Phone passcode poses question for justices
Executive Editor, News Service of Florida
Tuesday, October 26, 2021
"Encrypting mobile phone - Samsung Galaxy S6, Android" by Tony Webster is licensed under CC BY-SA 2.0
This story was originally published by the News Service of Florida.
TALLAHASSEE --- When police responded in 2018 to a call about a shattered window at a home in Orange County, they found a black Samsung smartphone near the broken window.
A woman in the home identified the phone as belonging to an ex-boyfriend, Johnathan David Garcia, who was later charged with crimes including aggravated stalking.
But more than three years after the shattered window, the Florida Supreme Court is poised to hear arguments in the case and consider a decidedly 21st Century question: Should authorities be able to force Garcia to give them his passcode to the phone?
Attorney General Ashley Moody’s office appealed to the Supreme Court last year after the 5th District Court of Appeal ruled that requiring Garcia to turn over the passcode would violate his constitutional right against being forced to provide self-incriminating information.
The 5th District Court of Appeal decision conflicted with an earlier ruling by the 2nd District Court of Appeal in an unrelated case, teeing the issue up for the Supreme Court to resolve the dispute. The case has drawn briefs from civil-liberties and defense-attorney groups, who contend that Garcia’s rights under the U.S. Constitution’s 5th Amendment would be threatened if he is required to provide the passcode.
But Moody’s office in a March brief warned of trouble for law enforcement if the Supreme Court sides with Garcia in an era when seemingly everybody has a cell phone. Police obtained a warrant to search Garcia’s phone but could not do so without a passcode.
“Modern encryption has shifted the balance between criminals and law enforcement in favor of crime by allowing criminals to hide evidence in areas the state physically cannot access,” the brief said. “The Fifth Amendment should not be interpreted to now allow criminals to use it as a shield in ways never understood by the Framers.”
But attorneys for Garcia in a June brief argued the case is about “which vision of the right against compelled self-incrimination prevails: those of the Founders who erred on the side of personal liberty or those who defend governmental powers to extract testimony.”
“The state advocates gutting the Fifth Amendment for the sake of convenience,” Garcia’s attorneys wrote. “Compelling defendants to tell the government their passcodes is a convenient way for the state to claw into the endless stores of personal information on a person’s smartphone. This unchecked power to sift through an unlimited digital record of the intricate details of a person’s life encourages the government to cast a wide net for its agents to fish for evidence of wrongdoing.”
The Supreme Court is scheduled to hear arguments Nov. 3. Justice Jamie Grosshans was part of a panel of the 5th District Court of Appeal that ruled in Garcia’s favor in August 2020, about a month before she was appointed to the Supreme Court.
Among the issues in the case is whether requiring Garcia to provide the passcode would be what is known as “testimonial” communication that would violate his rights against self-incrimination.
An Orange County circuit judge issued an order for Garcia to turn over the passcode, but the order was overturned by the appeals court.
“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,” the appeals court opinion said. “We therefore conclude that the compelled disclosure of his passcode is testimonial and is protected by the Fifth Amendment.”
In the June brief, Garcia’s attorneys raised similar arguments.
“If Garcia knows the passcode and can comply with the order, his testimony would confirm the state’s otherwise unproven assertion that he owns the phone and controlled it at the time of the incident,” the brief said. “The state will use that inference to tie Garcia to any incriminating data on the smartphone. The state is also relying on the ‘truth-telling’ element of the compelled testimony to prove Garcia’s knowledge of the passcode, and thus his prior possession and ownership of the smartphone.”
But Moody’s office in the March brief disputed that requiring Garcia to give the passcode would amount to testimony.
“At bottom, the state asks respondent (Garcia) not for testimony, but for access to a device it has a warrant to search,” the attorney general’s brief said. “Because the compelled act is not functionally different than requiring a defendant to unlock the door to a home or turn over the key to a lockbox, no testimony is involved. For that reason alone, respondent cannot refuse to disclose his passcode.”