MATTHEW TYLER POLLARD, Petitioner, v. STATE OF FLORIDA, Respondent.
No. 1D18-4572
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA
June 20, 2019
Petition for Writ of Prohibition—Original Jurisdiction.
To what extent does the
Matthew Tyler Pollard was arrested and charged with armed robbery of two victims who were misled into believing they were buying drugs. Pursuant to a warrant, the state seized an iPhone® from Pollard’s car and filed a motion to compel Pollard to disclose the phone’s passcode so that it could access broad categories of encrypted information on the cellphone. The information sought was described in general terms and broad categories in the investigating detective’s affidavit in support of the search warrant:
- Call/text/communication history on and between June 19, 2018 and June 25, 2018.
- Content of communications on and between June 19, 2018 and June 25, 2018.
- Picture(s) of narcotics, money, firearms.
- Written information about the illegal purchase, possession, and sale of illegal narcotics, and or plans of a robbery on and between June 19, 2018 and June 25, 2018.
- Activity listed in phone applications: Facebook, Facebook Messenger, etc., concerning buying, selling, or possessing illegal narcotics and or planning
a robbery on and between June 19, 2018 and June 25, 2018.
The affidavit did not state the existence or content of any specific text, picture, call or other particular information. It noted, however, that “it was reasonable to believe” that a co-defendant, Draven Rouse, had “communicated with Pollard via cell phone” both prior to and on the day of the robbery, presumably to coordinate the robbery. Based on his training and experience, the detective stated that persons in “criminal enterprises” sometimes use cellphones to communicate and coordinate activities with accomplices, to document criminal activities, and to compile contacts useful in a criminal investigation; he did not, however, identify any specific item that was on Pollard’s cellphone, only that the state wished to seize from the cellphone all items in the categories of information listed above.
Accessing the cellphone’s content required a passcode, which the state in a one-page motion sought to compel from Pollard. The state’s motion—and the trial court’s favorable ruling—relied exclusively on State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016), which upheld the compelled production of a cellphone’s passcode over a defendant’s
Based on Stahl, the trial court held the state established that the cellphone was Pollard’s, that it was password protected, and that if the password compelled from Pollard made the cellphone’s content accessible, the password was deemed authentic, thereby requiring Pollard to provide the password. Quoting Stahl, the trial court also noted that the state had established by independent means the “‘existence, possession, and authenticity of the documents’ it seeks to recover from [Pollard’s] phone.” 206 So. 3d at 135. It concluded that the “State already knows the information it is seeking [Pollard] to produce and why.” The trial court did not identify any specific documents or information in this regard, but noted that “at [a] minimum, text messages” were part of the coordinated effort to conduct the robbery. No limits were placed on the scope of the search of the contents of the cellphone, but the state was prohibited from using the compelled production of Pollard’s password as evidence at trial; no limitation was put on use of the documents and information that might be discovered. The password was placed in a sealed and confidential file pending resolution of Pollard’s petition for writ of prohibition, which seeks to prevent the compelled use of the embargoed password. We treat the petition as a petition for writ of certiorari, which requires a departure from the essential requirements of the law that results in material injury that cannot be corrected post-judgment.
Courts nationwide are struggling to find common legal ground on the constitutionality of compelled password production under the
The
Florida is no exception in the national judicial debate over compelled password production. Since the trial court’s ruling, the Fourth District issued its opinion in G.A.Q.L. v. State, 257 So. 3d 1058, 1062 (Fla. 4th DCA 2018), which seemingly conflicts with the approach taken in Stahl as to the foregone conclusion exception and allows compelled production of information where the testimonial value of doing so is negligible. As a result, two different analytical methods currently exist in Florida, though both apply the same two-step framework, which asks (a) is the compelled production of the password a testimonial and potentially incriminating act, and, if so, (b) is the compelled password production nonetheless permissible under the foregone conclusion exception because its testimonial value is inconsequential due to the state already knowing of the existence of the requested information. Id. at 1063 (“Under this exception, an act of production is not a violation of the
For example, if the central feature in a criminal case is what files are on a cellphone, and the state can establish that a defendant’s cellphone contains files that are described with “reasonable particularity,” the compelled production of the password to access those files (but only those files) does no damage to the defendant’s constitutional right against self-incrimination where sufficient evidence establishes that it is his phone on which the files reside. In contrast, if a central feature of a criminal case is who owns a seized cellphone or has the code to access it, compelling a defendant to provide a password may be testimonial and incriminating because it proves an unknown fact, i.e., who is the cellphone’s owner or who can access it. For instance, if an employee was alleged to have broken into a password protected computer system, and caused cyber-harm therein, evidence as to his ability to access the system (i.e., possession of the password) would be incriminating because it supports the ability to access the system.
