IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR HILLSBOROUGH COUNTY CRIMINAL JUSTICE DIVISION STATE OF FLORIDA CASE NO: 18CF9167A VS WILLIAM JOHN MONTANEZ VERIFIED PETITION FOR ORDER TO SHOW CAUSE FOR INDIRECT CRIMINAL CONTEMPT COMES NOW ANDREW WARREN, STATE ATTORNEY of the Thirteenth Judicial Circuit of Florida, in and for Hillsborough County, by and through the undersigned Assistant State Attorney and moves this Court pursuant to Florida Rule of Criminal Procedure 3.840(a) to issue an Order to hold William John Montanez to Show Cause why he should not be held in contempt of court, and says as follows: AFFIDAVIT STATE OF FLORIDA SS: COUNTY OF HILLSBOROUGH I, ANTHONY J. FALCONE, Assistant State Attorney, subscribe and swear as follows: 1. That Deputy Kalin Hall of the Hillsborough County Sheriff's Department served the attached Search Warrants, dated June 22, 2018, for search of a cell phone, a black MetroPCS Apple iPhone, currently in HSCO Evidence Section (Item Tag #691217?007), and a White/Red iPhone cellular telephone/Model ID: 579C-E3085A, belonging to William John Montanez. 2. That Deputy Hall served and read the warrants to William John Montanez personally on or about 1910 hours, June 26?, 12018. 3. A copy of the warrants was provided to Mr. Montanez. 4. Both warrants state that law enforcement personnel are authorized to direct and compel any person who is reasonably believed to contain knowledge of 21 password to the devices named in these search warrants to provide such passwords to allow search. Deputy Hall states that Defendant Montanez was in personal possession of these phones at the time of a traffic stop; was calling and texting on them at the time of his traffic stop (specially, texted did they find it" after the traffic stop was conducted); and stated in a jail call that the HCSO had seized both his phones. Therefore, Hall reasonably believed that Montanez knew the password to the phones. After reading the warrants, Deputy Hall reiterated that the defendant was required to produce the passwords for him immediately. Montanez, during a 15 minute interval thereafter, responded that. he did not know the passwords; then changed his story to state that the phones are not his, and then finished with the statement, that am not giving you my password until I talk to my attorney", and indicated he would talk to his lawyer the following day. Deputy Hall had provided his cellphone number to the defendant?s mother and the defendant had been transported to the District Deputy Hall works at (District One) by Deputy Hall. Therefore, the defendant was in receipt of adequate information allowing him to contact Deputy Hall. The defendant has not, as of today?s date, either contacted Deputy Hall at the district, by cellphone, or otherwise, and no attorney has contacted Deputy Hall. Production a cellphone password does not require production of material of testimonial significance, see State v. Stahl, 206 So. 3d 124 (2 DCA 2016). FAL ONE WM gs ANT ON ASSISTANT STATE ATTORNEY FBN: 0770914 Subscribed and sworn to before me day of June, 2018 by ANTHONY J. FALCONE, who is personally known to me. 09mm 151% NOTARY PUBLIC DEBORAH sue DAVISON 955257 a Expiresfebmamm 2020 am Thu Troy Fin [mm WIND WHEREFORE, the State of Florida moves this Honorable Court to issue the attached Order to Show Cause directing Mr. William Montanez, to appear before this court to show cause why he should not be held in Contempt of Court. I HEREBY CERTIFY that a 'true and correct copy' of the foregoing Motion has been furnished to Mr. William Montanez, 1407 Autumn Drive Tampa FL 33613, and to Mr. Patrick LeDuc, Law Office of Patrick Leduc, 4809 E. Busch Tampa FL 33617, Patrick.LeDuc@ymai1.com, attorney for the defendant, this of June 2018, by email. Respectfully submitted, Mail rocessingStaffGSAOl3th.com ANTHONY FALCONE ASSISTANT STATE ATTORNEY FLORIDA 770914 STATE OFFICE 419 N. PIERCE STREET TAMPA FL 33602-4022 AJF/ajf IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR HILLSBOROUGH COUNTY CRIMINAL JUSTICE DIVISION STATE OF FLORIDA CASE NO.: 18CF9167A VS DIVISION: 0 WILLIAM JOHN MONTANEZ ORDER TO SHOW CAUSE THIS CAUSE coming on for approval of the Court, and the Court being advised by The State of Florida that defendant WILLIAM JOHN MONTANEZ, duly served with a warrant directing him to produce passwords for cellphones seized as evidence in this case, has willfully failed to produce the passwords. ORDERED AND ADJUDGED that the said WILLIAM JOHN MONTANEZ is to appear before the Honorable PP COURT JUDGE (Courtroom 17, First Floor, South Annex, Hillsborough County Courthouse, 800 E. Twiggs Streetz), on at to show cause why he should not be held in contempt. DONE AND ORDERED in OPEN Hillsborough County, Florida, this th day of 2018. CIRCUIT COURT JUDGE THIRTEENTH JUDICIAL CIRCUIT HILLSBOROUGH COUNTY, FLORIDA AJF SEARCH WARRANT IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA IN THE NAME OF THE STATE OF FLORIDA: TO: THE SHERIFF OF Hillsborough County Sheriff's Of?ce, FLORIDA OR ANY OF HIS LAWFUL DEPUTIES: Whereas, complaint on oath and in writing, supported by af?davit has been made before me, Judge Lawrence Le?er in and for Hillsborough County, Florida, by Kalin Hall Hillsborough County Sheriffs Of?ce who says: that the Af?ant is a citizen and resident the State of Florida, and who has reason to believe and does believe that a certain cellular phone located in Hillsborough County, Florida, described as follows, to-wit: White Red iPhone cellular telephone Model: A1660 FCC ID: BCG-E3085A IC: 5790-E3085A Being the cellular phone owned or possessed by William John Montanez Date Of Birth: 07/07/1993 And there is now being stored on said Cellular iPhone certain evidence, to-wit: images, text messages, ?les, telephone numbers, call logs, graphic ?les, digital media and/or digital ?les, and any other media that can store digital ?les and/or digital media. Phone records, records of Internet Service Providers, E-mails and other electronic data, including but not limited to passwords telephone numbers, Emails, Instant messages ortext message storage, computer images, computer programs and system documentation; documents ?les or any other computer data relating to passwords. Which can provide evidentiary value in proving a violation of the Laws of the State of Florida, to-wit: the Laws prohibiting: Possession of Cannabis Less Than 20 grams FSS Possession of Drug Paraphernalia FSS and Possession ofa Firearm During the Commission ofa Felony FSS That the facts tending to establish the grounds for this application and the probable cause of the Af?ant believing that such facts exist are contained in an af?davit for search warrant, sworn to before me on this date by Kalin Hall and it appears to the Court that the Af?ant is a reputable citizen of the State of Florida, and that the facts set forth in said af?davit show and constitute probable cause for the issuance of this warrant and the Court being satis?ed of the existence of said grounds set forth in said application, or that there is probable cause to believe in their existence. The af?davit for search warrant made by Kalin Hall is hereby incorporated by reference and made a part of this search warrant as if repeated in full, and a copy is attached. THE COURT FURTHER FINDS: Law enforcement personnel are authorized to direct and compel any person who is reasonably believed by law enforcement to contain knowledge of a password(s) to the device named in this search warrant, to provide such password(s) in orderto allow access to search the device pursuant to this search warrant. NOW THEREFORE, you are commanded with such proper and necessary assistance as may be necessary, in the day-time or in the night-time, or on Sunday, as the exigencies of the occasion may demand or require, to enter and search the aforesaid cellular phone for the data/information described in this warrant: and if the same or any part thereof be found, you are hereby authorized to seize and secure same, giving proper receipt therefore and delivering a duplicate copy on said cellular phone, and making a return of your doings under this warrant within ten (10) days of the date hereof, and you are further directed to bring said data/information so found before any County or Circuit Judge having jurisdiction of this offense to be disposed ofaccording to law. WITNESS my hand and seal this 22nd day ofJune 2018 fwza?y?m 2018062214125300 Lawrence Le?er JUDGE IN AND FOR