Florida Court of Appeal rules passcode protected by Fifth Amendment

Yesterday, Judge Lambert issued an opinion, Garcia v. State, No. 5D19-590, 2020 Fla. App. LEXIS 12232 (Fla. Dist. Ct. App. Aug. 28,2020), ruling on the Petitioner’s request to quash an order requiring him to disclose the passcode for his smartphone on the grounds that it would be a violation of his Fifth Amendment privilege not to testify against himself. Garcia is alleged to attached a GPS tracker to his former girlfriend’s vehicle so he could monitor her whereabouts on his cell phone. He was charged with aggravated stalking. His smartphone was found outside the former girlfriend’s home.

The State filed a motion to compel which was granted by the trial court on the grounds that providing the passcode was non-testimonial.

The Florida Fifth District Court of Appeal agreed with Garcia that producing the passcode would require him to disclose the contents of his mind and provide the State with incriminating information that would be used against him. “Distilled to its essence, the revealing of the passcode is a verbal communication of the contents of one's mind.”. Id. at *8.

The Court also held that the foregone conclusion exception to the Fifth Amendment privilege should not apply in the sense that the existence of the passcode was a foregone conclusion akin to accounting paperwork prepared for a tax return. “To compel a defendant, such as Garcia, to disclose the passcode to his smartphone under this exception would, in our view, sound ’the death knell for a constitutional protection against compelled self-incrimination in the digital age.’” Id. at *12. (quoting Commonwealth v. Jones, 117 N.E.3d 702, 724 (Mass. 2019).

Unless the ownership of a smartphone was in question knowledge of a passcode would always be a foregone conclusion, and the State of Florida Court of Appeal declined to extend this exception which has only been affirmed in one case by the Supreme Court of the United States.

The question of whether compelling a passcode was a Fifth Amendment violation, and if providing a passcode was a protected testimonial communication was certified to the Supreme Court of the State of Florida.

District of Maryland Case with a Defendant Known Only By An IP Address

Last year, Judge Paula Xinis issued a decision, Malibu Media, LLC v. Doe, No. 8:19-cv-00576-PX, 2019 U.S. Dist. LEXIS 32986 (D. Md. Mar. 1, 2019), granting Malibu's motion requesting permission to initiate discovery to identify the Defendant. The Defendant had only been identified by an IP address assigned by an ISP on a particular date, and is alleged to have used BitTorrent to download copyrighted films.

The Court ordered the issuance of a subpoena to produce documents identifying the Doe subscriber. This production cannot be made until the Defendant received notice of the suit, and the Defendant is given 30 days to file a motion to quash the subpoena. The Defendant can file this motion without disclosing his or her identity to anyone except for the Court.

The identity of the Defendant will remain highly confidential, and must be redacted from public filings.

Mississippi Court of Appeals: Jury Must See Evidence Where Spoliation Unclear

This week Judge Jim Greenlee of the Mississippi Court of Appeals issued a decision, Murphy v. William Carey Univ., No 2018-CA-00910-COA, 2020 Miss. App. LEXIS 462 (Miss. Ct. App. Aug. 11, 2020), reversing a lower court’s granting of the Appellees’ summary judgment motion on a negligence claim but affirming one on a breach of contract claim.

The Circuit Court denied the Plaintif’s motion for an adverse inference instruction based on the Appellees’ spoliation of electronically stored information. Judge Greenlee refused to mandate that a spoliation instruction be issued to the jury at trial because it was not known what evidence would be presented to the jury. The opinion cites a decision of the Supreme Court of Mississippi which held that,”the explanation for the original record's absence may be fully satisfying either that it was lost through no fault of the [party], that the [party] deliberately destroyed it, or as in most cases, somewhere in between, thereby making it a jury issue." Id. at *28-29 (quoting DeLaughter v. Lawrence Cty. Hosp., 601 So.2d 818, 824 (Miss. 1992)). The jury must be able to determine if there was a reasonable explanation for the loss of the evidence.