In State, Federal, and Military Courts, almost every case now involves a smart phone: phone logs, text messages, photos, contacts, email…. you name it, and the police want access to the treasure-trove of information on the phone. There are so many legal issues when it comes to searches of smart phones – vague and overbroad warrants, insufficient probable cause, voluntary consent . . . but the most debated issue right now is where police actually get a warrant to search a smart phone but can’t get into the encrypted data on the phone without the password. The hardest phone to “crack” is an iPhone with the most up to date software. Some Android phones can be “chipped-off”, which means they take the memory out of the phone itself and put it in a dummy phone and access it bypassing the password.
A recent decision by the First District Court of Appeal for the State of Florida directly addressed the compelled disclosure of a smart phone password. In Pollard v. State, No. 1D18-4572 (June 20, 2019), the court addressed whether the Fifth Amendment right against self-incrimination protects a suspect from compelled disclosure of a password already in the government’s possession. Please keep in mind that in this case the government had a search warrant and had physical possession of the phone – they simply couldn’t access the data without the password from the suspect.
The Fifth Amendment forbids a governmentally-compelled testimonial communication (or act) that tends to incriminate the communicator (or actor). In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1341 (11th Cir. 2012). “The 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. Id. at 1345 (quoting Curcio v. United States, 354 U.S. 118, 128 (1957)). The court found that forcing a defendant to disclose a password, whether by speaking it, writing it down, or physically entering it into a cellphone, compels information from that person’s mind and thereby falls within the core of what constitutes a testimonial disclosure.
The Foregone Conclusion Exception to the Fifth Amendment
Prior courts addressing the password issue have relied on the “forgone conclusion” exception to the Fifth Amendment to force a suspect to give a smart phone password. The basis for the foregone conclusion exception is that the information provided is not testimony but merely surrendering property: in short, the Fifth Amendment is not implicated if the government knows of the existence, possession and authenticity of incriminating evidence, and is simply using the password to compel the production of information it already knows exists.
The court in Pollard explained the application of the foregone conclusion exception to a password itself (not considering the underlying data on the phone):
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.
The Foregone Conclusion Exception Does Not Apply Where Police Are Going On a Fishing Expedition
But the court in Pollard also recognized that it is an entirely different situation where, like the facts in Pollard, the government has a search warrant based on probable cause to seize broad categories of information on the phone, such as “call/text/communication history between June 19, 2018 and June 25, 2018.” The court found that the foregone conclusion exception did not apply because the government could not describe with reasonable particularity exactly what it thought was on the phone – they didn’t have good evidence that the phone contained specific incriminating evidence:
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 a HUGE Win for defendants, the court ruled that the password could not be compelled where the government does not have direct evidence that specific incriminating evidence will be found on the phone.