HILLSBOROUGH COUNTY, FLORIDA AFFIDAVIT FOR SEARCH WARRANT IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA STATE OF FLORIDA COUNTY OF HILLSBOROUGH BEFORE ME,Lawrence Le?er in and for Hillsborough County, Florida, personally or by sworn attestation, came Hillsborough County Sheriff?s Of?ce who, being ?rst duly sworn, deposes and says: That the Af?ant is a citizen and resident the State of Florida, and that he has reason to believe and does believe that a certain cellular phone,located in Hillsborough County, Florida, described as follows, to-wit: White Red iPhone cellular telephone Model: A1 660 FCC ID: BCG-E3085A I IC: 57QC-E3085A Being the cellular phone owned or possessed by William John Montanez Date Of Birth: 07/07/1993 And there is now being stored on said Cellular iPhone certain evidence, to-witzimages, text messages, ?les, telephone numbers, call logs, graphic ?les, digital media and/or digital ?les, and any other media that can store digital ?les and/or digital media. Phone records, records of Internet Service Providers, E?mails and other electronic data, including but not limited to passwords telephone numbers, Emails, Instant messages or text message storage, computer images, computer programs and system documentation; documents ?les or any other computer data relating to passwords. Which can provide evidentiary value in proving a violation of the Laws of the State of Florida, to-wit: the Laws prohibiting: Possession of Cannabis Less Than 20 grams FSS Possession of Paraphernalia FSS and Possession of a Firearm During the Commission of a Felony FSS The warrant seeks the authority to compel the owner of a device who is reasonably believed by law enforcement to be a user/owner of the device to provide their password. Pursuant to State v. Stahl, 41 Fla. L. Weekly D2706 (Fla. 2nd DCA) the Second District Court of Appeal found that because the passcode combination was sought only for its content, and would not require the owner to acknowledge that the phone contained evidence of a crime, the passcode did not rise to the level of testimony within the protection of the Fifth Amendment. That the facts tending to establish the grounds for this application and the probable cause of af?ant believing that such facts exist are as follows: Input af?ant?s experience and any pertinent expertise. Your af?ant is currently assigned to the Hillsborough County Sheriffs Of?ce District Street Crimes Unit, and has been since November of 2016. This unit speci?cally conducts frequent narcotics and ?rearm related investigations. Your af?ant is currently a certi?ed Firearms Instructor and is pro?cient with the handling and recognizing of?rearms. Your af?ant has previously authored and executed multiple search warrants to date. Input probable cause On 06/21/2018, at approximately 1322 hours, your af?ant conducted a traf?c stop for a traf?c infraction. During the traf?c stop, the defendant (William Montanez) was contacted as he was the driver of the vehicle. During the traf?c stop, HCSO Canine Deputy C. Grecco (ABN #1971) arrived on scene with his certi?ed narcotics K9 'Joker'. K9 Joker conducted an open air narcotics sniff of the vehicle and provided a positive alert to the presence of narcotics. During a hand search of the vehicle, THC Oil vials, marijuana, and marijuana paraphernalia were located. A further search revealed a loaded black Glock 23 .40 caliber ?rearm (Serial in the glove box with a secondary loaded high capacity extended magazine next to it. The passenger of the vehicle during the traf?c stop (Ramon Montanez) was found to be a convicted Florida Felon. During the investigation, the defendantwas taken into custody for Possession of Controlled Substance (THC Oil), Possession of Cannabis Less Than 20 grams, Possession of Drug Paraphernalia, and Possession of a Firearm During the Commission ofa Felony. A search of the defendants person revealed two cellular iPhone telephones. Your af?ant attempted to turn the cellular phones off to place them into the defendants property, however upon holding the power button, a text message from an unknown subject, was displayed on the lock screen that said, did they ?nd it?" This text message was delivered after the original traf?c stop time, thus implicating the defendant sent a text message regarding items in the vehicle. Your af?ant has reason to believe evidentiary content is stored and saved on the two cellular phones pertaining to this investigation. Your af?ant requested the phone numbers and passcodes to both cellular telephones from the defendant after advising him on the intention to apply for a search warrant. The defendant refused multiple times to provide any pertinent information regarding the cellular telephones. WHEREOF, YOUR makes this af?davit and prays the issuance of a search warrant in due form of law for the search of the above described cellular phone for the said data/information, heretofore described, and for the seizure and safe keeping thereof, subject to the order of this Honorable Court, by the duly constituted of?cers of the law. Kalin Hall Hillsborough County Sheriffs Of?ce STATE OF FLORIDA) COUNTY OF HILLSBOROUGH) I am a law enforcement of?cer as de?ned in s. 943.10, Florida Statutes, and, pursuant to 5.117.10, Florida Statutes, I am authorized to administer oaths when engaged in the performance of of?cial duties.The foregoing instrument was acknowledged before me on this 22nd day of June 2018 by the individual whose name and signature appear above, and who is personally known to me and who did take an oath. Christopher Tuminella I?Iiusborough County Sheriff's Of?ce WITNESS my hand and seal this 22nd day of June 2018 fwwza?jwm 2018062214125300 Lawrence Le?er JUDGE IN AND FOR HILLSBOROUGH COUNTY, FLORIDA SEARCH WARRANT IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA IN THE NAME OF THE STATE OF FLORIDA: TO: THE SHERIFF OF Hillsborough County Sheriff?s Of?ce, FLORIDA OR ANY OF HIS LAWFUL DEPUTIES: Whereas, complaint on oath and in writing, supported by af?davit has been made before me, Judge Lawrence Le?er in and for Hillsborough County, Florida, by Kalin Hall Hillsborough County Sheriff?s Of?ce who says: that the Af?ant is a citizen and resident the State of Florida, and who has reason to believe and does believe that a certain cellular phone located in Hillsborough County, Florida, described as follows, to-wit: A black in color Metro PCS Apple iPhone Unknown Model/Serial Number. The cellular phone is currently in the custody of the Hillsborough County Sheriff?s Of?ce Evidence Section (ITEM TAG #691217?007). Being the cellular phone owned or possessed by William John Montanez Date Of Birth: 07/07/1993 And there is now being stored on said cellulartelephone certain evidence, to~witz images, text messages, ?les, telephone numbers, call logs, graphic ?les, digital media and/or digital ?les, and any other media that can store digital ?les and/or digital media. Phone records, records of Internet Service Providers, E-mails and other electronic data, including but not limited to passwords telephone numbers, Emails, Instant messages or text message storage, computer images, computer programs and system documentation; documents ?les or any other computer data relating to passwords. Which can provide evidentiary value in proving a violation of the Laws of the State of Florida, to-wit: the Laws prohibiting: Possession of Cannabis Less Than 20 grams FSS Possession ofDrug Paraphernalia FSS 893.1470), and Possession ofa Firearm During the Commission ofa Felony FSS That the facts tending to establish the grounds for this application and the probable cause of the Af?ant believing that such facts exist are contained in an af?davit for search warrant, sworn to before me on this date by Kalin Hall and it appears to the Court that the Af?ant is a reputable citizen ofthe State of Florida, and thatthe facts set forth in said af?davit show and constitute probable cause forthe issuance of this warrant and the Court being satis?ed of the existence of said grounds set forth in said application, orthat there is probable cause to believe in their existence. The af?davitfor search warrant made by Kalin Hall is hereby incorporated by reference and made a part ofthis search warrant as if repeated in full, and a copy is attached. THE COURT FURTHER FINDS: Law enforcement personnel are authorized to direct and compel any person who is reasonably believed bylaw enforcementto contain knowledge of a password(s) to