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Florida Court rules phone passcode is protected by 5th Amendment

by | Sep 1, 2020

In one of a series of similar cases in Florida and across the country, an appeals court has overturned an Orange County circuit judge’s order requiring a criminal defendant to turn over the passcode to his cell phone. A three-judge panel of the 5th District Court of Appeal on Friday ruled that forcing Jonathan David Garcia to provide the passcode to unlock his phone would violate his 5th Amendment right against self-incrimination.

Garcia was arrested on charges including stalking and criminal mischief after an incident in which a window was broken at a home where his former girlfriend and her present boyfriend were inside. Garcia’s phone was found at the scene, and police obtained a warrant to search the phone. But officers were not able to unlock the phone because of the passcode.

A circuit judge subsequently issued an order compelling Garcia to provide the passcode. But a three-judge panel of the appeals court said Garcia should not be required to turn over the information.

“Distilled to its essence, the revealing of the passcode is a verbal communication of the contents of one’s mind,” said the 11-page ruling, written by Judge Brian Lambert and joined by Judges John Harris and Jamie Grosshans. “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. We therefore conclude that the compelled disclosure of his passcode is testimonial and is protected by the Fifth Amendment.”

The panel acknowledged that its ruling conflicted with a decision by the 2nd District Court of Appeal in a separate case. It asked the Florida Supreme Court to resolve the issues, a step known as certifying questions of “great public importance” to the Supreme Court.

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