THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR COUNTY, FLORIDA STATE OF FLORIDA, Case No. Fl6015256 Plaintiff, Section No. F009 VS. Judge JOHNSON BARACHLV VOIGT WESLEY HUBERT VICTOR Defendant MOTION TO COMPEL DEFENDANTS TO PRODUCE CELLULAR TELEPHONE PASSCODES COMES NOW KATHERINE Hi anI .F., State Attorney of the Eleventh Judicial Circuit Of Florida, by and through the undersigned Assistant State Attorney, and moves that this Honorable Court enter an Order compelling the Defendants to produce passcodes to unlock their cellular telephones which were seized at the time of their arrest in this matter, and in support thereof states the following: FACTUAL BACKGROUND July 21, 2016, Defendant Voi gt and Defendant Victor were arrested by the Miami Beach Police Department on Charges of extorting victim .lulieanna Goddard. The Defendants were subsequently formally charged with Extortion. Conspiracy to Engage in Extortion, and Unlawful Use of?l?wo Way Communications Devices based upon the following facts:l a. in the afternoon hours of July 20, 2016, the Defendant Voigt contacted victim Julieanna Goddard indirectly by using her cellular telephone to communicate with Ms. Goddard?s personal assistant, lmani Simmons. Defendant Voigt utilized her own cellular telephone which was assigned phone number (754) 202-6802 to engage in text message communications with Ms. Simmons and Ms. Goddard. In these messages, Defendant Voigt advised that someone had hacked Ms. Goddard?s phone and obtained compromising sex videos of Ms. Goddard which they were trying to sell. This conversation continued with Defendant Voigt sending screenshots and clips of the sex videos to prove that these unspeci?ed individuals actually had . . . . . Note that this of facts is intended to be a summary and not an exhaustive and all- mclusive recitation of every fact and detail in this case. Page 1 oflt) HENCJHA BARACHLY VOIUT WESLEY IIUHERT VICTOR compromising videos of the victim. Defendant Voigt further advised that the would- bc blackmailers would contact the victim using a ?trap phone? and advised: ?But don?t threaten them, be super nice? and give them the And they don?t do something it?. During the same time period that these text message communications were taking place. Defendant Voigt engaged in multiple voice phone calls and text message communications with Defendant Victor at his cellular telephone numbers of(786) 351-1058 and (954) 398-3398.2 b. Subsequently, at approximately 6:04 PM on July 20. 2016. Defendant Victor sent a text message to Defendant Voi gt from cellular telephone number (305) 783-8445 in which he asked for the victim?s phone number. Defendant Voigt responded to this text message by sending a text message back at approximately 6:25 PM on July 20. 2016, from her own cellular phone which contained the victim/witness?s telephone number. Shortly thereatter. Defendant Victor utilized the phone assigned cellular telephone number (305) 783?8445 to initiate a text message conversation with Ms. Simmons and Ms. Goddard by sending a text message which read: ?This text is in behalf of the videos we have?. The conversation on July 20, 2016, concluded with Defendant Victor telling the victim: ?You have 24 have a wonderful 2 videos in total one with robb banks and 0116 With [Eimbo the photographer ill give it further instruction shortly?. The following day on July 21. 2016. at approximately 2:00 PM the text message .0 conversation between Defendant Victor and the victim resumed with the Victim inquiring into how she could get the videos back. Defendant Victor responded: ?18k cash there on usb you can have them back as 1 said you dope Chick I like your 2 Telephone records show that at least one SMS message was exchanged between (954) 398- 3398 and (754) 202?6802 on July 20. 2017 and that at least ?ve SMS messages were exchanged between (754) 202-6802 and (786) 351-1058 over the course of July 20. 2016, and July 21, 2016. Telephone records show that multiple SMS messages were sent from (754) 202-6802 to (786) 351?1058 throughout the day on July 20. 