the device named in this search warrant, to provide such password(s) in orderto allow access to search the device pursuant to this search warrant. NOW THEREFORE, you are commanded with such proper and necessary assistance as may be necessary, in the day-time or in the night-time, or on Sunday, as the exigencies of the occasion may demand or require, to enter and search the aforesaid cellular phone forthe data/information described in this warrant: and if the same or any part thereof be found, you are hereby authorized to seize and secure same. giving proper receipt therefore and delivering a duplicate copy on said cellular phone, and making a return of your doings under this warrant within ten (10) days of the date hereof, and you are further directed to bring said data/information so found before any County or Circuit Judge having jurisdiction of this offense to be disposed of according to law. WITNESS my hand and seal this 22nd day of June 2018 Womb/o 2018062214100383 Lawrence Le?er JUDGE IN AND FOR HILLSBOROUGH COUNTY, FLORIDA AFFIDAVIT FOR SEARCH WARRANT IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA STATE OF FLORIDA COUNTY OF HILLSBOROUGH BEFORE ME,Lawrence Le?er in and for Hillsborough County, Florida, personally or by sworn attestation, came Hillsborough County Sheriffs Of?ce who, being ?rst duly sworn, deposes and says: That the Af?ant is a citizen and resident the State of Florida, and that he has reason to believe and does believe that a certain cellular phone,located in Hillsborough County, Florida, described as follows, to-wit: A black in color Metro PCS Apple iPhone Unknown Model/Serial Number. The cellular phone is currently in the custody of the Hillsborough County Sheriff?s Of?ce Evidence Section (ITEM TAG #691217-007). Being the cellular phone owned or possessed by William John Montanez Date Of Birth: 07/07/1993 And there is now being stored on said cellular telephone certain evidence, to-wit:images, text messages, ?les, telephone numbers, call logs, graphic ?les, digital media and/or digital ?les, and any other media that can store digital ?les and/or digital media. Phone records, records of lntemet Service Providers, E?mails and other electronic data, including but not limited to passwords telephone numbers, Emails, Instant messages or text message storage, computer images, computer programs and system documentation; documents ?les or any other computer data relating to passwords. Which can provide evidentiary value in proving a violation of the Laws of the State of Florida, to-wit: the Laws prohibiting: Possession of Cannabis Less Than 20 grams FSS Possession of Drug Paraphernalia FSS and Possession of a Firearm During the Commission of a Felony FSS The warrant seeks the authority to compel the owner of a device who is reasonably believed by law enforcement to be a user/owner of the device to provide their password. Pursuant to State v. Stahl, 41 Fla. L. Weekly D2706 (Fla. 2nd DCA) the Second District Court of Appeal found that because the passcode combination was sought only for its content, and would not require the owner to acknowledge that the phone contained evidence of a crime, the passcode did not rise to the level of testimony within the protection of the Fifth Amendment. That the facts tending to establish the grounds for this application and the probable cause of af?ant believing that such facts exist are as follows: Input af?ant's experience and any pertinent expertise. Your af?ant is currently assigned to the Hillsborough County Sheriffs Of?ce Districtl Street Crimes Unit, and has been since November of 201 6. This unit speci?cally conducts frequent narcotics and ?rearm related investigations. Your af?ant is currently a certi?ed Firearms Instructor and is pro?cient with the handling and recognizing of ?rearms. Your af?ant has previously authored and executed multiple search warrants to date. Input probable cause On 06/21/2018, at approximately 1322 hours, your af?ant conducted a traf?c stop for a traf?c infraction. During the traf?c stop, the defendant (William Montanez) was contacted as he was the driver of the vehicle. During the traf?c stop, HCSO Canine Deputy C. Grecco (ABN #1971) arrived on scene with his certi?ed narcotics K9 'Joker'. K9 Joker conducted an open air narcotics sniff of the vehicle and provided a positive alert to the presence of narcotics. During a hand search of the vehicle, THC Oil vials, marijuana, and marijuana paraphernalia were located. A further search revealed a loaded black Glock 23 .40 caliber?rearm (Serial in the glove box with a secondary loaded high capacity extended magazine next to it. The passenger of the vehicle during the traf?c stop (Ramon Montanez) was found to be a convicted Florida Felon. During the investigation, the defendant was taken into custody for Possession of Controlled Substance (THC Oil), Possession of Cannabis Less Than 20 grams, Possession of Drug Paraphernalia, and Possession of a Firearm During the Commission of a Felony. A search of the defendants person revealed two cellular iPhone telephones. Your af?ant attempted to turn the cellular phones off to place them into the defendants property, however upon holding the power button, a text message from an unknown subject, was displayed on the defendants secondary cellular phone lock screen that said, did they ?nd it?" This text message was delivered after the original traf?c stop time, thus implicating the defendant sent a text message regarding items in the vehicle. Your af?ant has reason to believe evidentiary content is stored and saved on the two cellular phones pertaining to this investigation. Your af?ant requested the phone numbers and passcodes to both cellular telephones from the defendant after advising him on the intention to apply for a search warrant. The defendant refused multiple times to provide any pertinent information regarding the cellular telephones. WHEREOF, YOUR AFFIANT makes this af?davit and prays the issuance of a search warrant in due form of law for the search of the above described cellular phone forthe said data/information, heretofore described, and for the seizure and safe keeping thereof, subject to the order of this Honorable Court, by the duly constituted of?cers of the law. Kalin Hall Hillsborough County Sheriff's Of?ce AFFIANT STATE OF FLORIDA) COUNTY OF HILLSBOROUGH) I am a law enforcement of?cer as de?ned in s. 943.10, Florida Statutes, and, pursuant to 3.117.10, Florida Statutes, I am authorized to administer oaths when engaged in the performance of of?cial duties.The foregoing instrument was acknowledged before me on this 22nd day of June 2018 by the individual whose name and signature appear above, and who is personally known to me and who did take an oath. Christopher Tuminella I-lillsborough County Sheriff's Of?ce WITNESS my hand and seal this 22nd day of June 2018 fwea 14 2018062214100383 Lawrence Le?er JUDGE IN AND FOR HILLSBOROUGH COUNTY, FLORIDA State v. Stahl Cases I Westlaw Page 1 of 12 We've updated our Privacy Statement. Before you continue. please read our new Privacy Statement and familiarize yourself with the terms Declined to Extend by United States Robinson, A.F.Ct.Crim App . May 15, 2017 Original Image of 206 So 3d 124 (PDF) State v. Stahl 206 So.3d 124 District Court oprpeal of Florida. Second 41 Fla Weeky D2706 (Approx 16 pages) Second District. STATE of Florida, Petitioner, V. Aaron STAHL, Respondent. Case No. Opinion ?led December 7, 2016 Synopsis Background: Defendant was charged with video voyeurism. The Circuit Court. Sarasota County. Frederick P. Mercurio, J., denied state's motion to compel defendant to produce passcode to unlock his cell phone that was the subject of an unchallenged search warrant. State appealed. then converted the appeal to a petition for certiorari review. Holdings: As matters of apparent ?rst impression, the District Court oprpeaI, Black. J.. held that: 1 requiring defendant to produce passcode did not compel defendant to communicate information that had testimonial signi?cance; 2 state established with reasonable particularity that a passcode existed for phone; 3 state established with reasonable particularity that defendant possessed the passcode; and 4 passcode was self-authenticating. Petition granted and order quashed. Kelly. J., concurred in result only. West Headnotes (22) Change View 1 Criminal Law Right of Prosecution to Review Order denying state's motion in video voyeurism prosecution to compel production of passcode for defendant's cell phone. for which state had already obtained an unchallenged search warrant, signi?cantly impaired the state's ability to prosecute, which could not be remedied via postjudgment appeal. and thus state's appeal of the order would be reviewed under writ of certiorari standard. the court's order denied the state the ability to execute an unchallenged search warrant. and, absent photographic or video evidence was ?lming under the victim's skirtr state's case would otherwise rest solely on the victim's statements and store video surveillance. Fla App 9 140(c)(1) 2 Criminal Law - Right of Prosecution to Review Where the State has met the jurisdictional requirements fora writ of certiorari, Le. a ruling that signi?cantly impairs the State's ability to prosecute which could not be remedied via postjudgment appeal, and has established that the trial court violated a clearly established principle of law. issuance of a writ of certiorari is an apt remedy. 