FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-4572
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MATTHEW TYLER POLLARD,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.

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Petition for Writ of Prohibition—Original Jurisdiction.
December 23, 2019
ON MOTION FOR REHEARING AND CERTIFICATION
MAKAR, J.,
The State has filed a motion for rehearing and certification,
which we grant in part by certifying the following questions of
great public importance:
WHAT IS THE PROPER LEGAL INQUIRY WHEN THE STATE

SEEKS TO COMPEL A SUSPECT TO PROVIDE A PASSWORD TO
THE SUSPECT’S CELLPHONE IF THE SUSPECT HAS NOT
PREVIOUSLY GIVEN UP HIS FIFTH AMENDMENT PRIVILEGE
IN THE PASSWORD? WHAT LEGAL STANDARD APPLIES IN
DETERMINING WHETHER THE FOREGONE CONCLUSION
APPLIES TO COMPELLED PRODUCTION OF PASSWORDS IN
THESE SITUATIONS?

 The State’s motion for rehearing is narrow and limited solely to
our jurisdiction in this case and seeks no substantive changes on
the merits of the constitutional issue. Concluding that jurisdiction
exists, we deny the motion.
The State’s motion for certification of conflict does not ask for
any substantive changes to our opinion either. It urges, instead,
that our opinion conflicts with the decision in State v. Stahl, 206
So. 3d 124 (Fla. 2d DCA 2016), because it adopted the approach in
G.A.Q.L. v. State, 257 So. 3d 1058, 1062 (Fla. 4th DCA 2018), a
case that disagreed with Stahl but neither certified conflict nor a
question of great public importance. Certification presents a close
question, but the factual differences in those cases and this case,
such as whether a defendant has given up his testimonial
privilege, make them distinguishable such that no direct conflict
exists within the meaning of article V, section 3(b)(4), Florida
Constitution. We therefore deny the motion for certification of
conflict. That said, the proper approach to analyzing compelled
password production needs clarification, which is why a question
of great public importance has been certified.
Despite the narrow focus of the State’s motion, our dissenting
colleague presents many pages of arguments—old and new—that
amount to a second opinion on the merits. Tellingly, our colleague’s
almost exclusive focus is on the Fourth Amendment and probable
cause despite no party mentioning either of them in their merits
briefs and the State advancing no argument on such matters in its
motion for rehearing and certification. And whether the probable
cause affidavit (which sought to seize broad categories of
information from the cellphone—without identifying any specific
item—on the basis that criminals use cellphones) was proper or a
fishing expedition matters not; we fail to see how the issuance of a
subpoena or warrant—whether careful drawn or a fishing
expedition—negates the Fifth Amendment’s protections, which are
the focus of this case.
If anything, the relationship that exists between the Fifth
Amendment right against compelled personal disclosures and its
neighboring and complementary Fourth Amendment right against
unreasonable searches and seizures counsels in favor of protection
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 against governmental overreach into individual autonomy in
criminal cases. LEONARD W. LEVY, ORIGINS OF THE FIFTH
AMENDMENT 431 (1968) (“With good reason the Bill of Rights
showed a preoccupation with the subject of criminal justice. The
framers understood that without fair and regularized procedures
to protect the criminally accused, there could be no liberty.”). As
expressed in our original opinion, the expansion of governmental
powers to compel disclosures of personally-held information to
search person’s homes and personal effects, as reflected in Stahl
and our dissenting colleague’s view, is the antipode of the original
understanding of the Fifth Amendment, which protected
individual freedom by prohibiting compelled disclosures used to
incriminate an accused. See Donald Dripps, Self-Incrimination, in
THE HERITAGE GUIDE TO THE CONSTITUTION 437-439 (David F.
Forte & Matthew Spalding eds., 2d ed. 2014); see also LEVY, at 432
(“Above all, the Fifth Amendment reflected [the framers’]
judgment that in a free society, based on respect for the individual,
the determination of guilt or innocence by just procedures, in
which the accused made no unwilling contribution to his
conviction, was more important than punishing the guilty.”)
(emphasis added). At its core, the debate in Stahl, G.A.Q.L., and
this case is about which vision of the right against compelled
testimony prevails: those of the Founders who erred on the side of
personal liberty or those who defend state powers to extract
testimony and see no problem in “merely compel[ling a defendant]
to unlock [a] phone by entering the passcode himself.”
JAY, J., concurs; WINOKUR, J., concurs in part and dissents in
part with opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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WINOKUR, J., concurring in part and dissenting in part.

