IN THE CIRCUIT COURT OF TIIE ELEVENTH JUDICIAL CIRCUIT 1N AND FOR MIAMI-DADE COUNTY, FLORIDA STATE OF FLORIDA, DWIBION: CRIMINAL Plaintiff, JUDGE: CHARLES JOHNSON CASE NO: V. HENCHA VOIGT, Defendant. HENCHA MOTION IN OPPOSITION TO THE MOTION TO COMPEL DEFENDANTS T0 PRODUCE CELLURAR TELEPHONE PASSCODES COMES NOW, Defendant, BARACHLY VOIGT, by and through her undersigned counsel, moves to oppose the State?s Motion to Compel Defendants to Produce Cellular Telephone Passcodes, and in support thereof states the following: I. INTRODUCTION The State of Florida has ?led a motion with this Honorable Court to compel Ms. Voigt to produce a passcode for her cellular phone. As set forth below, the State cannot compel Ms. Voigt to produce the passcodc to her cellular phone as production of her passcode is testimonial, and it violates Ms. Voigt?s Fifth Amendment right against self?incrimination. In addition, the State is relying on Ms. Voigt?s truth- Ielling of her passcode to prove the existence of additional contents in her cellphone and/or Ms. Voigt's access to the contents in her cellular phone; therefore, the foregone conclusion doctrine is not applicable for compelling production of her passcode and the passcode is subject to the constitutional privilege of self-incrimination. Hence, compelling Ms. Voi gt to produce the passcode to her cellular phone ?would require compulsion ofa testimonial communication that is incriminating." Commonwealth of Virginia v. Uaust. No. CR14-1438 (Va. 2d. Cir. Ct. Oct. 28, 2014) (citing to U.S. v. Authemem, 607 F.2d 1129, 1131 n. 1 (5th Cir. 1979)). 11. SUMMARY OF ARC UMENT By compelling Ms. Voigt to produce the passcode to her cellular phone, Ms. Voigt?s Fifth Amendment rights will be violated. Furthermore. the foregone conclusion doctrine does not apply because a passeode is not a tangible, physical ?thing". Moreover, the State?s reliance on Ms. Voigt?s truth-telling of her passcode is to prove the existence of possible additional content or her access to possible additional content in her cellular phone. Said reliance places Ms. Voigt?s compelled production of her passeode under the constitutional privilege of self-incrimination. LEGAL PRINCIPLES A. The Compelled Production ofa Cellular Passcode is Testimonial, and It Violates the Defendant?s Rights under the Fifth Amendment. The Fifth Amendment provides that no person ?shall 06 compelled 111 any Ct'lminal case to be a witness against himself.? U.S. Const. amend. See Malloy V. Hogan, 378 U.S. l, 8, S. Ct. 1489. 1493?94 (1964') (incorporating Fifth Amendment protections into the Due Process Clause of the Fourteenth Amendment). The Supreme Court has clari?ed that ?the privilege protects a person 0111} against being incriminated by his own compelled testimonial communications.? Fisher v. United States. 425 U.S. 391, 409, 96 S. Ct. 1569, 1580 (1976). Here, the record establishes that the State has filed a Motion to Compel Ms. Voigt to produce the passeode to her cellular phone. The compelled production of the passcode falls under testimonial communication protected under 1 Incriminating has been de?ned as ?any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.? Commonwealth of Virginia v. Baust, No. CRI4- 1438 (Va 2d Cir. Ct. Oct. 28, 20l4) (citing to Kasrigmr v. United States. 406 us. 441, 445 (1972)). the Fifth Amendment. the Court in Doe held that "in order to be testimonial, [a criminal defendant?s] communication must itself, explicitly or implicitly, relate a factual assertion to disclose information. Only then is a person compelled to be a ?witness? against himself.? Doe v. UniledStates, 487 US. 201, 210, 108 S. Ct. 2341. 2347-48 (1988). Although the Supreme Court has recognized that ?both federal and state courts have usually held that [Fifth Amendment] offers no protection against compulsion to submit a blood sample, ?ngerprints, and a handwriting sample or voice exemplar, a passcode is not subject to this unprotected category. See State of'Minneso/u v. Diamond. No. (Minn. Ct. App. January 17, 2017) (citing to Schmerber. 