In Stahl, a video voyeurism case, the defendant used a cellphone to take video under a customer’s skirt, was identified via store surveillance video, and arrested. After his locked cellphone was produced pursuant to a search warrant, he admitted it was his cellphone and initially agreed to permit police to search it for images, but he changed his mind, resulting in the state’s request to compel its password. Under those circumstances, the Second District concluded that compulsion of the passcode was not a
Stahl’s application of foregone conclusion exception focused on disclosure of the password itself, rather than the information that access to the cellphone would produce. Stahl viewed the forced disclosure of the password as non-testimonial because the existence, custody, and authenticity of the password were a “foregone conclusion” under the facts of that case. No one disputed that the cellphone was the defendant’s and that he put it under a customer’s skirt with its flash enabled and appeared to take pictures that would be accessible in the cellphone’s memory (or via cloud storage). The testimonial value of compelling the cellphone’s password was negligible under the circumstances: it was Stahl’s phone, evidence established his use of the phone during the incident for flash-photography, and he initially agreed to allow police to search the phone, thereby inferring his knowledge of the passcode and its authenticity. By its holding, Stahl stands for the proposition that where the state establishes factually
The facts conveyed through his act of producing the passcode were the existence of the passcode, his possession and control of the phone’s passcode, and the passcode’s authenticity. The State showed that it had prior knowledge of those facts because Johnson knowingly and voluntarily entered the passcode the first time in the presence of law enforcement and defense counsel for the purpose of having his expert examine the phone; hence, their disclosure a second time pursuant to the order to compel was a foregone conclusion.
Id. at *14 (footnote omitted). Because the defendant had already openly used the passcode in the manner described, the “compelled act of production was not testimonial” and not a
Unlike Stahl and Johnson, the decision in G.A.Q.L. was not based on application of the foregone conclusion exception to unearth a passcode about which the state had prior knowledge via its open use by the suspect (Johnson) or the suspect’s initial agreement to disclose it (Stahl). Instead, G.A.Q.L. focused on the state’s goal of accessing the information on the suspect’s cellphone because the state lacked prior knowledge of the suspect’s password. In Stahl, the court noted that the state sought “the phone passcode not because it wants the passcode itself, but because it wants to know what communications lie beyond the passcode wall.” G.A.Q.L., 257 So. 3d at 1062. The court in G.A.Q.L. concluded that compelling the passcode was akin to a testimonial act (i.e., revealing the “contents of the mind” of the minor) protected by the
password itself. Unlike the situations in Stahl and Johnson, no evidence establishes that Pollard had previously given up his privilege in the password sought. In these situations, as the court in G.A.Q.L. noted, the three-part test is tautological when applied to passwords because all password-protected cellphones have an “authentic” password, making the Stahl test somewhat circular. In this regard, the court in Stahl said that “[i]f 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, which begs the question of whether sufficient evidence established that the passcode is authentic before it had been compelled and used successfully. The state must have sufficient proof of authenticity before it can compel the password’s production; simply because a compelled password unlocks a cellphone after the fact doesn’t make it authentic ex ante. To do otherwise is “like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.” United States v. Hubbell, 530 U.S. 27, 43 (2000).
The approach in Stahl makes sense, however, in those limited situations where the state establishes that the testimonial value of the compelled password has been abandoned, such as where a defendant has voluntarily entered his passcode to access his cellphone in the presence of law enforcement such that the testimonial value of compelling the passcode’s production a second time is negligible. Johnson, 2019 WL 1028462, at *14 (state showed that defendant “knowingly and voluntarily entered the passcode the first time in the presence of law enforcement and defense counsel for the purpose of having his expert examine the phone; hence, their disclosure a second time pursuant to the order to compel was a foregone conclusion.“). We note that it becomes predominantly a
Turning back to G.A.Q.L., that court held that “if the state can meet the requirements of the foregone conclusion exception, it may compel otherwise ostensibly self-incriminating testimonial production of information.” 257 So. 3d at 1063.
