Defendant was charged with video voyeurism using his iPhone, and it was seized by the police. The trial court erred in not compelling the defendant to produce the password to the iPhone. Probable cause was already established with the issuance of the order to search, the phone was already connected to defendant, and producing the password wouldn’t be testimonial. State v. Stahl, 2016 Fla. App. LEXIS 18067 (Fla. 2d DCA Dec. 7, 2016):
It bears repeating that the information sought by the State, that which it would require Stahl to provide, is the passcode to Stahl’s iPhone—the iPhone that the State had a warrant to search based on probable cause that the phone was used in Stahl’s commission of the crime of video voyeurism. The State has not asked Stahl to produce the photographs or videos on the phone. But the fact that the State sought production of the passcode itself and not production of the contents of Stahl’s phone does not resolve the issue before us because the State does not contend the court departed from the requirement of law by applying the act-of-production doctrine.
“The difficult question whether a compelled communication is testimonial for purposes of applying the Fifth Amendment often depends on the facts and circumstances of the particular case.” Doe, 487 U.S. at 214-15. Here, the trial court rested its determination that producing the passcode would be testimonial exclusively on the concept that production would require “the use of the contents” of Stahl’s mind. The phrase “the contents of the accused’s mind” has often been repeated in cases discussing the privilege. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 211; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. And although the trial court correctly quoted the Eleventh Circuit’s statement in In re Grand Jury, that “[t]he 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,” 670 F.3d at 1345, the trial court did not consider the law as stated in Hubbell and Doe—that the contents of the accused’s mind must be “extensive[ly] use[d]” in creating the response, Hubbell, 530 U.S. at 43, or must “relat[e] him to the offense,” Doe, 487 U.S. at 213.10 That is, “it is not enough that the compelled communication is sought for its content. The content itself must have testimonial significance.” Doe, 487 U.S. at 211 n.10 (emphasis added) (first citing Fisher, 425 U.S. at 408; then citing Gilbert v. California, 388 U.S. 263, 267, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); and then citing United States v. Wade, 388 U.S. 218, 222, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)).
In this case, the communication was sought only for its content and the content has no other value or significance. By providing the passcode, Stahl would not be acknowledging that the phone contains evidence of video voyeurism. See Doe, 487 U.S. at 215. Moreover, although the passcode would allow the State access to the phone, and therefore to a source of potential evidence, the State has a warrant to search the phone—the source of evidence had already been uncovered. See id. Providing the passcode does not “betray any knowledge [Stahl] may have about the circumstances of the offenses” for which he is charged. See id. at 219 (Stevens, J., dissenting). It does not implicitly “relate a factual assertion or disclose information.” Doe, 487 U.S. at 210, 215. Thus, “compelling a suspect to make a nonfactual statement that facilitates the production of evidence” for which the State has otherwise obtained a warrant based upon evidence independent of the accused’s statements linking the accused to the crime does not offend the privilege. See id. at 213 n.11. “If a compelled statement is ‘not testimonial and for that reason not protected by the privilege, it cannot become so because it will lead to incriminating evidence.'” Id. at 208-09 n.6 (quoting In re Grand Jury Subpoena, 826 F.2d 1166, 1172 n.2 (2d Cir. 1987) (Newman, J., concurring)). The trial court’s reliance solely on the passcode being the contents of Stahl’s mind was a departure because the standard requires something more.
That an accused may be “forced to surrender a key to a strongbox containing incriminating documents,” but he cannot “be compelled to reveal the combination to his wall safe,” Doe, 487 U.S. at 219 (Stevens, J., dissenting), is another often repeated quote. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 210 n.9; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. Despite the many cases referencing the quote, we have found none that provide details of “surrender[ing] a key.” We question whether identifying the key which will open the strongbox—such that the key is surrendered—is, in fact, distinct from telling an officer the combination. More importantly, we question the continuing viability of any distinction as technology advances. See Fisher, 425 U.S. at 407 (“Several of Boyd[ v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886)]’s express or implicit declarations have not stood the test of time.”). In that respect, we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number combinations than to individuals who use their fingerprint as the passcode. Compelling an individual to place his finger on the iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar. See Hubbell, 530 U.S. at 35 (and cases cited therein); see also Baust, 89 Va. Cir. 267 at 268.
C. Foregone Conclusion
However, even the testimonial communication implicit in the act of production does not rise “to the level of testimony within the protection of the Fifth Amendment” where the State has established, through independent means, the existence, possession, and authenticity of the documents. Fisher, 425 U.S. at 411. That is, by implicitly admitting the existence of the evidence requested and that it is in the accused’s possession the accused “adds little or nothing to the sum total of the Government’s information”; the information provided is a foregone conclusion. Id. “In essence, under the ‘foregone conclusion’ exception to the Fifth Amendment privilege, the act of production does not compel a defendant to be a witness against himself.” Gelfgatt, 11 N.E.3d at 615.
In order for the foregone conclusion doctrine to apply, the State must show with reasonable particularity that, at the time it sought the act of production, it already knew the evidence sought existed, the evidence was in the possession of the accused, and the evidence was authentic. In re Grand Jury, 670 F.3d at 1344. Although the State need not have “perfect knowledge” of the requested evidence, it “must know, and not merely infer,” that the evidence exists, is under the control of defendant, and is authentic. United States v. Greenfield, 831 F.3d 106, 2016 WL 4073250, *6-7 (2d Cir. 2016). Where the foregone conclusion exception applies, “[t]he question is not of testimony but of surrender.” Fisher, 425 U.S. at 411 (quoting In re Harris, 221 U.S. 274, 279, 31 S. Ct. 557, 55 L. Ed. 732 (1911)).
. . .
V. Conclusion
The trial court departed from the requirements of the law by considering only part of the standard used to determine whether a communication is testimonial and by burdening the State with proving the existence of incriminating content on Stahl’s phone when that was not at issue. It further departed by requiring the State to establish existence beyond the reasonable particularity standard. Unquestionably, the State established, with reasonable particularity, its knowledge of the existence of the passcode, Stahl’s control or possession of the passcode, and the self-authenticating nature of the passcode. See In re Boucher, 2009 U.S. Dist. LEXIS 13006, 2009 WL 424718 at *3. This is a case of surrender and not testimony.
