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.