You’ve seen this movie before and it ends with a mom crying. A mom who will never be the same.
And, you hear this all the time–speed kills.
And, you hear this all the time–don’t drink and drive.
The case for today is G.A.Q.L. v. State but G.A.Q.L. is a juvenile offender so we don’t use his name, we use initials. I’m going to call him “G” for short. 2018 Fla. App. LEXIS 15240 (Fla. 4th DCA October 24, 2018).
Based on the statements above, you now know what happened, but let me give you the facts anyway. “G” was speeding, wrecked his car, and killed one of his teenage passengers. “G” is a juvenile, and his blood-alcohol level was a 0.086. Basically, that’s over four times the legal limit for minors, the limit for minors being a 0.02.
“G” survived the crash and another passenger also survived. That passenger decided to chat with the police.
The surviving passenger told the police that “G” had been drinking vodka that day (why get in the car with him? They’re kids, remember? And, I’ve rode with friends on occasion that, in hindsight, was a not so smart idea). The passenger told the police she was communicating with “G” via his iPhone that day and even after the crash. These communications became evidence of sorts, and the police were able to obtain a warrant to search “G”s iPhone 7.
Why is important for you to know that this was an iPhone 7? Well, there’s a problem with iPhone’s.
The police can’t crack them.
Now, I didn’t say the CIA couldn’t crack them. I didn’t say the NSA couldn’t crack them. We’re just talking about local “police”. Do you think the NSA gives a rat’s ass about a drunken teenage death in Florida? Of course not. Because Florida’s law enforcement will get absolutely zero assistance from the federal government’s elite cracking teams, the local police went about this the old fashioned way: they got a warrant to search the iPhone 7 and a court order demanding that “G” give up his password to the phone.
“G” isn’t giving anything up, and that’s why we have a case to talk about today. He appealed the court’s order requiring him to turn over his password (This particular appeal is called a “writ of certiorari to quash the circuit court’s order”. Did you need to know the legal term? Probably not).
To understand why the government should, or should not, be able to compel a human being to say something–a password, a confession, for example–let’s start with the basics. Hundreds of years ago, the United States Constitution was amended. Here in Florida, we amend our constitution multiple times a year. Seriously, we go crazy here with amendments. Anyway, the Fifth Amendment to the US Constitution reads, in part, that no person “shall be compelled in any criminal case to be a witness against himself”. Yes, this is where we get the phrase “I’m pleading the 5th.”
Back to “G”. If “G” tells the government his password, is he becoming a witness against himself? Well, there are entire books written on this subject. Not just articles like this, not just chapters, but heavy expensive law books. For a person to be “a witness against himself”, naturally, he’ll need to be testifying. Testimony is everything.
So, what exactly is “testimony”? “In order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself”. id. at 5, citing Doe v. United States, 487 U.S. 201, 211 (1988).
Let’s look at some of the things law enforcement gets a warrant for which sound incriminating but do not create a Fifth Amendment problem: “acts like furnishing a blood sample, providing a voice exemplar, wearing an item of clothing, or standing in a line-up are not covered by this particular Fifth Amendment protection, for they do not require the suspect to ‘disclose any knowledge he might have’ or ‘speak his guilt’.” id., citing Doe.
“In other words, the Fifth Amendment is triggered when the act compelled would require the suspect ‘to disclose the contents of his own mind‘ to explicitly or implicitly communicate some statement of fact.” id.
Are you with me here?
If you’re asked for a password to a phone, does that ‘communicate some statement of fact’? Florida courts are split on this issue, and getting back to the Doe case, here’s the classic quote to explain the password issue: “a defendant may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe–by word or deed.” Doe at 219 (Stevens, J., dissenting).
In other words, telling someone your password is like admitting to something, isn’t it?
Let’s say your wife uses your laptop and discovers that the website “Ashley Madison” is up on your screen. This is a website for married people to find other married people to have an affair with, their motto being “Life is Short, Have an Affair”. Naturally, you deny everything. So, your wife gets a court order in your divorce proceedings to divulge your password to Ashley Madison. Doesn’t this password comes with baggage? Isn’t this password testimonial in nature? “[T]he very act of revealing a password asserts a fact: that the defendant knows the password.” G.A.Q.L. at 7.
Not every court agrees that a password is testimonial. For example, in State v. Stahl, a defendant refused to give an officer the passcode to his locked phone, and the court forced Stahl to give up the passcode reasoning that it was not testimonial in nature. 206 So. 3d 124 (Fla. 2d DCA 2016).
The appeals court for “G” disagreed with Stahl, and ruled that “G” cannot be forced to turn over his password because “revealing one’s password requires more than just a physical act; instead, it probes into the contents of an individual’s mind and therefore implicates the Fifth Amendment.” id. at 6.
The state of passcode law in the State of Florida is split now: G.A.Q.L. says you don’t need to turn it over, Stahl says you must turn it over. We have five District Court of Appeals in Florida, G.A.Q.L. is the law in the Fourth DCA, Stahl is the law in the Second DCA.
As a side note, I suppose that the above conflicting cases will be resolved by the Florida Supreme Court as it pertains to the Fifth Amendment issues, but what about privacy? For example, this case dealt with an iPhone 7, but the new iPhones use facial recognition. Will the police be able to waive your phone in your face while handcuffed to unlock it? Once the police have your mugshot, would the courts permit law enforcement to utilize Hollywood make-up to recreate your face to trick your phone into unlocking? These creative ways of cracking a phone may not implicate the Fifth Amendment, but may still violate our right to privacy. Its a brave new world out there.