2010. and July 21, 2016. Telephone records also show that multiple SMS messages were exchanged between (954) 398-3398 and (786) 351-1058. It should be noted that Apple iPhoncs are also capable of sending and receiving text communications as ?iMessages.? iMessages do not appear in telephone service provider records as anything other than generic data usage. Therefore. the only practical way of determining whether iMcssages were sent or received from a particular phone is to actually examine the contents of the phone. Page 2 of 10 IlAImt'Hm ?7101 WESLEY "Darwinian; movment look if I feel any fun business GAME OVER your choice have great day?. Within minutes of that exchange, Voigt and Defendant Victor were apprehended together by Miami Beach Police officers in the vicinity of 1000 West Avenue in Miami Beach. 2.At the time of their arrest. the Defendants were in physical possession of the following cellular telephones: a. Hencha Voigt: Apple iPhone 6, Phone Number: (754) 202-6602 (Hereinafter ?Phone b. Wesley Victor: Blackberry, Phone Number: (954) 398-3398 (Hereinafter ?Phone 13?) r. Wesley Victor: Apple iPhone 68, Phone Number: (786) 351?1058 (Hereinafter ?Phone d. Wesley Victor: Samsung. Model: Phone Number: (305) 783-8445 (Hereinafter ?Phone 3. On August 17, 20l6. a search warrant was signed by the Honorable Diane Ward authorizing the search of Phone A. Phone B, Phone C. and Phone D. 4.Detectivc Ricardo Arias of the Miami Beach Police Department, who is a digital forensic examiner, attempted to execute the search warrant upon all four recovered cellular telephones pursuant to the search warrant. While Detective Arias was able to determine the telephone numbers associated with each of the tour cellular telephones, he was unable to fully examine the contents of either Phone A or Phone because each of those phones were locked via a passcode with no available bypass.3 5.While Phone A does contain a biometric fingerprint scanner that could potentially allow access, it is not known whether the device has been configured to allow access via ?ngerprint scanning. In any event, even if Phone A is con?gured to allow access via the ?ngerprint scanner, production of a ?ngerprint will not be suf?cient to unlock the device because the security features of Apple iPhoncs such as Phone A require a numeric passcode .1 De - tectivc Arias was also unable to examine the contents 01? Phone because that particular phone had been reset to factory default conditions. The State does not see to compel any assistance in unlocking Phone bec deleted, ause it 15 already known that the contents of that phone were Page 3 of 10 wtsi HUBER VICTOR 'B?lr (10] jlfih be mu'rcd nficr Lhu phone has hecn nuwcu'd rrn' hr nnr-r eennrn umoum 01' rm acct" hr rhe of rho phone even me deuce has becn cuufigured alluw acctsa are fingemum mm- l'hc unly of an mug rhe dance Hm lhmugh use a me I'hum: dne~ no. cumam scanner. rhererxrre. mt only pmsublc means Mn: devu'e mmugh rhe of rhe mode 7 Delcr'danl Vmg| made poern--nndn mm Phone A and me assucmmd numhcr 0mm 102mm: hdonggd Io her ('enrficd records rho Flondh ncpannrenr of shrery and \AquI > and lusmnc all me hrcanun mlunuhuml (rsm were also \varrunK wrvetl upon me ~enmc prqumg serum: \u Plume A (T-Mohxlel and Wm: Th The leMubHc remnh rhrm, Ihc fin Alm phone number nssomnwn wuh Phone A \ws "Hench: \'orgr uirh .r u- -- Hullywuod. FL um 1h: [Ccums xhuu) Hm \uthnher fin phune nuhrher hned nrhhees - .e Iccords show. me mourned wulr Plum: \Vll: "Weak; 31117 4: Die 'I-Molulc CSLI I'm the plume number neuncuued \vul} I'hum' A Slums |hrn July Ii mun. <11 The A1511 an an 1111 phone numbcr "aw-111111 111111 Phom: 111nm 11111 hehveen 111111 15. 213111, and 1111, 2 . <<0111. Phone was connecung 111 cell \0wer: 111 111111: 1110111111111 111 Ue1s11dan1 \1111111', rCSIdenLc 111- -P1a11111111.11. 23317 111 Unlcas pmscudm a1: 11;. A 111111 Phone 1112 Lwaul'y nhmm'd search 11.111111111111n11111c 11111: 111 111 111111 summed 111111111>110nc A and Phonc 13 OF LAW 11 r111>1111np111111111111 1111111111111-111g 1111,111111-11111-1 11 111111711-1111111111111 11111111111111.1111 111111111111111111: 11111 1111111 1n 11111111111 111/[11121 11111 1111- 11m 11/ p11111111-111g 11111 "1111111111111 111 mum/1 1111/11>>- 11/ Ilm 01411111111111 111-1111111111" 1111111111 111 111-qu a/ 11111 1111111111 mum/11111111 51.111: seen 111 9.111 1111111 11111111111111 1n 11115 am: 111 produce me 1311111111: 1h111 11 "canary 1o acress' 111c1r plume, A: |l1c 3111316111: 0111111 has 11111111. 