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The Fifth Amendment And Compelling iPhone Data Decryption

There is absolutely no consensus in State Courts or Federal Courts regarding whether compelling a defendant-arrestee to reveal an iPhone passcode to unlock the defendant's cell phone represents a constitutional violation of one's right to remain silent, or not. Unfortunately this issue has not been addressed by any state supreme court or the United States Supreme Court resulting in a smorgasbord of rulings that have no cohesiveness.

In State v. Stahl, 2016 WL 7118574 (Fla. 2d DCA 2016), the Court ruled that a putative criminal defendant can be compelled to reveal their cell phone passcode, where the police have secured a search warrant for the phone and where the State can meet the elements of The Foregone Conclusion Doctrine, namely: 1.) The State already knows that the evidence it seeks-exists on the phone with some specificity and it's location; 2.) The evidence sought was in possession of the accused (inside the cell phone) when the phone was seized; and 3.) The evidence is authentic.

The Stahl Court was silent as to whether Stahl's iPhone was passcode protected - data encrypted, or whether Stahl's iPhone was merely locked with a passcode, without encrypted data locked behind the passcode. For that single reason, the Stahl case is bad case caselaw. The Second District ruled that compelling a criminal Defendant to reveal their passcode was not testimonial in nature and that it was akin to compelling production of a fingerprint, that is not testimonial. There are no reported Florida cases dealing with the issue of whether compelling a putative defendant to decrypt evidentiary data for police by giving police an iPhone passcode that also puts the data in a readable format for police is testimonial in nature, or not. The problem is that State Of Florida prosecutors are using the Stahl case now to compel production of encrypted password protected devices. As such, the State Of Florida is doing everything it can to expand Stahl to include production of passcodes for data encrypted cell phones, notwithstanding that Stahl is silent about compelling a putative defendant to assist in his or her own prosecution by decrypting cell phone data for police to be used in his or her own prosecution! See the problem with that?

And then there is the Eleventh Circuit Court Of Appeals, Atlanta, GA, interpreting the Fifth Amendment To The United States Constitution, that Florida Courts simply refuse to follow, stating that federal caselaw is 'instructive' but not 'mandatory' on this iPhone password issue.

The Eleventh Circuit indeed makes a distinction between simply compelling a defendant to reveal a passcode needed by police to unlock an iPhone verses compelling a defendant to reveal a passcode needed by police to both unlock an iPhone, which simultaneously decrypts the data on the device so that police can read and download the data in a readable format.

In the case styled In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335, 1346, 1349 (11th Cir. 2012), the Eleventh Circuit made a line in the sand distinction between compelling a defendant to reveal an iPhone passcode verses compelling a defendant to provide an iPhone passcode that is needed to decrypt data on it for the police. The Court stated: "This type of compelled password- or passcode-based decryption is inherently testimonial. This is true for two independent reasons. First, the compelled entry of a memorized passcode forces one to reveal the contents of his or her mind to investigators—contents that are absolutely privileged by the Fifth Amendment. Second, the process of decryption itself is testimonial because it involves translating otherwise unintelligible evidence into a form that can be used and understood by investigators. Both aspects of compelled decryption—translating data from unintelligible to intelligible and providing a memorized passcode—are the types of testimonial communication that lie at the heart of the Fifth Amendment’s protection against self-incrimination. The Fifth Amendment thus provides an absolute privilege against self-incriminating compelled decryption. Moreover, even if compelled decryption were not inherently testimonial (it is), compelling Defendant to reveal iPhone passcodes in this case is unconstitutional because the information stored on Defendant’s iPhone(s) are not a foregone conclusion already known to the government." See In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335, 1346, 1349 (11th Cir. 2012).

Typically police won't be able to demonstrate with reasonable particularity that they knew of any specific texts or other files stored on an iPhone with any sort of particularity, unless text headers and missed phone calls appear on the iPhone locked screen when the locked iPhone is seized.

Here are some arguments to consider for a Motion In Opposition To State's Motion To Compel iPhone Passcode [Keep In Mind That A Search Warrant For The iPhone Has Already Been Secured]:

Prong 1 argument is that the data on the phone is not a foregone conclusion to police and attempts to compel the passcode are akin to a fishing expedition.

Prong 2 argument is that the police cannot describe with sufficient particularity and/or the exact location within the device of the data they claim to be evidence under the foregone conclusion doctrine. [iPhone Settings give a user an option to place notification headers and short blurps of message data on an otherwise locked iPhone device home screen. There are numerous reported cases where police are using these tiny blurps of home screen data to allege that the entire phones locked data must be compelled under The Foregone Conclusion Doctrine, which is absurd. How can one blurp of a text make the content of the entire locked phone a foregone conclusion. The entire proposition is ridiculous, yet Judges across the nation are permitting compelled password production now.]

Prong 3 argument is that the data on the device should not be deemed 'authentic' simply by virtue of one's possession of a passcode that unlocks the data. [Several Florida Courts have indeed stated that the mere possession of a passcode that unlocks data ipso facto covers the authenticity prong, which is a ridiculous proposition, especially in consideration that the iPhone could have been purchased used on Ebay; including the Broward County Judge referenced below.]