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 I concur in the Court’s decision to certify questions of great
public importance to the Florida Supreme Court. I believe that it
is appropriate to add some additional insight into why this
question is important enough to merit certification. I also concur
in the decision to deny rehearing. However, I dissent from the
decision to deny certification of conflict with State v. Stahl, 206 So.
3d 124 (Fla. 2d DCA 2016).
Great Public Importance
I find that the State’s motion reveals that one of the central
issues in this case is the contention that the State’s attempt to
access data on Pollard’s phone “amount[s] to a mere fishing
expedition.” Pollard v. State, 44 Fla. L. Weekly D1573, D1576 (Fla.
1st DCA June 20, 2019) (citing G.A.Q.L. v. State, 257 So. 3d 1058,
1064 (Fla. 4th DCA 2018)). The use of this phrase suggests that
the State had nothing but sheer hope that the phone contained
evidence of a crime. But if this were true, the State could not have
obtained a warrant to seize and search the phone. In order to
obtain the search warrant, police had to demonstrate to a
magistrate that it had probable cause to believe that the phone
contained evidence of a crime; that is, that there was a “reasonable
probability that contraband will be found” on the phone. Pagan v.
State, 830 So. 2d 792, 806 (Fla. 2002). The State met this standard
by introducing evidence—including a co-defendant’s admission
that the robbery Pollard allegedly participated in was planned via
text message—indicating that incriminating evidence existed on
Pollard’s phone. No “mere fishing expedition” was involved.
The majority draws this language from G.A.Q.L. v. State,
which in turn cited United States v. Hubbell, 530 U.S. 27, 44
(2000). But in Hubbell, the Government sought information by
subpoena, not by search warrant. The Government never had to
make a showing that it had probable cause to seize the disputed
documents; it merely issued a grand jury subpoena to Hubbell. Id.
at 31. The Supreme Court approved the District Court’s
characterization of the subpoena as a “fishing expedition” because
the Government could not state with “reasonable particularity a
prior awareness that the [documents] sought existed and were in
Hubbell’s possession.” Id. at 32-33. In that context, this finding
meant the demand for documents violated Hubbell’s rights,
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 because the Government was merely compelling Hubbell to
provide incriminating information without knowing what those
documents might reveal, rather than seeking documents it could
already identify without forcing Hubbell to produce them. This is
why the Court characterized the Government’s demand as a
“fishing expedition.”
Nothing of the sort occurred here. The State did not merely
issue a subpoena for Pollard’s phone with a hunch that it might
provide incriminating information. Rather, the State introduced
evidence showing, to a magistrate’s satisfaction, that probable
cause existed that Pollard’s phone contained evidence of a crime.
This evidence was what they sought, not the passcode that is the
subject of this petition.
It is true that the Hubbell Court wrote that “[t]he assembly of
those documents was like telling an inquisitor the combination to
a wall safe, not like being forced to surrender the key to a
strongbox.” Id. at 43 (emphasis supplied). The majority opinion
suggests that this passage states a general rule that a requirement
to tell police a “combination” violates the right against selfincrimination. I submit this claim misreads Hubbell. The State
here was not asking Pollard to “assemble” anything. It already had
probable cause that incriminating information was located on the
phone. Compelling Pollard to provide the passcode in order to
access this incriminating information is more like forcing him to
surrender a key than embarking on a “fishing expedition” for
unknown information.1 In short, I believe that the characterization
of the State’s request as a “fishing expedition,” and its relation to
the foregone conclusion exception, amplify why this case is of great

It is worth repeating that the opinion does not address
whether it would be improper for the State to merely compel
Pollard to unlock the phone by entering the passcode himself. And
if this is not improper, then the demand for the passcode, which
accomplishes the same result, cannot be deemed a “fishing
expedition.”
1

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 public importance, especially since the same point was made in
G.A.Q.L. 2
Certification of Conflict
In Stahl, the Second District concluded that the foregone
conclusion exception applied to permit compulsion because the
State proved that the passcode existed, the defendant knew it, and
the passcode was self-authenticating:
To know whether providing the passcode implies
testimony that is a foregone conclusion, 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. 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. The State established that the phone could not be
searched without entry of a passcode. A passcode
therefore must exist. It also established . . . that the
phone was Stahl’s and therefore the passcode would be in
Stahl’s possession. That leaves only authenticity. And as
Admittedly, it is unclear whether the majority still adheres
to this view. In its opinion, the majority ruled that the State’s
failure to “describe with reasonable particularity” the information
it sought on Pollard’s phone made its request a “mere fishing
expedition,” which invalidated the applicability of the foregone
conclusion exception to Fifth Amendment rights. Pollard, 44 Fla.
L. Weekly at D1576. But in its opinion on rehearing, the majority
contends “whether the probable cause affidavit . . . was proper or
a fishing expedition matters not,” and that the specificity of the
warrant is irrelevant to Pollard’s Fifth Amendment protections.
Maj. op. on rehearing at 2. If the majority now contends that a
supposed lack of specificity of the warrant does not matter to the
outcome of this case, then I agree. However, without this fact, the
foregone conclusion exception requires disclosure.
2