1 .. 6/27/2018 State v. Stahl I Cases Westlaw Page 2 of 12 3 Witnesses a: Self-lncrimination The privilege against self-incrimination protects a person only against being incriminated by his own compelled testimonial communications. S. Const Amend. 5. 1 Case that cutes this headnote 4 Witnesses Self-Incriminalion The word ?witness.? in the text of the Fifth Amendment prohibiting one from being compelled to be a witness against himself. limits the relevant category of compelled incriminating communications to those that are testimonial in character. Const. Amend 5. 5 Witnesses r; Self-Incrimznation In order to be testimonial. an accused's communication must itself. explicitly or implicitly. relate a factual assertion or disclose Information. only then is a person compelled to be a witness against himself. as prohibited by the Fifth Amendment Const Amend 5. 5 Witnesses Self-Incnmination in order for a defendant to properly invoke his Fifth Amendment privilege. he needs to establish (1) compulsion. (2) a testimonial communication or act. and (3) incrimination US Const Amend 5 7 Witnesses Determination of right to privilege Once an individual has invoked his privilege against self-incrimination. it becomes the duty of the trial court to determine whether there is a reasonable basis for the assertion of the privilege and whether the privilege has been invoked in good faith. US. Const Amend 5. a Witnesses Privilege as to production of documents Testimonial elements of the production prong of the test for whether a defendant has properly invoked his Fifth Amendment privilege against self-incrimination include (1) the existence of the documents. (2) the accused's possession or control of the documents. and (3) the authenticity of the documents Const Amend. 5 9 Witnesses . Self-Incrim?nation The dif?cult question whether a compelled communication is testimonial for purposes of applying the Fifth Amendment privilege against self-incrimination often depends on the facts and circumstances of the particular case. Const Amend. 5. 1o Witnesses x" Self-lncriminatton It is not enough when analyzing a claim of Fifth Amendment privilege against self- incrimination that the compelled communication I5 sought for its content; the content itself must have testimonial signi?cance. S. Const. Amend 5. 11 Witnesses Privilege as to production of documents Requiring defendant who was charged with video voyeurism to produce the passcode to unlock his cell phone did not compel defendant to communicate information that had testimonial signi?cance under the Fifth Amendment's protection against self-incrimination, providing the passcode would not be an acknowledgment that the phone contained evidence of video voyeurism. and the state had a warrant to search the phone S. Const Amend 5 12 Criminal Law Use of Ethence Obtained by Means of Statement. Confession. or .. 6/27/2018 State v. Stahl Cases Westlaw Page 3 of 12 Compelling a suspect to make a nonfactual statement that facilitates the production of evidence for which the State has otherwise obtained a warrant based upon evidence independent of the accused's statements linking the accused to the crime does not offend the Fifth Amendment privilege against self- incrimination. S. Const. Amend. 5. 13 Criminal Law Use of Evidence Obtained by Means of Statement, Confession. or Admission If a compelled statement is not testimonial and for that reason not protected by the Fifth Amendment privilege against self-incrimination. it cannot become so because it will lead to incriminating evidence. Const Amend 5. 14 Witnesses Privilege as to production of documents The testimonial communication implicit in the act of production of documents does not rise to the level of testimony within the protection against self-incrimination under the Fifth Amendment where the State has established. through independent means. the existence, possession. and authentiCIty of the documents. Const Amend. 5 15 Witnesses f? Privalege as to production of documents Under the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination. the act of production of evrdence does not compel a defendant to be a witness against himself Const Amend 5 1 Case that sites this headnote 16 Witnesses Privilege as to production of documents In order for the foregone conclusion exception of the Fifth Amendment privilege against self-incrimination to apply. the State must show with reasonable particularity that. at the time it seeks the act of production. it already knows the evidence sought exists. the evidence is in the possession of the accused. and the evidence is authentic. US. Const. Amend. 5. 1 Case that Cites this headnote 17 Witnesses Privilege as to production of documents Although the State need not have perfect knowledge of the requested evidence, it must know. and not merely infer. that the evidence exists, is under the control of defendant, and is authentic in order for the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination to apply. US. Const. Amend 5. 1 Case that Cites this headnote 18 Witnesses Privilege as to production of documents Where the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination applies to a requested act of production, the question is not of testimony but of surrender. US. Const. Amend. 5. 1 Case that Cites this headnote 19 Witnesses Priviiege as to production of documents State established with reasonable particularity the existence of a cell phone's passcode that defendant did not want to produce. as required under the foregone conclusion exception to the Fifth Amendment's protection against self- incrimination. where the state established that the phone, which was subject of an unchallenged search warrant, could not be searched without entry of a passcode. US. Const. Amend. 5. 20 Witnesses Privilege as to production of documents State established with reasonable particularity that defendant possessed a cell phone's passcode that he did not want to produce. as required under the foregone conclusion exception to the Fifth Amendment's protection against self- 6/27/2018 State v. Stahl Cases Westlaw Page 4 of 12 incrimination. where cell phone carrier records and defendant's own admission established that the phone. which was subject of an unchallenged search warrant. belonged to him. Const Amend 5 21 Witnesses Privilege as to production of documents Cell phone's passcode that defendant did not want to produce was self- authenticating. satisfying the ?authenticity" element of the foregone conclusion exception to the Fifth Amendment's protection against self-incrimination. where the phone, which was subject of an unchallenged search warrant. was accessible once the passcode was entered. US. Const. Amend 5. 1 Case that cites this headnote 22 Witnesses :34 Privilege as to production of documents If the phone or computer is accessible once the passcode or key has been entered. the passcode or key is authentic under the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination. Const Amend. 5. 