An attempt to order a cell phone owner to provide his password to the phone is testimonial under the Fifth Amendment. The court also concludes the foregone conclusion doctrine does not apply. Garcia v. State, 2020 Fla. App. LEXIS 12232 (Fla. 5th DCA Aug. 28, 2020):
The trial court here held that the providing of the passcode was non-testimonial, but it gave no explanation for its conclusion or ruling other than “the Stahl decision is controlling here.” In Stahl, law enforcement obtained a warrant to search the defendant’s locked phone, but the defendant refused to provide them with his passcode. 206 So. 3d at 128. The State filed a motion to compel production of the passcode, which the trial court denied, finding the production of the passcode to be testimonial. Id. The Second District Court quashed the order, holding that compelling the defendant to reveal his passcode was not testimonial because the passcode was “sought only for its content and the content has no other value or significance.” Id. at 134.
We respectfully disagree with the Second District Court. Distilled to its essence, the revealing of the passcode is a verbal communication of the contents of one’s mind. Commonwealth v. Davis, 220 A.3d 534, 548 (Pa. 2019) (“As a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind.”). We agree with Garcia that the order under review requires that he utilize the contents of his mind and disclose specific information regarding the passcode that will likely lead to incriminating information that the State will then use against him at trial. We therefore conclude that the compelled disclosure of his passcode is testimonial and is protected by the Fifth Amendment. This, however, does not end our analysis.
FOREGONE CONCLUSION DOCTRINE—
. . .
In summary, we hold that compelling a defendant, such as Garcia, to provide orally the passcode to his smartphone is a testimonial communication protected under the Fifth Amendment and that the foregone conclusion exception or doctrine does not apply to compelled oral testimony. Accordingly, we grant Garcia’s petition for writ of certiorari and quash the trial court’s order compelling him to provide his passcode to the State. We certify conflict with the Second District Court’s decision in Stahl to the extent that Stahl holds that the oral disclosure of a passcode to a passcode-protected cell phone or smartphone is non-testimonial and therefore not protected under the Fifth Amendment.