FL5: Compelled production of cell phone passcode was moot point for lack of prejudice

Defendant claims she was forced to give up her cell phone passcode in violation of the Fifth Amendment would state a ground for reversal in this Florida district, but she doesn’t show what came from the phone into the trial. Therefore, there is no prejudice [and the question, while “interesting” is essentially moot]. Jackson v. State, 2021 Fla. App. LEXIS 2493 (Fla. 5th DCA Feb. 19, 2021)* (aff’d per curiam), concurring opinion:

In Garcia v. State, 302 So. 3d 1051, 1055-57 (Fla. 5th DCA 2020), a decision released after briefing in the instant appeal, we disagreed with the Second District Court’s opinion in Stahl, holding instead that the compelled oral disclosure from a defendant of his or her cellphone’s passcode was a testimonial communication protected by the Fifth Amendment and that the “foregone conclusion” exception to the Fifth Amendment did not apply to compelled oral testimony.

Despite our recent decision in Garcia, I concur in the affirmance of Appellant’s convictions because she has not shown that any error in the trial court’s ruling was harmful. Appellant’s codefendant, who at an earlier separate trial was convicted of the same charges as Appellant, raised the identical issue in his direct appeal that is now being raised here: that the trial court’s order compelling him to provide his cellphone passcode to the police violated his Fifth Amendment privilege against self-incrimination. See Love v. State, 293 So. 3d 1065, 1065-66 (Fla. 5th DCA 2020). We affirmed the codefendant’s convictions, and, in specific response to this argument, wrote that while the issue was “interesting,” there was “nothing to analyze” because “[the codefendant] does not identify anything that the police obtained from his phone nor how anything obtained from his phone was used for purposes of their investigation or as evidence at trial.” Id.

Much like her codefendant, Appellant in the present appeal has failed to identify any evidence that the police obtained from the cell phone or how it was used against her for purposes of their investigation or as evidence at trial. Accordingly, affirmance is appropriate.