384 US. at 764, 86 S. Ct. at 1832)); see Doe, 487 U.S. at 219 (Stevens .1.) dissenting) (?Fingerprints blood samples. voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will?). The Court in In re Grand Jury Subpoena Durex Tet-um, reasoned that requiring a defendant to and produce the contents of his computer?s hard drive . . . would be tantamount to testimony by the defendant of his knowledge of the existence and location of potentially incriminating ?les: of his possession, control, and access to the portions of the drives; and of his capability to the ?les." In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335. 1346 (11th Cir. 2012). The Court held that such a requirement is analogous to requiring the production of a combination and that such a production involves implied factual statements that could potentially incriminate. 1d. By being compelled to produce a passcode. Ms. Voigt will be required to disclose any knowledge she might have or to declare her guilt. Unlike a ?ngerprint, handwriting sample or a voice exemplar, Ms. Voigt?s passcode cannot be extracted against her will. The State argues that Ms. Voiat ?will not be admitting that any incriminating information is actually contained within her cellular phone"; however, it is also arguable that the production of the passcode is analogous to the production of a combination, which will yield implied incriminating factual statements against Ms. Voigt in violation ofher Fifth Amendment right. Therefore, the communication does have a testimonial signi?cance. Ms. Voigt ?led a Motion to Dismiss the charges against her. The State of Florida subsequently ?led a Traverse. In said Traverse, the State of Florida intentionally took out of context certain statements that Ms. Voigt made when speaking to the agent for the alleged victim. in one speci?c occasion, Ms. Voigt told the agent for the alleged victim that there was no guarantee il?uu give llial the pei'pelrulors would not publish the compromising videos that were in their possession. The State, however, hung up on ?u give money. . insinuating that Ms. Voigt was asking for the victim to give the perpetrators money. Likewise, it is highly likely that the State of Florida would also take innocent statements made by Ms. Voigt and use same against her in a court oflaw. B. The oregone Conclusion Doctrine Only Applies to Tangible Documents or Objects, Which Can Be Physically Surrendered Rather Than Be Given Through Testimony. The courts in In re Grand Jury Subpoena and Fisher reasoned the following legal applications under the foregone conclusion doctrine: ?[?when the existence and location'] of the documents under subpoena are a ?foregone conclusion? and the witness ?adds little or nothing to the sum total of the Government?s information by conceding that he in fact has the [documents?], then no Fifth Amendment right is touched because the ?question is not of testimony but of surrender. Doe v. United States (In re Grand Jury Subpoena) 383 F. 3d. 905, 910 (9th Cir. 2004) (citing Fisher, 425 U.S. at 411); see also Commonwealth of Virginia Bausl, N0. CRl4al438 (Va. 2d. Cir. Ct. Oct. 28, 2014). [T]he Government is in no way relying on the ?truth-telling? of the [witness] to prove the existence of or his access to the documents.? Fisher, 425 US. at 41 1. ?The existence of documents subject to foregone conclusion is a question of fact subject to review for clear error.? United States v. Norwood, 420 F.3d 888, 895 (8th Cir. 2005) (citing to United States v. Doe, 425 US. 605, 613?14 (l984)). The court in Hubbell established a notable distinction between notion of surrender and testimony. Commonwealth of Virginia v. Baust, No. CRl4-l438 (Va. 2d. Cir. Ct. Oct. 28, 2014). The court in Hubbell reasoned that testimony [through the assembly of documents] was analogous to telling an inquisitor the combination to a wall safe, which is not like being forced to surrender the key to a strongbox. In the same context of compelling the production of a passcode, the court in held that compelling the defendant to provide a password is a testimonial communication. Commonwealth ofVirginia v. Baust, No. (Va. 2d. Cir. Ct. Oct. 28, 2014) (citing United States v. Kimchner, 823 F. Supp. 2d 665. 669 (2010)).578An act is testimonial when the accused is forced to reveal his knowledge of facts relating him to the offense or from having to share his thought and beliefs with the government.? 