1 Case that cries this headnote ?12? Petition for Writ of Certiorari to the Circuit Court for Sarasota County; Frederick P. Mercurio. Judge. Attorneys and Law Firms Pamela Jo Bondi. Attorney General. Tallahassee. and Bilal A. Faruqui. Assistant Attorney General. Tampa. for Petitioner. Howard L. Dimmig. II. Public Defender. and Tosha Cohen. Assistant Public Defender. Bartow. for Respondent. Opinion BLACK, Judge. The State seeks a writ of certiorari quashing the trial court's order denying the State's motion to compel the production of the passcode to unlock Aaron Stahl's cellphone We grant the petition and quash the order. Background Stahl was charged with video voyeurism in violation of section Florida Statutes (2014). a third-degree felony. The probable cause af?davit for Stahl's arrest stated that the victim was shopping in a store when she observed a man crouching down with what she believed was a cellphone in his hand. She saw that the screen of the cellphone was illuminated. She then observed the man with his arm extended. holding the cellphone under her skirt. The victim confronted him, and the man told her that he had dropped his cellphone While yelling for assistance. the victim attempted to detain the man. but he was able to free himself and ?ee the store before assistance arrived. Store surveillance video con?rmed that the man crouched down with an illuminated devrce in his hand. moving it toward the victim's skirt. It also showed the man exit the store and get into a vehicle in the parking lot. Using the vehicle's license plate number. law enforcement identi?ed Stahl as the registered owner of the vehicle and obtained his driver's license photo. Law enforcement positively identified Stahl as the man in the surveillance video. Stahl was arrested but a cellphone was not found on his person. During an interview "128 with law enforcement. Stahl admitted to being in the store, denied taking inappropriate images. and verbally consented to a search of his celfphone. which be identi?ed as an Apple iPhone 5 located in his residence. After of?cers retrieved the cellphone from Stahl's residence. Stahl withdrew his consent to search the phone. The next day law enforcement sought a search warrant for the contents of Stahl's cellphone. The search warrant af?davit described the phone as an Apple iPhone 5 with a cracked screen and a piece of glass missing from the top right corner. It also listed the phone number associated with the phone and the service provider. The search warrant af?davit provided that the victim believed the device in Stahl's hand to be a cellphone and that when 6/27/201 8 State v. Stahl Cases Westlaw she confronted Stahl. he told the victim he had dropped his cellphone It further provided that Stahl initially consented to a search of his iPhone 5 and that he con?rmed the phone number and provided the location of the phone A search warrant was issued for the contents of the described Apple iPhone 5. However. the State was unable to execute the warrant and view the contents of the phone because Stahl?s cellphone is passcoded and he refused to give law enforcement the passcode. As a result. the State ?led a motion to compel production of the passcode The State alleged that without compelling Stahl to provide the passcode. law enforcement's only option would be to send the phone to Apple to obtain the passcode. The State also alleged that there is no Fifth Amendment implication in compelling Stahl to give of?cers the passcode in this case. 3 Stahl did not ?le any response to the motion. At the hearing on the State's motion to compel. neither side presented testimony or evidence; only argument was presented. In denying the motion. the trial court found that the Fifth Amendment privilege against self-incrimination applied such that Stahl could not be compelled to produce the passcode. The court determined that production of the passcode was testimonial and that the State had not suf?ciently established that the foregone conclusion doctrine applied. The State appealed the order denying its motion. contending the order was reviewable pursuant to Florida Rule of Appeliate Procedure permitting State appeals from orders suppressing evidence obtained by search and seizure. 3 '129 In response to an order to show cause why this case should not be dismissed as from a non?nal. nonappealable order. the State contended that if not appealable as an order suppressing evidence. the order is reviewable by petition for writ of certiorari. This court subsequently issued an order converting the appeal to a petition for writ of certiorari and directing the parties to address the certiorari standard. Il. Standard of Review 1 2 The ability of the district courts of appeal to entertain [S]tate petitions for certiorari to review pretrial orders in criminal cases is important to the fair administration of criminal justice in this state. Otherwrse. there Will be some circumstances in which the [S]tate is totally deprived of the right of appellate review of orders which effectively negate its ability to prosecute If a non?nal order does not involve one of the subjects enumerated in Florida Rule of Appellate Procedure 9 140(c)(1). the [S]tate would not be able to correct an erroneous and highly prejudicial ruling. Under such circumstances. the tate could only proceed to trial with its ability to present the case signi?cantly impaired. Should the defendant be acquitted. the principles of double jeopardy prevent the [S]tate from seeking review; thus. the prejudice resulting from the earlier order would be irreparable. State v. Pettis. 520 So 2d 250. 253 (Fla. 1988). Where the State has met the jurisdictional requirements fora writ of certiorari?a ruling that signi?cantly impairs the State's ability to prosecute which could not be remedied via postjudgment appeal?and has established that the trial court violated a clearly established principle of law. issuance of a writ of certiorari is ?an apt remedy.? see also State v. Fernandez. 141 So.3d 1211. 1216 (Fla. 2d DCA 2014) (?[?ijhe trial court's pretrial order would leave the State without an effective remedy and cause irreparable harm. Accordingly. this is a case where certiorari review is an 'apt remedy.? (quoting Pettis. 520 So.2d at 253)); State v. Sandoval. 125 So.3d 213. 215 (Fla 4th DCA 2013) (?To obtain certiorari relief from a pretrial evidentiary ruling. the [S]tate must show that the ruling was a violation of a clearly established principle of law resulting in a miscarriage Here. the order is not appealable pursuant to rule and the State cannot appeal an acquittal. Pettis. 520 So.2d at 253. Stahl was charged with the third-degree felony of video voyeurism by ?intentionally usjing] an imaging device to secretly view. broadcast. or record under or through the clothing being worn by another person. without that person's knowledge and consent. for the purpose of viewing the body of. or the undergarments worn by. that person" for his "amusement. entertainment. sexual arousal. grati?cation. or pro?t." A necessary element of the crime is the use of an imaging device, de?ned as ?any mechanical. digital. or electronic viewing device; still camera; camcorder; motion picture camera; or any other instrument. equipment. or format capable of recording, storing, or transmitting visual images of another person.? Absent photographic or video evidence of the crime. the State's case would rest solely on the victim's statements and the video surveillance depicting .. Page 5 of 12 6/27/2018 State v. Stahl Cases Westlaw Page 6 of 12 Stahl moving a device in his hand *130 toward the victim's skirt. It is apparent that the trial court's ruling serves as a serious impediment to the State's case if it does not altogether destroy it. The court's order denies the State the ability to execute an unchallenged search warrant. effectively denying the State access to what is likely to be direct evidence establishing elements of the charged offense. State v. Crumbley 143 So.3d 1059, 1065 ?66 (Fla. 2d DCA 2014) ("This appeal involves an order that prevents the State from developing its evidence in the criminal case The order not only suppresses the evidence. it seals the information so that the State can never know what evidence is contained within the sealed documents?). Ill. The hearing At the hearing on the State's motion. the court began by asking various questions. The court inquired ?How do I know that there was a picture taken?? and ?What evidence are you asking me to rely on that gives me probable cause to believe a picture was taken?? The State responded that a warrant had been issued for the contents of the phone and probable cause was ?not the issue at this point" but that based on the circumstances. the State believed there were photographs or video taken. based on the surveillance video and the victim's statements.? The State then set forth why the Fifth Amendment privilege against self- incrimination is not implicated. identifying the three requirements necessary for a defendant to successfully invoke the privilege. The State argued that there was no difference between the court ?nding probable cause to issue the warrant and compelling Stahl to assist the State in "opening up" the phone. The State further argued that law enforcement's forensic expert had advised that he could not gain access to the phone because of the passcode and that it he tried to enter every possible combination the phone could permanently lock and potentially erase all of the contents. 