111a q\\C:I1nn 111' 1111111111 .1 ccmmumcauml 1, 11,111n11111111 1111 purpuacs or [he Fir-11 Amendmem on 111: 1:11:15 am! clrcunmanw: 111'111e panILulnr ram: Do: 1 111111111 511111;, 487 :01. 21+ 5 11mm -111 11111110 be .1 15 11111 1110111111 11111 1111 1011111111111 cumluumcnuml 11 11111911111115 comcm T11: 11111111111111 111111211 11 10. 1111112 1mm" 11111. 1111 51m sack: 11n1,1 111: plodumon 1111111 pmnde, a1111 11111 my uncrnon 011111111 11 1111 111a 11m defendants 111111111 1111111111111. 1111- phnnu: 111 111111111111 ma) 1111111111 111 111111111 11111 I): ndmlulng 11111 nny 1ncn1111nn11ng 1n nc1un11y 11111111111211 w11111n 111m Plum: A 111 11111111.- 3 11111111111011, 1111 81111- 11111 not 111an n11y 1111151 3:1 111' 111: pmcnue. 111 "1111111 111211 <> mu mue 111 511112 1 smfib 2011 511.111 mm; 211 DCA 20111, 11111111111119.1111 51311: 0111111111: 511113111 111 compel 5111111111 1111111111- 1111. pasncode 1o 111> 1111111111 1111111111113 1n 111111-1111 1111-1111 11 1nw11111y 11111111nc11 1nn1c11 11mm 1 11r p1111111c1n11 1111 111 a 11ch vovcumm cm 1111 appullme mun 111111 111.11 1|1c . 11111111111: 10 11 "1111111 phone 1111 11111111 11 :cnmh \x11rm111 111111 11111a1nc11 did 1101 1111npe1 the dufcndanl 111 c1111111111111c111c 1n1'111111n1111n 11111 111111 \caumomnl 111111r11nnc1- and c11n111111c11 111m "11111111111111; :1 111mm lo 111.111e a 1111nrnc11111 smemem 111111 11111111111>>: 111: moducfion 111' Name 1111 v1111cl1 \l1c 51.11: 1111,>> 01111-11111>>- 1117111 :11 11 11mm based 111111" :1 Menu: 1ndcpem|cnl 111 111: m1>> 511 11 1(1'111H13m1111u1mr11 1 M1111 111 111.1111n1 1111 11111 accused?s statements linking the accused to the crime does not offend the privilege." State V. Stahl, 50,3d 124 (Fla. 2d DCA 2016) (quoting Doe v. United States. 487 U.S 201, 213 n. 11 (1988)). The probable cause af?davit for the arrest in Stahl provided that the victim was shopping in t1 store when she observed a man crouching down with what she believed was a cellphone in his hand. The screen of the cellphone appeared to be illuminated and the man was holding the cellphone underneath her skirt. When the victim confronted the man, he told her that he had dropped his cellphone. While yelling for assistance, the man was able to flee the store. Store surveillance video con?rmed that the man had crouched down with an illuminated device in his hand, moving it toward the victim?s skirt. It also showed the man exit the store and get into a vehicle in a parking lot. Using the license plate visible in the video, law enforcement was able to identify Stahl as the registered owner of the vehicle and was able to identify Stahl as the person in the video. Stahl was arrested, but the cellphone was not on his person. Stahl admitted to being in the store, denied taking inappropriate photos. and verbally consented to a search of his cellphone, which he identi?ed as an Apple iPhone 5 located in his residence. After the cellphone was retrieved from Stahl?s residence, Stahl withdrew his consent to search the phone. Law enforcement subsequently sought and obtained a search warrant to search Stahl?s Apple iPhone 5. However. the police were unable to execute the search warrant and View the contents of the phone because the phone was passcodc locked. The facts of the instant case are, in all material respects, indistinguishable from the facts of State v. Stahl, 206 So.3d 124 (1713. 