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Smartphones, Passcodes, the Constitution, and Orwell’s 1984

State v. K.C., No. 4D15-3290 (Fla. 4th DCA Dec. 7, 2016)
State v. Stahl, No. 2D14-4283 (Fla. 2d DCA Dec. 7, 2016) 

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If the police find your passcode-protected smartphone apparently abandoned in a stolen car, do they need a warrant before they can search the contents of your phone? The answer is yes, according to Florida’s Fourth District Court of Appeal.

If the police obtain your passcode-protected smartphone using a warrant based on probable cause, can the state compel you to reveal your passcode? The answer is also yes, according to the Second District Court of Appeal.

Though the two cases differ widely in their attitudes toward defendants’ rights, they are not in direct conflict. The first case raises Fourth Amendment concerns; the second case, Fifth Amendment concerns. Both cases require a warrant before a passcode-protected smartphone may be searched. In State v. K.C., the Fourth District approach is highly deferential toward privacy rights, noting the tremendous body of personal data that may be stored in a smartphone. Thus, a warrantless search of an abandoned phone invokes far greater privacy concerns than the warrantless search of, say, an abandoned car. Even if the phone is abandoned, the owner has established his expectation of privacy by password-protecting it.

The Second District case, State v. Stahl, concerns the right against self-incrimination. Is compelling a defendant to reveal the passcode of his smartphone tantamount to forcing him to incriminate himself? The Second District employed a complex analysis, based on U.S. Supreme Court and federal 11th Circuit case law, that boiled down to the question of whether the defendant’s revealing his passcode was an act of surrender, such as giving up a key to a safe containing incriminating documents, or a testimonial act, such as answering questions that would incriminate him. Compelling an act of surrender may be constitutional in certain circumstances, but compelling an accused to testify against himself would not be.

In Stahl, the state had produced evidence establishing probable cause that the phone belonged to the defendant and that he had used it to attempt to take lewd videos of a woman without her consent. This justified the warrant for seizing the phone. And since it was probable that the phone contained incriminating pictures, the Second District concluded that forcing the passcode from the defendant was analogous to making him give up the key to his safe – an act of surrender, not a testimonial act, and therefore not prohibited by the Fifth Amendment.

My take: The U.S. Supreme Court has said, “It is the extortion of information from the accused, the attempt to force him to disclose the contents of his own mind, that implicates the Self-Incrimination Clause.” Doe v. United States, 487 U.S. 201, 211 (1988). It has been said that an accused could be forced to surrender a key to a strongbox but not to reveal the combination to his wall safe.

The Second District, however, expressly rejected the “key versus combination” distinction. But asking a person to reveal a passcode or combination is asking him to reveal information that may exist only in his own mind. If anything should be off-limits to government intrusion, it is an individual’s mind. That may be the last refuge against oppression.

I think of the character Winston in George Orwell’s 1984, near the end of the book, when the government has thoroughly beaten and controlled him, at least bodily. His girlfriend had said, “They [meaning the government] can’t get inside you,” but Winston eventually learned that they could, and when they did they could even control his thoughts. That’s why forcing a person to reveal the contents of his mind to assist in his own prosecution exudes such an overpowering odor of Big Brother.

— Tom Regnier, February 2, 2017

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Tom Regnier Appeals, P.A. | 786-319-4810
1580 Sawgrass Corporate Parkway, Suite 130
Sunrise, FL 33323

Florida Bar Number: 660000

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