5 The court stated that while probable cause existed for the search warrant. the State did not know ?for sure" whether a photo or video was on the phone. The court was incredulous that this was a case of ?rst impression. but the State maintained that a dearth of case law existed. The court asked whether the State knew if there was additional security or on the phone or the portion of the phone that stores photographs. Attempting to focus the issue on whether the giving of the passcode itself is testimonial. the State cited l_n re Grand Juryr Subpoena Duces Tecum_D._at_ed 2011. 670 3d 1335 (11th Cir 2012]. for the that production of the passcode would not be testimonial under the foregone conclusron doctrine?where the location. existence. and authenticity of the requested information are known with reasonable particularity. The State went so far as to agree to give Stahl immunity for the act of providing the passcode. When pressed by the '131 court, the State conceded that "in the most technical sense" the court would be forcing Stahl to ?use the contents of his mind" in compelling him to provide the passcode. Stahl argued that the State did not establish the three prongs of the foregone conclusion doctrine. He contended that the State failed to establish location because it was unable to prove that the phone in the State's possession is the phone Stahl allegedly had at the store He argued that the phone in the State's possession came from a home in which multiple people lived and that the State presented no evidence to show that the phone was Stahl's or that it was the phone from the store surveillance. In reply. the State argued that it did not have to meet the foregone conclusion elements until it had been determined that the Fifth Amendment privilege against self-incrimination was applicable, The State reiterated its position that the privilege is not implicated because providing the passcode is not testimonial. in its written order denying the State's motion. the court found that production of the passcode would require the use of the contents of Stahl's mind and was therefore testimonial. The court then found that the State had not satis?ed the reasonable particularity standard of the foregone conclusion doctrine. IV. Analysis A. The privilege 3 4 5 The Fifth Amendment to the United States Constitution provides in pertinent part that person shall be compelled in any criminal case to be a witness against Amend. V. U.S. Const. This privilege against self-incrimination ?protects a person only against being incriminated by his own compelled testimonial communications." Doe v. United States. 487 U.S. 201, 207. 108 2341. 101 L.Ed.2d 184 (1988) (quoting Fisher v. United States. 425 US. 391. 409. 96 1569. 48 L.Ed.2d 39 (1976)); see also Kessler v. State. 991 So 2d 1015. 1021 (Fla. 4th DCA 2008) (?The Fifth Amendment 1 6/27/20] 8 State v. Stahl Cases Westlaw Page 7 of 12 privilege protects an accused from being compelled to testify against himself. or othenivise provide the state with evidence of a testimonial or communicative nature.? (citing Schmerber v. California, 384 US. 757, 763. 86 Ct 1826. 16 L.Ed.2d 900 (1966?). ?The word 'witness' in the constitutional text limits the relevant category of compelled incriminating communications to those that are ?testimonial' in character." United States Hubbell. 530 U.S. 27. 34, 120 Ct 2037. 147 L.Ed.2d 24 (2000); see also Heddon v. State. 766 So.2d 1262, 1263 (Fla. 2d DCA 2001) (stating that the privilege against self-incrimination ?only precludes forcing an accused to produce incriminating testimonial communications?). order to be testimonial, an accused's communication must itself, explicitly or implicitly. relate a factual assertion or disclose information. Only then is a person compelled to be a 'witness' against himself.? E, 487 US. at 210. 108 2341 (footnote omitted). 6 7 In order for Stahl to have properly invoked his Fifth Amendment privilege he needed to establish three things: (1) compulsion, (2) a testimonial communication or act. and (3) incrimination. in re Grand Jug Subpoena Duces Tecum Dated Mar. 25, 2011. 670 3d at 1341 (in re Grand Jug). ?Once an individual has invoked his privilege against self- incrimination, it becomes the duty of the trial court to determine whether there is a reasonable basis for the assertion of the privilege and whether the privilege has been invoked in good faith." ?132 St. George v. State, 564 So.2d 152. 155 (Fla 5th DCA 1990). Because the State does not contend otherwise. for purposes of this opinion, we presume that Stahl invoked the privilege.a Although not expressly stated. it is apparent from the record and from the State's ?lings with this court that the State concedes that producing the password to the phone would be incriminatory. Commonwealth v. Gelfgatt. 468 Mass 512 11 3d 505. 612 (2014) entry of the key or password presumably would be incriminating because 'it would furnish the Government with a link in the chain of evudence leading to {the defendant's] indictment' (second alteration in original) (quoting 2341)). It also appears that the State has conceded that producing the password would be compelled Within the meaning of the privilege. Thus, the crux of the State's argument below, and its argument as to the trial court's departure from the essential requirements of the law, is whether the State sought protected testimony from Stahl. B. Act of Production 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. ?e Fisher. 425 at 410. 96 1569. The courts that have addressed the Fifth Amendment implications for providing keys and passcodes have largely applied the act-of-production doctrine and the foregone conclusion exception. See. Sec. Exch. Comm'n v. Huang, No. 15?269. 2015 WL 5611644, *1 (ED. Penn Sept. 23, 2015); United States v. Fricosu, 841 Supp 2d 1232, 1235 (D. Col. 2012); In re Grand Jury Subpoena to Boucher (In re Boucher), 2 2009 WL 424718, '2?3 (D. Vt. Feb. 19. 2009); Geifgatt, 11 at 612; Commonwealth .Ba_ust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014). But see United States v. 823 F.Supp.2d 665. 669 (ED. Mich. 2010) (concluding that providing the *133 password was testimony protected by the privilege against self-incrimination). 8 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. Hubbeii, 530 at 36 120 2037. It bears repeating that the information sought by the State. that which it would require Stahl to provide, is the passcode to Stahl's iPhone?the iPhone that the State had a warrant to search based on probable cause that the phone was used in Stahl's commission of the crime of video voyeurism. The State has not asked Stahl to produce the photographs or videos on the phone. 9 But the fact that the State sought production of the passcode itself and not production of the contents of Stahl's phone does not resolve the issue before us because the State does not contend the court departed from the requirement of law by applying the act-of?production doctrine. 9 10 ?The dif?cult question whether a compelled communication is testimonial for purposes of applying the Fifth Amendment often depends on the facts and circumstances of the partiCUIar case." E, 487 US, at 214?15, 108 2341. Here, the trial court rested its .. 6/27/2018 State v. Stahl Cases Westlaw Page 8 of 12 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. ?gg. 530 S. at 43. 120 2037; 487 US at 211 108 2341; l_n re Grand Jug. 670 3d at 1345; 823 Supp.2d at 689. And although the trial court correctly quoted the Eleventh Circuit's statement in In re Grand Jug. 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 D_o_e?that the contents of the accused's mind must be ?extensive[ly] use[d]" in creating the response. Hubbell. 530 US. at 43. 120 2037. or must ?relat[e] him to the offense." *134 pg. 487 US. at 213.. 