2d DCA 2016). If anything, the facts supporting probable cause for the warrant to search the phones is actually stronger than they were in ?t_ah_l. As was the case in S?hl, in the instant case, cellular telephones are believed to contain relevant and potentially incriminating evidence. In ?t_ahl, it was not certain that the phone had actually been used to take any inappropriate photos whereas in this case, it is known that Phone A was, in fact, used to send the relevant text messages to the victim and should therefore contain copies of those messages. Similarly, as Phone A was actually used to send proof that the would-be blackmailers were actually in possession of compromising videos and images. Phone A should contain copies of those same compromising videos and images and should contain evidence showing how those compromising videos and images came to be contained on Phone A in the ?rst place. Finally, it is known that text messages passed between Phone A and Phone and between Phone and Phone while the extortion scheme was in progress, Phone should contain copies of those messages. Page 6 of 10 BAR Acnw velar FY VICTOR "l3"lF1riol5255 The situation facing this Court is fundamentally the same situation that faced the Court in S?te v. Stahl, 206 So.3d 124 (Fla. 2d DCA 2016) the State has obtained a search warrant which cannot be fully executed as a result of the passeodes and seeks to compel the defendants to produce those passcodes so that the search warrant can be fully executed. The Defendant?s production of those passeodcs will not be used to establish any kind of ownership, control, or knowledge of the contents of the devices in questions and therefore has no testimonial signi?cance. controls the outcome here and requires that this Court grant the State?s motion to compel each of the defendants to produce the passeode necessary to access the contents of their respective phone. 8. Even if the act of producing the passcodes were testimonial, the foregone conclusion exception to the Fifth Amendment privilege is applicable, therefore any testimonial communication implicit in the act of production does not rise to the level of testimony protected by the Fifth Amendment. The foregone conclusion exception to the filth Amendment privilege against self? inerimination provides that an act of production does rise to the level of testimony that is within the protection of the Fifth Amendment where the State has established, through independent means, the existence, possession, and authenticity of the materials sought such that by implicitly admitting the existence of the evidence requested the accused ?adds little to nothing to the sum total of the Government?s information.? State v. Stalil, 206 So.3d 124, 135 (Fla. 2d DCA 2016) (quoting Fisher v. United States, 425 US. 391, 41 1 (1976). In essence, where the foregone conclusion exception applies, it is not question of testimony, rather it is a question of production and the act ofproduction does not compel the accused to be a witness against himself. State v. Stain, 206 So.3d 124, 135?36 (Fla. 2d DCA 2016); see also Commonwealth v. Gelfga_tt, 11 NE. 3d 605, 614-15 (Mass. 2014). In order for the foregone conclusion exception to the Fifth Amendment privilege against self- incrimination to apply, the State must show with reasonable particularity that at the time that it sought the act of production: 1) it already knew that the evidence sought existed, 2) it already knew that the evidence sought was in the possession of the accused, and 3) that the evidence sought is On March 20. 2017, the Third Circuit of the United States Court of Appeals reach a similar result as did the court in Sta_hl. $2 United States v. Apple MacPro Computer, F.3d 2017 WL 1046105 (3d Cir. 2017). In that case, the Third Circuit held that an order compelling the suspect to produce his iPhone 6 Plus, Mac Pro computer. and two external hard drives in a fully state was a necessary and appropriate means of effectuating an already issued search warrant and af?rmed the district court?s order holding the suspect in contempt for failing to enter the passcode needed to the external hard drives. Page 7 of 10 VOIGT WESI FY VICTOR authentic. 