Under this exception, an act of production is not a violation of the
Fifth Amendment —even if it conveys a fact—if the state can show with reasonable particularity that, at the time it sought to compel the act of production, it already knew of the materials sought, thereby making any testimonial aspect a foregone conclusion. . . . As it pertains to electronic files, this doctrine requires that the state demonstrate with reasonable particularity “that (1) the file exists in some specified location, (2) the file is possessed by the target of the subpoena, and (3) the file is authentic.”
Id. (citing In re Grand Jury Subpoena, 670 F.3d at 1349 n.28). In applying the three-part test, the court concluded that the state failed to identify with reasonable particularity any specific files sought on the minor’s cellphone. It noted that “the
We agree with the Fourth District 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.” Id. On the assumption that the foregone conclusion exception applies to core testimonial communications, such as a compelled oral disclosure of a password, it is not applicable here because the state failed to identify with particularity and certainty what information existed beyond the password-protected cellphone wall; mere inference that evidence may exist is not enough. In re Grand Jury Subpoena, 670 F.3d at 1347 (“Case law from the Supreme Court does not demand that the Government identify exactly the documents it seeks, but it does require some specificity in its requests—categorical requests for documents the Government anticipates are likely to exist simply will not suffice.“).
Applied here, the state’s generalized requests for multiple categories of communications, pictures, and social media activity fit the description of net cast far too broadly. The only category of information that potentially meets the reasonable particularity standard is the investigating officer’s affidavit, which avers only that “it is reasonable to believe” that a co-defendant had “communicated with Pollard via cell phone” leading up to and on the day the robbery occurred. The basis for this belief is that because the co-defendant had sent text messages to another person involved in the robbery, it would be reasonable to believe that the co-defendant must have communicated with Pollard in a similar manner as well, even though no specific communication is identified or alleged. As in G.A.Q.L., the evidentiary record is too thin to conclude that the foregone conclusion exception applies. At best, the officer believed that text messages likely existed on Pollard’s phone because most criminal enterprises of this type operate via coordinated electronic communications that would leave a discoverable digital trail, but this generalized belief falls short of the reasonable particularity standard. See Hubbell, 530 U.S. at 45 (government’s deficient identification of particular documents sought cannot be cured by “the overbroad argument that a businessman such as [Hubbell] will always possess general business and tax records that fall within the broad categories described in this subpoena.“).
In conclusion, we grant the writ of certiorari and quash the trial court’s order.
PETITION GRANTED; ORDER QUASHED
JAY, J., concurs; WINOKUR, J., dissents with opinion.
Not final until disposition of any timely and authorized motion under
WINOKUR, J., dissenting.
The
I.
Matthew Pollard was arrested and charged, along with co-defendants, with armed robbery. The state proved to the trial court that Pollard participated in the robbery and provided the firearm, and that he and the co-defendants planned the robbery through text messages. The state sought a search warrant for Pollard’s phone, asserting probable cause that the phone contained incriminating evidence, which the trial court issued and Pollard unsuccessfully challenged. After seizing Pollard’s phone, law enforcement was unable to access its contents without his passcode and the state filed a motion to compel him to produce it. Pollard objected, arguing that production of the password could not be severed from production of the data inside the phone (which is what the state truly sought) and the state has not adequately identified the data in the phone for the “foregone conclusion” exception to apply. The trial court found that the phone belonged to Pollard, he knew its passcode, and it could not be accessed without the passcode—none of which was disputed—and granted the motion to compel pursuant to State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016). The trial court ordered Pollard to provide his passcode, ruled that the state could not use his production of the passcode as evidence at trial, and allowed the passcode he provided to be sealed pending our review.
II.
