are so important that the judge may tell you that you must turn off your cell phone or other electronic devices completely or that you cannot have your cell phone or electronic devices in the courtroom.  If someone needs to contact you in case of an emergency, the judge will provide you with a phone number where you can receive messages.”
“If the trial judge allows you to keep your cell phones, computers, or other electronic devices, you cannot use them to take photographs, video recordings, or audio recordings of the proceedings in the courtroom or your fellow jurors.  You must not use the many device to search the Internet or to find out anything related to any cases in the courthouse.”
Why are Jurors told to log off of cell phones, smartphones, tablets, and laptops, computers, and other electronic devices.?
“Why is this restriction imposed?  This restriction is imposed because jurors must decide the case without distraction and only on the evidence presented in the courtroom.  I know that, for some of you, these restrictions affect your normal daily activities and may require a change in the way you are used to communicating and perhaps even in the way you are used to learning.”
“If you investigate, research, or make inquiries on your own, the trial judge has no way to make sure that the information you obtain is proper for the case.  The parties likewise have no opportunity to dispute or challenge the accuracy of what you find.  Any independent investigation by a juror unfairly and improperly prevents the parties from having that opportunity our judicial system promises.” 
“Between now and when you have been discharged from jury duty by the judge, you must not provide or receive / discuss any information about your jury service to / with anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications.”
“In this age of electronic communication,I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all.  Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.”   
“After you are called to the courtroom, the judge will give you specific instructions about these matters.  The / A judge will tell you when you are released from this instruction.  Remember, these rules are designed to guarantee a fair trial.  It is important that you understand the rules as well as the impact on our system of justice if you fail to follow them.  If it is determined that any one of you has violated this rule, and conducted any type of independent research or investigation, it may result in a mistrial.  A mistrial would require the case to be tried again at great expense to the parties and the judicial system. The judge may also impose a penalty upon any juror who violates this instruction.  All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case. ” 
What happens with electronics when jurors take a break or recess?
“We are about to take [our first] [a] recess. Remember that all of the rules I have given you apply even when you are outside the courtroom, such as at recess. “
“Remember the basic rule:  Do not talk to anyone, including your fellow jurors, friends, family or co-workers about anything having to do with this trial, except to speak to court staff.  This means no e-mailing, text messaging, tweeting, blogging, or any other form of communication.”
“You cannot do any research about the case or look up any information about the case.  Remember to observe during our recess the other rules I gave you. If you become aware of any violation of any of these rules at all, notify court personnel of the violation.”
“After each recess, please double check to make sure [that your cell phone or other electronic device is turned off completely] [that you do not bring your cell phone or other electronic device into the courtroom or jury room].”  
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Read the Complete Criminal and Civil Instruction for Jurors and Cell Phones Here

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