206 So.3d 124, 135 (Fla. 2d DCA 2016). The State does not need to have perfect knowledge of the evidence sought. but it must know and not merely infer that the evidence exists, is under the control of the defendant, and is authentic. Milli 206 So.3d 124, 135 (Fla. 2d DCA 2016). In the instant case, the State seeks the production of the passeode to access Phone A from Defendant Voigt and the production of the passeode to access Phone from Defendant Victor. The facts set forth in this motion establish that the State already knows that these passeodes exist. A search warrant was obtained in order to search the contents of these phones, and during while attempting to execute that warrant, Detective An'as discovered that neither phone can be accessed without inputting a passeode. Therefore. the passeodes needed to access Phone A and Phone must exist. Similarly. the State already knows that Defendant Voigt possesses the passeode needed to access Phone A and that Defendant Victor possesses the passeode needed to access Phone B. Phone A was in Defendant Voigt's physical custody when she was arrested in this case and she admitted post-Miranda that Phone A belongs to her. Subscriber records for the telephone number associated with Phone A show that Defendant Voigt is the subscriber and the for that same phone number show that Phone A repeatedly connected to cell towers that are in close physical proximity to Defendant Voigt?s residence between July 15. 2016 and July 21, 2016. Likewise, Phone was in Defendant Victor?s physical custody when he was arrested in this case. Subscriber records for the phone number associated with Phone show that Defendant Victor is the subscriber and the for that same phone number show that Phone repeatedly connected to cell towers that are in close physical proximity to Defendant Victor?s residence between July 15, 2016 and July 21, 2016. The information already in the State?s possession establishes that Phone A belongs to Defendant Voigt and that Phone belongs to Defendant Victor. Therefore. the passeode to access Phone A will be in Defendant Voigt?s possession and the passeode to access Phone will be in Defendant Victor?s possession because without possessing the passeodes, Defendant Voigt and Defendant Victor would not have been able to use the phones that the evidence shows lhem to have heen using. St_ate_v.VStahL 206 So. 3d 124. 136 (Fla. 2d DCA 2016) (?It is also established. with reasonable particularity based upon cellphone carrier records and Stahl?s identification of the phone and the corresponding phone number, that the phone was Stahl?s and therefore the passeode would be in Stalil?s possession") Page 8 of It) HENCHA VOIGT WFSILY Vlt? IUR "B"lFl 601 $2511 As was recognized by the Second District Court ot?Appeals, the technology of passcodes and similar keys is. by nature, self-authenticating. State v. Stahl. 206 So. 3d 124, 136 (Fla. 2d DC A 2016). 11? Phone A and Phone are accessible once their respective passeodes have been entered then the respective passeodes are authentic. In the instant case, the State has established all three prongs necessary for the applicability of the foregone conclusion exception to the Fifth Amendment pn'vilegc against the State already knows that that passeodes exist; the State already knows that the defendants possess the passeodes needed to access the phones that they owned; and. ?nally. the passcodes themselves are self?authenticating by their Very nature. The Fifth Amendment therefore presents no barrier to compelled production of the passcodes to Phone A and Phone B. CONCLUSION The facts of the instant case are. in all material respects. indistinguishable from the facts of State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016). As there is no binding precedent on the issue from either the Florida Supreme Court or the Third District Court of Appeals, this Court is bound by the decision of the Second District Court of Appeals which is directly on point to this motion. 53 Pardo v. State, 596 So. 2d 665, 666 (Fla. l992). This Honorable Court should therefore grant the State?s motion and enter an order compelling Defendant Voigt to produce the passeode needed to access Phone A and an order compelling Defendant Victor to produce the passeode needed to access Phone B. Respectfully submitted. KATHERINE FERNANDEZ RUNDLE STATE ATTORNEY By: /s/Michael Filteau Assistant State Attorney Florida Bar 84l 69 1350 Northwest 12th Avenue Miami. Florida 33136?2111 (305) 547?0100 FelonvSewieen'igMiamiSAO.com CERTIFICATE OF SERVICE Page 9 01'10 VOltiT