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Do I have to give my phone passcode to the police?

The short answer is no.

The issue as to whether a suspect in a criminal case can be ordered to disclose to the government the passcode to his cell phone has previously been discussed in the blog, "Can the Police Force You to Unlock Your Phone?." Last month, the 5th District Court of Appeals in Florida unequivocally answered that question in the negative in Garcia v. State, 2020 WL 5088056. 

In this case, the defendant allegedly tossed an object through the window of his ex-girlfriend, and the police were called to the scene. Inexplicably, a cell phone was left on the ground near the broken window, presumably left by the perpetrator. The victim identified the phone as belonging to Garcia, and, in the presence of law enforcement, called Garcia's number. The phone in question rang. It was later discovered that Garcia allegedly placed a GPS tracking device on the victim's vehicle that allowed her movements to be traced through a cell phone.

Garcia was charged by a litany of offenses relating to this incident, including a charge of stalking. The recovered cell phone was deemed relevant to the investigation, but was a passcode protected phone and law enforcement was unable to open the contents. So a search warrant was requested and an order was granting which would compel Garcia to provide the State with its passcode. The trial court, in issuing the warrant, determined that the forced disclosure of the passcode was not a "testimonial disclosure".

In Florida, under certain circumstances, a defendant may appeal to a higher court to determine a pre-trial issue prior to the disposition of the case, and that's what happened here. Garcia requested certiorari relief from the 5th District Court of Appeals, and it was granted. The Court held that the disclosure of the passcode was in fact testimonial in nature. The Court distinguished this situation from a situation, for example, where a defendant is required to stand in a lineup. In the situation at issue, he was required to disclose the "contents of his mind" (the passcode) and therefore it was testimonial and a violation of the 5th Amendment. The Court further ruled that the "foregone conclusion" exception did not apply, because it generally applied to physical documents, not the contents of one mind, and to take it any further would allow this exception to swallow the rule.

There are several caveats here- first, this decision is binding only in the district in Florida in which it was decided, and the same appellate court that decided the issue certified the case to the Florida Supreme Court as being in conflict with the case law from another Florida district. At some point, it appears likely that the Supreme Court of Florida will determine this issue with finality- unless there are further appeals to federal courts.

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