A.F.Ct.Crim.App.: Request for phone password after signed consent to search phone after Miranda warning not interrogation

Defendant had consented to a search of his cell phone in writing. He’d been Mirandized and then was asked for the passcode, which he gave. The request (not an order) for the passcode, was not an interrogation. United States v. Robinson, 2017 CCA LEXIS 378 (A.F. Ct. Crim. May 15, 2017):

Two Circuit Courts of Appeals have considered similar issues. In the first, the U.S. Court of Appeals for the Fourth Circuit held that when the defendant was asked for and provided his computer password after he had invoked his right to counsel, there was no Fifth Amendment violation because “[a]ny self-incriminating testimony that he may have provided by revealing the password was already a ‘foregone conclusion’ because the Government independently proved that [he] was the sole user and possessor of the computer.” United States v. Gavegnano, 305 Fed. Appx. 954 (4th Cir. 2009). This socalled “foregone conclusion” doctrine has been adopted by the Supreme Court and other federal courts in other contexts. See, e.g., Fisher v. United States, 425 U.S. 391, 408 (1976) (finding that while the act itself of complying with a summons for documents had “communicative aspects of its own, wholly aside from the contents of the papers produced”—including tacitly conceding the existence and location of the documents—the matters communicated were, under the circumstances, a “foregone conclusion” that added “little or nothing to the sum total of the Government’s information ….” “Under these circumstances … no constitutional rights are touched. The question is not of testimony but of surrender.”) (internal cites and quotation marks omitted); United States v. Hubbell, 530 U.S. 27, 44-45 (2000) (distinguishing Fisher because the act of Hubbell’s compliance itself communicated facts not known to the Government and were not a foregone conclusion); United States v. Apple Mac Pro Computer, 851 F.3d 238, 248 (3d Cir. 2017) (upholding order to decrypt files because “any testimonial component of the production of decrypted devices added little or nothing to the information already obtained by the Government” and were thus a foregone conclusion); United States v. Doe (In re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335, 1345–46 (11th Cir. 2012) (“[U]nder the “foregone conclusion” doctrine, an act of production is not testimonial—even if the act conveys a fact regarding the existence or location, possession, or authenticity of the subpoenaed materials—if the Government can show with ‘reasonable particularity’ that, at the time it sought to compel the act of production, it already knew of the materials, thereby making any testimonial aspect a ‘foregone conclusion.’”).

Also:

Note 4: See generally State v. Stahl, 206 So. 3d 124 (Fla. Dist. Ct. App. 2016) (motion to compel defendant to enter passcode into the cellular phone did not violate Fifth Amendment); United States v. Fricosu, 841 F. Supp. 2d 1232 (D. Col. 2012) (court order requiring defendant to produce the unencrypted contents of her laptop did not violate Fifth Amendment); In re Grand Jury Subpoena (Boucher), 2009 U.S. Dist. LEXIS 13006 (D. Vt. 19 Feb. 2009) (subpoena compelling defendant to decrypt his laptop did not offend Fifth Amendment); Commonwealth v. Gelfgatt, 11 N.E.3d 605, 612 (Mass. 2014) (defendant can be compelled to decrypt digital evidence where act would not communicate facts beyond which defendant had already admitted). But see United States v. Doe (In re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335 (11th Cir. 2012) (subpoena requiring defendant to produce decrypted contents of his hard drives violated Fifth Amendment); United States v. Kirschner, 823 F. Supp. 2d 665 (E.D. Mich. 2010) (subpoena calling for defendant to testify to the password he utilizes for his computer violated Fifth Amendment); Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014) (motion to compel production of defendant’s passcode to unlock cellular phone violated Fifth Amendment, but compelling use of fingerprint to unlock cellular phone did not violate Fifth Amendment).