The
“[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe, 487 U.S. at 210. For this reason, compelled acts that do not require an accused to disclose his knowledge—such as furnishing a blood sample, providing a voice or handwriting exemplar, or standing in a lineup—are not testimonial and are not protected by the
The Fourth District in G.A.Q.L. v. State, 257 So. 3d 1058, 1061-62 (Fla. 4th DCA 2018), found that disclosing a password “is testimonial and can violate the
Foregone Conclusion
While production of the password may generally be testimonial, the
Under this exception, an act of production is not a violation of the
Fifth Amendment —even if it conveys a fact—if the state can show with reasonable particularity that, at the time it sought to compel the act of production,
it already knew of the materials sought, thereby making any testimonial aspect a foregone conclusion.
G.A.Q.L., 257 So. 3d at 1063.; see also United States v. Apple MacPro Computer, 851 F.3d 238, 247 (3d Cir. 2017), cert. denied sub nom. Doe v. United States, 138 S. Ct. 1988 (2018) (“[T]he
Here, the state’s only demand of Pollard is to produce his passcode. The state is not asking him to recover or
Before the trial court, the state proved—and Pollard conceded—that the phone belonged to Pollard, he had control over it, and that he knew the passcode to unlock it. Thus, the facts making this communication implicitly “testimonial” are not in dispute, but are a foregone conclusion.2 See Com. v. Gelfgatt, 11 N.E.3d 605, 615 (Mass. 2014) (“The facts that would be conveyed by the defendant through his act of decryption—his ownership and control of the computers and their contents, knowledge of the fact of encryption, and knowledge of the encryption key—already are known to the government and, thus, are a ‘foregone conclusion.‘“).3
The question is not whether Pollard knows the password, but whether he must surrender it, see Fisher, 425 U.S. at 411, so the
III.
G.A.Q.L. focused on the contents of the phone when determining whether the testimony is a foregone conclusion. 257 So. 3d at 1063 (“[T]he object of the foregone conclusion exception is not the password itself, but the data the state seeks behind the passcode wall.“). The majority now follows suit.4 In this view, “it is not enough to know that a passcode wall exists, but rather, the state must demonstrate with reasonable particularity that what it is looking for is in fact located behind that wall” because “the ‘evidence sought’ in a password production case such as this is not the password itself; rather, it is the actual files or evidence on the
locked phone.” Id. at 1063-64.5 Thus, G.A.Q.L. holds, the state must identify with reasonable particularity the evidence on the phone to compel an accused to produce his password. Id. at 1064.
It is true that the state does not seek the passcode for itself, but as a means to access the files in the phone. This, however, does not change what the accused is being compelled to produce. See, e.g., State v. Andrews, 197 A.3d 200, 205 (N.J. Super. Ct. App. Div. 2018), leave to appeal granted, No. 082209, 2019 WL 2011594 (N.J. May 3, 2019) (“Defendant argues the State is unaware of all of the possible contents of defendant’s devices. This is immaterial because the order requires defendant to disclose the passcodes, not the contents of the phones unlocked by those passcodes.“). In no other context does the foregone-conclusion analysis focus on evidence other than the evidence being compelled, and there is no reason to shift the focus now.
G.A.Q.L. is correct that the state must identify with particularity the files on the phone it seeks. But when these files are not what the state is compelling production of, the
against seizures without warrant or probable cause,” the First Amendment’s protection against being compelled to disclose who you associate with, “or evidentiary privileges such as the attorney-client privilege.” Id. at 401.
The state’s obligation to describe with particularity the files it seeks is required because the ”
The
2018) (“To the extent Spencer contends that the government has not adequately identified the files it seeks” in the devices it compelled him to decrypt, “that is an issue properly raised under the
IV.
In this case, we do not need to determine whether the state can sufficiently describe the evidence it seeks on the phone because the state has not compelled Pollard to produce that evidence and the
Stacy A. Scott, Public Defender, and Logan P. Doll, Assistant Public Defender, Gainesville, for Petitioner.
Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Respondent.
Notes
The Framers addressed the subject of personal privacy directly in the
Fourth Amendment . They struck a balance so that when the State’s reason to believe incriminating evidence will be found becomes sufficiently great, the invasion of privacy becomes justified and a warrant to search and seize will issue. They did not seek in still another Amendment the Fifth to achieve a general protection of privacy but to deal with the more specific issue of compelled self-incrimination.