108 2341 ?0 That is. ?it is not enough that the compelled communication is sought for its content. The content itself must have testimonial signi?cance.? E. 487 US. at 211 MO. 108 2341 (emphaSIs added) (?rst citing Fisher. 425 US. at 408. 96 1569; then citing Gilbert v. Catifornia. 388 263. 267. 87 Ct. 1951. 18 L.Ed.2d 1178 (1967); and then citing United States M. 388 218. 222. 87 1926. 18 L.Ed.2d 1149 (1967)). 11 12 13 In this case. the communication was sought only for its content and the content has no other value or signi?cance. By providing the passcode. Stahl would not be acknowledging that the phone contains evidence of video voyeurism. 487 at 215. 108 Ct 2341. 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. Providing the passcode does not ?betray any knowledge [Stahl] may have about the circumstances of the offenses" for which he is charged. Sj? id_. at 219. 108 2341 (Stevens. J.. dissenting). It does not implicitly "relate a factual assertion or disclose information." gig. 487 S. at 210. 215, 108 2341. Thus. "compelling a suspect to make a nonfactual statement that facilitates the production of evidence" for which the State has otherwise obtained a warrant based upon evidence independent of the accused's statements linking the accused to the crime does not offend the privilege. mil. at 213 n.11. 108 2341. "If a compelled statement is 'not testimonial and for that reason not protected by the privilege. it cannot become so because it will lead to incriminating evidence.? (Q at 208?09 6 108 2341 (quoting In re Grand Jug; Subpoena. 826 F.2d 1166, 1172 n.2 (2d Cir. 1987) (Newman. J.. concurring?. The trial court's reliance solely on the passcode being the contents of Stahl's mind was a departure because the standard requires something more. 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." 487 US. at 219. 108 2341 (Stevens. J.. dissenting). is another often repeated quote. See. Hubbell. 530 US. at 43. 120 2037; 487 US. at 210 n.9, 108 2341; t_n re Grand Jug. 670 F.3ct at 1345; 823 F.Supp.2d at 669. Despite the many cases referencing the quote. we have found none that provide details of "surrender [ing] *135 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 of?cer the combination. More importantly. we question the continuing viability of any distinction as technology advances. Fisher. 425 US. at 407. 96 1569 (?Several of Boyd: v. United States. 116 US. 616. 6 524. 29 746 (1886) 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 individuats who passcode protect their iPhones with letter and number combinations than to individuals who use their ?ngerprint as the passcode. Compelling an individual to place his ?nger on the iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence. not unlike being compelled to provide a blood sample or provide a handwriting exemplar. Hubbell. 530 US. at 35. 120 2037 (and cases cited therein); see also M. 89 Va. Cir. 267 at ?2 C. Foregone Conclusion 14 15 However. even the testimonial communication implicit in the act of production does not rise "to the level of testimony within the protection of the Fifth Amendment" where the State has established. through independent means. the existence. possession. and authenticity of the documents. Fisher1569. That is. by implicitly admitting the existence of the evidence requested and that it is in the accused's possession the accused ?adds little or nothing to the sum total of the Government's information"; the information provided is a foregone conclusion. ?In essence. under the 'toregone 6/27/20] 8 State v. Stahl Cases Westlaw Page 9 of 12 conclusion' exception to the Fifth Amendment privilege. the act of production does not compel a defendant to be a witness against himself." Gelfgatt. 11 at 615. 16 17 18 In order for the foregone conclusion doctrine to apply. the State must show with reasonable particularity that. at the time it sought the act of production, it atready knew the evidence sought existed. the evidence was in the possession of the accused. and the evidence was authentic. In re Grand Jug. 670 F.3d at 1344. ?3 Although the State need not have ?perfect knowledge? of the requested evidence. it "must m. and not merely my that *136 the evidence exists. is under the control of defendant. and is authentic. United States v. Greenfield. 831 F.3d 106, 116 (2d Cir.2016). Where the foregone conclusion exception applies. "[t]he question is not of testimony but of surrender." m. 425 US. at 411. 96 1569 (quoting In re Harris. 221 US. 274. 279. 31 Ct. 557. 55 732 (1911)). 19 20 21 22 To know whether providing the passcode implies testimony that is a foregone conciusion. the relevant question is whether the State has established that it knows with reasonable particularity that the passcode exists. is within the accused's possession or control. and is authentic. In re Boucher. 2009 WL 424718 at *3 (?The Government thus knows of the existence and location of the 2 drive and its ?les." (emphasis added?. But see Baust, 89 Va. Cir. 267 (?Contrary to the Commonwealth's assertion. the password is not a foregone conclusion because it is not known outside of Defendant's mind." (emphasis added?. The question is not the State's knowledge of the contents of the phone; the State has not requested the contents of the phone or the photos or videos on Stahl's phone. gr. In re Grand Jury. 670 3d at 1348?47 (concluding that ?[n]othing in the record before us reveals that the Government knows whether any files exist and are located on the hard drives" where the Government requested production of the contents of the hard drives). But see Mg. 2015 WL 5611644 at ?3 (stating that. where the SEC sought passcodes and not the contents of the smartphones. ?the SEC proffers no evrdence rising to a 'reasonable particularity' any of the documents it alleges reside in the passcode protected phones." (emphasis added?. The State established that the phone could not be searched without entry of a passcode. A passcode therefore must exist. It also established. with reasonable particularity based upon cellphone carrier records and Stahl's identi?cation of the phone and the corresponding phone number. that the phone was Stahl's and therefore the passcode would be in Stahl's possession. That leaves only authenticity And as has been seen. the act of production and foregone conclusion doctrines cannot be seamlessly applied to passcodes and keys. If the doctrines are to continue to be applied to passcodes. keys. and the like. we must recognize that the technoiogy is self- authenticating?no other means of authentication may exist. 9L Green?eld. 831 3d at 118 (recognizing ?[i]mplicit authentication" of documents (alteration in original) (quoting United States v. Fox. 721 F.2d 32. 38 (2d Cir, 1983?). If the phone or computer is accessible once the passcode or key has been entered. the passcode or key is authentic. V. Conclusion The trial court departed from the requirements of the law by considering only part of the standard used to determine whether a communication is testimonial and by burdening the State with proving the existence of incriminating content on Stahl's phone when that was not at issue. It further departed by requiring the State to establish existence beyond the reasonable particularity standard. Unquestionably. the State established. with *137 reasonable particularity, its knowledge of the existence of the passcode. Stahl's control or possession of the passcode. and the self-authenticating nature of the passcode. ?5 S_ee Boucher. 2009 WL 424718 at This is a case of surrender and not testimony. Petition granted; order quashed. SALARIO. J.. Concurs. KELLY. J.. Concurs in result only All Citations 206 So.3d 124. 41 Fla L. Weekly D2708 Footnotes 1 The State contended that sending the phone to Appte w0uld create chain of custody concerns because it did not ?know who would have It at the manufacturer. what they would have to do to get into it" and that timeliness 1 6/27/2018 State v. Stahl Cases Westlaw Page 10 of 12 was an issue because the manufacturer indicated that the phone would be logged in to the system, only worked on after receipt of a court order, and then shipped back. At the time the State ?led its motion. it was known that devices running certain versions of Apple's operating system would permanently lock and potentially erase all of the device's content after ten failed attempts to enter the passcode. but it was unknown that all devices running and later versions. Apple will not perform data extractions in response to government search warrants because the files to be extracted are protected by an key that is tied to the user?s passcode. which Apple does not possess." Privacy, Apple Inc.. information-requests! (last visited Oct. 20, 2016). Unlike In re Order Regurring Aggie. Inc to Assist in the Execution of a Search Warrant Issued by this Court. 