Over the last several years, there has been a lot of litigation over whether, how and to what extend the police and prosecutors can access a person’s cell phone data. As everyone is aware, cell phones can contain a wealth of information about a person, his/her activities and the people with whom he/she associates. This can provide the state with a lot of incriminating information that can be used to successfully prosecute defendant in a wide variety of cases. But because cell phones contain so much private information, courts in Florida have recognized a right of privacy with cell phone information such that the police cannot normally just take a person’s cell phone and search it for whatever they want.
Let’s say the state did obtain a defendant’s cell phone or similar electronic device. Can the state force the defendant to provide the passcode to the state so they can access and search it?
In a recent robbery case near Jacksonville, Florida, the police seized a passcode protected Iphone from the defendant when he was arrested. The state later filed a motion to compel the passcode from the defendant. In the motion, the state said it was looking for all communication information and photographs for a seven day period prior to the arrest. The motion did not reference any specific information the state believed was on the phone that was relevant to the case. The state just believed the defendant communicated with his co-defendant prior to the robbery and was looking for evidence of that. The criminal defense attorney objected based on the Fifth Amendment right against self-incrimination. The Fifth Amendment forbids the government from compelling testimonial communications or acts that might incriminate a suspect or defendant. Whether something is testimonial depends on whether the request requires the person to use the contents of his own mind to communicate some statement of fact. This court determine that disclosing a passcode known in the defendant’s mind would be a testimonial act.
However, this was not the end of the analysis. There is an exception applied by some courts in Florida where the courts find that providing the cell phone passcode is a negligible act and therefore not testimonial. The disclosure of the passcode is not considered testimonial if the state can show with some particularity that it was aware of specific materials sought on that phone or device. In other words, if the state can articulate with some specificity what files are on the phone or electronic device at the time they are seeking it that are relevant to the case, giving the passcode may not be a testimonial act.
Florida courts in different districts have reached different conclusions for this issue. The law in Jacksonville’s district is that the state must describe with reasonable particularity the information it seeks to access on the cellphone or electronic device. The state cannot generally request text messages, emails, photographs, communications, social media activity, etc. So, if the state thinks there is incriminating on a defendant’s cell phone but cannot articulate what that information is with some specifics, it is unlikely the state can compel the defendant to provide the passcode if the defendant had not previously provided it. On the other hand, if the state was aware of specific pictures, text messages, social media posts or other data relevant to the crime, the state may be able to compel a defendant to provide the passcode so they can access it.