1d. (citing United States v. Doe, 487 US. 201, 212 (1987)). The Court in reasoned ?forcing the Defendant to reveal the password . . . requires Defendant to communicate ?knowledge, unlike the production of a handwriting sample or voice exemplar. 1d. It is extortion of information from the accused, the attempt to force him to "disclose the contents of his own mind? that implicates the Clause. Id. (quoting United States v. Doe. 487 at 21 (1987)). Similar to having to divulge the combination to a safe, the court reasoned ?the government is not seeking documents or objects?it is seeking a password.? 1d. ?Since the government is trying to compel the production of the password itself, the foregone conclusion doctrine cannot apply. The password is not a physical ?thing?. If [the defendant] knows the password, it only exists in his mind.? Commonwealth Qf?Virginia v. Baust, No. (Va. 2d. Cir. Ct. Oct. 28. 2014) (citing to In re Grand Jury Subpoena (Boucher) No. 2:06-mj-91, 2007 US. Dist. LEXIS 87951 at *16, 2007 WL 4246473 (D. Vt. Nov. 29, 2007). Hence, the password is not a foregone conclusion because it is not known outside of the Defendant's mind. Commonwealth of Virginia v. Baust. No. CRl4-l438 (Va. 2d. Cir. Ct. Oct. 28, 2014). Ifthe password was a foregone conclusion, the [State] would not need to compel the Defendant to produce it because they would already know it. Id. In the present case, forcing Ms. Voigt to give the State of Florida the passcode to her cellular phone will be forcing her to communicate with the State testimonial statements that will disclose the contents of [her] own mind. The consequence of Ms. Voigt having to produce the passcode is that it will implicate the Seb??lncrimination Clause. The State has argued that the production of the passeode falls under the forgone conclusion exception to the Fifth Amendment; however, precedent has established that the foregone conclusion exception only applies to tangible objects. Had the. State. of Florida sought the production of documents or objects from Ms. Voigt, then the State could argue that the documents and objects sought need to be produced under the foregone conclusion exception as surrender rather than testimony. Then the State of I?lorida could argue that ?the production and the act of production" is a surrendering of documents or objects, which ?does not compel the accused to be a witness against himself.?2 Moreover, if the State would already know the existence of the password through independent means, then the State would not need to compel Ms. Voigt to produce the passeode to her cellular phone. Hence, the passcode that the State Stale v. Stuhl, 206 So. 3d I24, 135-136 (Fla. 2d DCA 20l6), is seeking cannot fall under the foregone conclusion exception because the passcode only exists in MS. Voigt?s mind. Moreover, the State?s reliance on Ms. Vnigt?s truth-telling of her passcode is to prove the existence of possible additional content or her access to possible additional content in her cellular phone. Said reliance places Ms. Voigt?s compelled production of her passcode under the constitutional privilege of self-incrimination. Ms. Voigt cannot be compelled to "disclose through [her] mental processes the passcode for entry. A passcodc is unlike a ?ngerprint. which has physical characteristics that are non-testimonial and would not require Ms. Voigt to communicate any "knowledge at all.? Meaning that there is a notable distinction between producing non- testimonial evidence that contains physical characteristics, such as a fingerprint and producing evidence, which forces the Defendant to "disclose the contents of [her] own mind." For the aforementioned reasons, the State?s Motion to Cornpel Defendants to Produce Cellular Telephone Passcodes should be denied. CONCLUSION WHEREFORE, Defendant Voi gt respectfully requests that this llonorable curt deny the State?s Motion to Compel Passcode and grant any other reliefs that this Court deems fair and just under the circumstances. CERTIFICATE OF SERVICE I HEREBEY CERTIFY that a true and correct copy of the foregoing motion has been sent Via e?mail to Assistant State Attorney Michael Filteau at and Zeljka Bozanie, Esq. at infot'cDbozaniclawcom this 24th day of April 2017.