Prong 4 argument is that assuming arguendo the data falls within the parameters of The Foregone Conclusion Doctrine, that the Court should still deny the State's Motion To Compel iPhon Passcode Production, because the cell phone is not only locked with a passcode, but further it is encrypted by Defendant and compelling defendant to reveal the passcode is testimonial in nature and a violation of defendant's Fifth Amendment Privilege against self incrimination. [using the Eleventh Circuit case of In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335, 1346, 1349 (11th Cir. 2012)]

It is axiomatic that compelling a putative defendant to assist police and the prosecution to prosecute themselves, already 'walks like a duck', and strongly looks like a constitutional violation on it's face. Lets keep in mind defendant's constitutional right to be presumed innocent that co-exists. What about Miranda warnings? Can the police warn someone they have a right to remain silent and then when they exercise that right tell them, well, you have to tell us your passcode or you'll go to jail for contempt of court?

At present there is bad caselaw in Florida in the State v. Stahl, 2016 WL 7118574 (Fla. 2d DCA 2016) case, simply because the case does not say something like "We do not address here whether compelling defendant to decrypt password protected cell phone data is testimonial in nature."

What happens if a putative defendant is Ordered to reveal his or her iPhone passcode to police and they tell the police that they "forgot" the passcode? Again, a perilous proposition. See this article, one Miami Judge jailed a putative defendant for contempt of court, where a different Miami Judge ruled that since the State could not prove that the defendant didn't really forget the passcode that there was nothing more the court could do.

Is the United State's Constitution dead in 2018? How can we as a society jail someone for refusal to give police his or her iPhone passcode 'verbally', at the same time when they are to be presumed innocent at each and every stage and have a right not to bear witness against themselves? The answer is that we as a society either can't or shouldn't. We have become so intelligent as a society that we frequently engage in semantics instead of sticking to core constitutional analysis.

Why should a Florida Judge be permitted to overrule an Eleventh Circuit case interpreting the Fifth Amendment regarding passcode protected iPhone encrypted data? The answer is that no Florida Judge should be allowed to find the Eleventh Circuit interpretation of the United States Constitution "instructive" and not "mandatory".

Here is a typical 2018 example of an Order Granting State's Motion To Compel iPhone Password [Click Here] recently entered by a Broward Circuit Court Judge. [Contrast the Broward Circuit Court Order with this well thought out and reasoned Order from N.D. California in the case of United States v. Spencer, dated April 26, 2018 citing the Eleventh Circuit.] The Broward Order compels Defendant to produce her iPhone passcode, notwithstanding that the iPhone's data is encrypted. The Eleventh Circuit caselaw (which covers Florida for federal law) makes compelled password production for this particular defendant's iPhone 'testimonial' in nature, and a violation of this particular defendant's Fifth Amendment Right To Remain Silent under the United States Constitution. Article 1 Section 9 of the Florida Constitution is the Fifth Amendment to the United States Constitution. In order to avoid or ignore or scurry around the 'on point' tenets espoused in the case styled: In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335, 1346, 1349 (11th Cir. 2012), the Broward County Judge cited a S.D. California District Court case supporting the Court's position. Then the Court stated that the Court has discretion not to follow Eleventh Circuit Court caselaw interpreting the Fifth Amendment, because federal caselaw is "merely persuasive" to Florida Courts, but then follows a different federal case from California to support his ruling. The Court ruled that knowledge of the passcode itself makes the data on the iPhone authentic [which requires the use of a Ouija Board to make that profound connection.] Reading through the lines here, the Broward County Judge found California federal caselaw more persuasive than Florida federal caselaw on the same point for no articulable legal reason. The end result is that the Judge wanted the police to enter and download this defendant's iPhone. Orders like this one eventually tend to both expand bad caselaw, unnecessarily, and further the erosion of the United States Constitution for no valid reason.

In the event your Client is compelled to produce his or her iPhone passcode, post arrest, you will have many things to research and think about. Many times the police have nothing concrete except the iPhone with a handful of header texts on an otherwise locked iPhone. The purpose of this Article is to put some of those issues on the table for you for further examination. This issue remains wide open in 2018 without any meaningful consensus in various state or federal courts, or even between judges housed in the same courthouse. In the Author's opinion that represents a pathetic display of judicial authority, likely based on political affiliation, cronyism, fear of making the correct unpopular ruling, or a litany of other biased reasons for improperly ruling justly. Google articles across the United States where citizens who have not been convicted of anything are being Ordered to reveal their iPhone passcodes under penalty of contempt of court and jailtime to see how massive this current issue has become. Many of those Citizens are being jailed for refusal to reveal their iPhone passcodes, with no conviction of the charges for which they were arrested to begin with.

Perhaps one day soon the United States Supreme Court will look at this issue and bring finality to this issue, but for now it appears that "it depends" on many factors, including which Judge one gets in order to determine whether that Judge will do the right thing or not, when presented with federal appellate caselaw on point interpreting the federal constitutional right to remain silent of a citizen accused.

This article is for informational and educational purposes only and should not be construed as constituting legal advice. It is intended to provoke critical thinking related to the issues presented. The opinions rendered are the opinions of the Author, a non attorney. Nothing presented in this Article should be interpreted as legal advice as any such interpretation is unintended. In fact it is not legal advice and was written by a non-attorney. You should consult with your attorney to determine the best course of action to take on your case.

Copyright 2018 All Right Reserved, by Joseph J. Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered, Fort Lauderdale, Florida

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