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 has been seen, the act of production and foregone
conclusion doctrines cannot be seamlessly applied to
passcodes and decryption keys. If the doctrines are to
continue to be applied to passcodes, decryption keys, and
the like, we must recognize that the technology is selfauthenticating—no other means of authentication may
exist. If the phone or computer is accessible once the
passcode or key has been entered, the passcode or key is
authentic.
206 So. 3d at 136 (citations omitted).
Similarly here, it is undisputed that the passcode existed and
that Pollard knew it; the answers to the determinative questions
in Stahl are the same. However, the majority applied a different
analysis by questioning how precisely the State could identify the
evidence it sought on the phone, rather than by focusing on the
passcode as Stahl did. The majority consequently came to a
different conclusion, finding that “unless the state can describe
with reasonable particularity the information it seeks to access on
a specific cellphone, an attempt to seek all communications, data
and images ‘amount[s] to a mere fishing expedition.’” Pollard, 44
Fla. L. Weekly at D1576 (quoting G.A.Q.L., 257 So. 3d at 1064).
Had this Court applied the holding of Stahl, we would have denied
the petition for certiorari, but the majority employed a different
analysis and granted certiorari. As such, the majority’s opinion
directly conflicts with Stahl.
The majority attempted to distinguish Stahl by stating that
Stahl “initially agreed to allow police to search the phone, thereby
inferring his knowledge of the passcode and its authenticity,”
finding that the Second District held “that the suspect’s actions
disclosed or authenticated the password sought (here by Stahl
initially agreeing to allow police to access the phone),” thus making
authentication a foregone conclusion, and concluding that Pollard,
conversely, had never “previously given up his privilege in the
password sought.” Id. at D1575. This argument fails for two
reasons.
First, Stahl initially consented to a search of his cellphone
before withdrawing his consent after police recovered the
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 cellphone from his house, thus requiring the State to obtain a
search warrant. Stahl, 206 So. 3d at 128. The State then found
that it could not view the contents of the phone and moved to
compel Stahl to produce his passcode. Id. It is clear that Stahl’s
initial consent was a waiver of his Fourth Amendment rights
against unreasonable searches, requiring the State to obtain a
search warrant. If Stahl had maintained his consent and handed
his phone to the State, the State still could not have viewed the
information inside it without obtaining the passcode. Thus, the
majority’s assertion that Stahl “had previously given up his
privilege in the password sought,” Pollard, 44 Fla. L. Weekly at
D1575, is without support and further conflates the Fourth
Amendment and Fifth Amendment protections. Regardless, even
if Stahl had stated that he would provide his passcode before
changing his mind, the majority provides no logical reason why we
would use a passcode-centric approach to the foregone conclusion
exception then, while utilizing a completely different contentcentric approach when a defendant like Pollard simply admits that
he knows the passcode to his phone (but does not briefly say he will
provide it before changing his mind). This factual distinction is
unsupported and would be meritless if it was.
Second, contrary to the majority opinion’s assertion, Stahl did
not hold that the authenticity requirement was satisfied because
he “disclosed or authenticated the password sought” when he
initially provided consent to search his phone; as discussed above,
he never mentioned a passcode when he waived his Fourth
Amendment rights. Id. The Second District found that the
foregone conclusion exception “cannot be seamlessly applied to
passcodes and decryption keys” without “recogniz[ing] that the
technology
is
self-authenticating—no
other
means
of
authentication may exist.” Stahl, 206 So. 3d at 136. Stahl
concluded that “[i]f the phone or computer is accessible once the
passcode or key has been entered, the passcode or key is
authentic.” Id. Despite the majority’s contention, Stahl is clear
that its ruling is based on the passcode’s self-authentication rather
than any purported disclosure of the password. This ruling is in
clear conflict with the majority’s conclusion that “simply because a
compelled password unlocks a cellphone after the fact doesn't
make it authentic ex ante.” Pollard, 44 Fla. L. Weekly at D1575.
8

 The majority decision is in direct conflict with Stahl, so I
would grant the State’s motion to certify conflict. 3
_____________________________
Stacy A. Scott, Public Defender, and Logan P. Doll, Assistant
Public Defender, Gainesville, for Petitioner.
Ashley Moody, Attorney General, Benjamin L. Hoffman, Assistant
Attorney General, Edward Wenger, Chief Deputy Solicitor
General, and Christopher Baum, Deputy Solicitor General,
Tallahassee, for Respondent.

The majority suggests I have turned my back on “the
Founders” and their commitment to personal liberty and sees my
position as “defend[ing] state powers to extract testimony.” Maj.
op. on rehearing at 2-3. I disagree with the majority that this case
turns on one’s “vision” of the Fifth Amendment. Rather, it turns on
the application of the foregone conclusion exception established by
the United States Supreme Court, which we cannot contradict
even if it conflicts with our personal conception of the United
States Constitution.
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