149 F.Supp.3d 341 (ED. NY. 2016), the State is apparently unable to determine what is installed on Stahl's phone. 2 Nothing in our record establishes whether Stahl invoked his Fifth Amendment privilege against self-incrimination or the State preemptively raised the issue. amend. Vr US. Genet. 3 Because a warrant has been issued allowing the State to search Stahl's phone. the order denying the motion to compel is more akin to an order suppressing evidence than to an order denying discovery. 9L State Isaac 696 So.2d 813, 813 (Fla. 2d DCA 1997); State v. Foley. 193 So.3d 24. 26 (Fta 3d DCA 2016). 4 The trial court's focus on probable cause was misplaced. The State had a search warrant for the contents of the phone. Stahl has not challenged the validity or execution of that warrant. The only issue before the court was whether it could compel Stahl to provide the passcode. The State made no mention of whether it had attempted to compel Stahl to unlock the phone using his ?ngerprint. At least one court has held that compelling a witness to use his ?ngerprint to unlock or access his cellphone is not testimonial. Commonwealth v. Baust, 89 Va. Cir. 267. 2014 VVL 10355635 (Va. Cir. Ct. 2014). Nor has the State attempted to compel Stahl to produce the contents of the phone without divulging the passcode. Grand Jury Subpoena Duces Tecum Dated Mar. 25. 2011. 670 3d 1335 (11th Ct! 2012). 6 Although the transcript of the proceedings below makes it clear that the court did not require Stahl to establish the three components of the privilege but rather assumed the privilege applied and placed the burden on the State to rebut or overcome the claim. we recognize that the somewhat unusual procedural posture in which the issue arose likely caused this burden shift. State v. Mitrani, 19 Solid 1065, 1068 (Fla. 5th DCA 2009) (?If a witness rightfully invokes the privilege against self-incrimination. the State may overcome the claim of privilege In re Grand Jug, 670 F.3d at 1341 (?An individual must show three things to fall within the ambit of the Fifth Amendment Despite this apparent error. the State does not raise the burden shift as a basis to grant certiorari relief. 7? We do not believe it is at all clear that producing the password is compelted within the meaning of the privilege because it is a ?settled proposition that a person may be required to produce speci?c documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ?compelled' but was voluntary. Hubbell, 530 S. at 35 ?36, 120 Ct 2037 (emphasis added); see m. 425 US. at 409?10. 96 1569. That is, Stahl may be required to produce the password even though it may be testimonial and incriminate him because the creation of the password was not compelled Stahl is not being asked to cull through existing documents and assemble a set of documents which he believes are responsive to the subpoena?something newly created and competled to be created pursuant to subpoena In re Grand Jury Subpoena Duces Tecum Dated Oct. 29 1992, 1 3d 87. 93 [2d Cir 1993} ("Self-incrimination analysis now focuses on whether the creation of the thing demanded was compelled and. if not, whether the act of producrng it would constitute compelled testimonial communication .. 6/27/2018 State v. Stahl Cases I Westlaw Page 11 of 12 8 We note that the contents of Stahl's phone are neither at issue nor privileged United States v. Doe 465 605. 612. 104 Ct 1237. 79 Ed 2d 552 (1984); in re Boucher, 2009 WL 424718 at 9 Neither the State nor Stahl addresses the State's request as anything but an act of production. This is likely because relevant?but not determinative?case law addresses the privilege in the context of producing documents or ?les. clearly acts of production. Seel eg. Fricosu, 841 F.Supp 2d at 1235 government seeks a writ. . requiring Ms. Fricosu to produce the contents of the In re Boucher. 2009 WL 424718 at "1 (?[Tjhe Government stated that it does not in fact seek the password for the hard drive, but requires Boucher to produce the contents of his hard drive in an format by opening the drive before the grand Gelfgatt 11 3d at 612 (?The Commonweatth .. IS seeking to compel the defendant to 'all' of the ?digital storage devices that were seized from him.? And it is not entirely clear from the record whether the State wants Stahl to testify to the passcode or to enter it into the phone. Gelfgatt, 11 3d at 611. If the former, the State's request could be considered under the traditional analysis of the self-incrimination privilege?that of verbal communications. 10 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 Unitedts?tates. 354 118. 77 1145. 1 Ed 2d 1225 (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." at 12??28. 77 Ct 1145. 11 We recognize that the court in reached the opposite conclusion. but because provides no facts regarding the crimes or evidence linking to the computer and the computer to the crimes, we cannot discuss the case except to say that our reading of the cases relied upon in leads to the conclusion that the statement must have value beyond its actual content We believe the facts here set forth one of the "very few instances in which a verbal statement, either oral or written. will not convey information or assert facts," and therefore would not be testimonial. 487 US. at 213. 108 Ct 2341. 12 These considerations. we believe. allow forthe balance spoken of in mg and Schmerber, among others. 487 US at 213 108 8.01 2341 (?Even if some of the policies underlying the privilege might support petitioner's interpretation of the privilege. 'it is clear that the scope of the privilege does not coincide with the complex of values it helps to protect. Despite the impact upon the inviolability of the human personality. and upon our belief In an adversary system of criminal justice in which the Government must produce the evidence against an accused through its own independent labors. the prosecution is allowed to obtain and use evidence which although compelled is generally speaking not "testimonial? (quoting MaLchettii United States, 390 U.S 62 72. 88 Ct. 716. 19 L.Ed.2d 906 (1968) (Brennan J.. concurring?); Schmerber. 384 US at 762-63 86 Ct. 1826 privilege has never been given the full scope which the values it helps to protect suggest. History and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through ?the cruel. simple expedient of compelling it from his own mouth.? 13 As noted by the Eleventh Circuit. at the time it adopted the "reasonable particularity? standard, the Ninth and DC. Circuits had also adopted the standard. in re Grand Jug. 670 3d at 1344 20. The Second Circuit has also adopted the standard. United States Green?eld. 831 3d 106. 115?16 (2d Cir. 2016). 1 6/27/2018 State v. Stahl Cases Westlaw Page 12 of 12 The Eleventh Circuit explained that the subpoena at issue directed Doe to appear before a grand jury ?and produce the contents? of hard drives and ?any and all containers or folders thereon." re Grand Jug, 670 3d at 1339. The hard drives were seized pursuant to a warrant, which presumably also allowed the Government to search the drives. The focus of the Government's request was the contents of the drives, not the key. 15 Given the State's evidence and the fact that it met the standard necessary to obtain a search warrant for Stahl's iPhone, we would be inclined to ?nd that the State had met the reasonable particularity standard for even the contents of Stahl's phone. The State knew Stahl was the individual in the store surveillance video holding an imaging device. which the victim identi?ed as a phone; it knew that the evidence would be a photo or video ?le; and it knew the evidence would be authentic based upon the store surveillance video. However, nothing about our conclusion prevents Stahl from ?ling a motion to suppress any evidence found on the phone based on the validity of the warrant. See, Baust? 89 Va. Cir. 267 (?mhe contents of the phone, obtained pursuant to a validly executed warrant are only subject to objections raised under the Fourth Amendment. not the Fifth Amendment." (emphasis omittedj). End of $3 2018 Thomson Reuters, No claim to original 5 Government Works Document .. 6/27/2018