                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                                 IN THE DISTRICT COURT OF APPEAL

                                                 OF FLORIDA

                                                 SECOND DISTRICT



STATE OF FLORIDA,                                )
                                                 )
               Petitioner,                       )
                                                 )
v.                                               )      Case No. 2D14-4283
                                                 )
AARON STAHL,                                     )
                                                 )
               Respondent.                       )
                                                 )

Opinion filed December 7, 2016.

Petition for Writ of Certiorari to the Circuit
Court for Sarasota County; Frederick P.
Mercurio, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Bilal A. Faruqui, Assistant
Attorney General, Tampa, for Petitioner.

Howard L. Dimmig, II, Public Defender, and
Tosha Cohen, Assistant Public Defender,
Bartow, for Respondent.




BLACK, Judge.
              The State seeks a writ of certiorari quashing the trial court's order denying

the State's motion to compel the production of the passcode to unlock Aaron Stahl's

cellphone. We grant the petition and quash the order.

I.     Background

              Stahl was charged with video voyeurism in violation of section

810.145(2)(c), Florida Statutes (2014), a third-degree felony. The probable cause

affidavit for Stahl's arrest stated that the victim was shopping in a store when she

observed a man crouching down with what she believed was a cellphone in his hand.

She saw that the screen of the cellphone was illuminated. She then observed the man

with his arm extended, holding the cellphone under her skirt. The victim confronted him,

and the man told her that he had dropped his cellphone. While yelling for assistance,

the victim attempted to detain the man, but he was able to free himself and flee the

store before assistance arrived.

              Store surveillance video confirmed that the man crouched down with an

illuminated device in his hand, moving it toward the victim's skirt. It also showed the

man exit the store and get into a vehicle in the parking lot. Using the vehicle's license

plate number, law enforcement identified Stahl as the registered owner of the vehicle

and obtained his driver's license photo. Law enforcement positively identified Stahl as

the man in the surveillance video.

              Stahl was arrested but a cellphone was not found on his person. During

an interview with law enforcement, Stahl admitted to being in the store, denied taking

inappropriate images, and verbally consented to a search of his cellphone, which he




                                           -2-
identified as an Apple iPhone 5 located in his residence. After officers retrieved the

cellphone from Stahl's residence, Stahl withdrew his consent to search the phone.

              The next day law enforcement sought a search warrant for the contents of

Stahl's cellphone. The search warrant affidavit described the phone as an Apple iPhone

5 with a cracked screen and a piece of glass missing from the top right corner. It also

listed the phone number associated with the phone and the service provider. The

search warrant affidavit provided that the victim believed the device in Stahl's hand to

be a cellphone and that when she confronted Stahl, he told the victim he had dropped

his cellphone. It further provided that Stahl initially consented to a search of his iPhone

5 and that he confirmed the phone number and provided the location of the phone. A

search warrant was issued for the contents of the described Apple iPhone 5.

              However, the State was unable to execute the warrant and view the

contents of the phone because Stahl's cellphone is passcoded and he refused to give

law enforcement the passcode. As a result, the State filed a motion to compel

production of the passcode. The State alleged that without compelling Stahl to provide

the passcode, law enforcement's only option would be to send the phone to Apple to

obtain the passcode.1 The State also alleged that there is no Fifth Amendment



              1
                The State contended that sending the phone to Apple would create chain
of custody concerns because it did not "know who would have it at the manufacturer,
what they would have to do to get into it" and that timeliness was an issue because the
manufacturer indicated that the phone would be logged in to the system, only worked on
after receipt of a court order, and then shipped back. At the time the State filed its
motion, it was known that devices running certain versions of Apple's operating system
would permanently lock and potentially erase all of the device's content after ten failed
attempts to enter the passcode, but it was unknown that "[f]or all devices running iOS 8
and later versions, Apple will not perform iOS data extractions in response to
government search warrants because the files to be extracted are protected by an
encryption key that is tied to the user's passcode, which Apple does not possess."


                                            -3-
implication in compelling Stahl to give officers the passcode in this case. 2 Stahl did not

file any response to the motion.

              At the hearing on the State's motion to compel, neither side presented

testimony or evidence; only argument was presented. In denying the motion, the trial

court found that the Fifth Amendment privilege against self-incrimination applied such

that Stahl could not be compelled to produce the passcode. The court determined that

production of the passcode was testimonial and that the State had not sufficiently

established that the foregone conclusion doctrine applied.

              The State appealed the order denying its motion, contending the order

was reviewable pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B),

permitting State appeals from orders suppressing evidence obtained by search and

seizure.3 In response to an order to show cause why this case should not be dismissed

as from a nonfinal, nonappealable order, the State contended that if not appealable as

an order suppressing evidence, the order is reviewable by petition for writ of certiorari.




Privacy, Apple Inc., https://www.apple.com/privacy/government-information-requests/
(last visited Oct. 20, 2016). Unlike In re Order Requiring Apple, Inc. to Assist in the
Execution of a Search Warrant Issued by this Court, 149 F. Supp. 3d 341 (E.D. N.Y.
2016), the State is apparently unable to determine what iOS is installed on Stahl's
phone.
              2
             Nothing in our record establishes whether Stahl invoked his Fifth
Amendment privilege against self-incrimination or the State preemptively raised the
issue. See amend. V, U.S. Const.
              3
              Because a warrant has been issued allowing the State to search Stahl's
phone, the order denying the motion to compel is more akin to an order suppressing
evidence than to an order denying discovery. Cf. State v. Isaac, 696 So. 2d 813, 813
(Fla. 2d DCA 1997); State v. Foley, 193 So. 3d 24, 26 (Fla. 3d DCA 2016).



                                            -4-
This court subsequently issued an order converting the appeal to a petition for writ of

certiorari and directing the parties to address the certiorari standard.

II.    Standard of Review

                       The ability of the district courts of appeal to entertain
              [S]tate petitions for certiorari to review pretrial orders in
              criminal cases is important to the fair administration of
              criminal justice in this state. Otherwise, there will be some
              circumstances in which the [S]tate is totally deprived of the
              right of appellate review of orders which effectively negate its
              ability to prosecute. If a nonfinal order does not involve one
              of the subjects enumerated in Florida Rule of Appellate
              Procedure 9.140(c)(1), the [S]tate would not be able to
              correct an erroneous and highly prejudicial ruling. Under
              such circumstances, the [S]tate could only proceed to trial
              with its ability to present the case significantly impaired.
              Should the defendant be acquitted, the principles of double
              jeopardy prevent the [S]tate from seeking review; thus, the
              prejudice resulting from the earlier order would be
              irreparable.

State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988). Where the State has met the

jurisdictional requirements for a writ of certiorari—a ruling that significantly impairs the

State's ability to prosecute which could not be remedied via postjudgment appeal—and

has established that the trial court violated a clearly established principle of law,

issuance of a writ of certiorari is "an apt remedy." Id.; see also State v. Fernandez, 141

So. 3d 1211, 1216 (Fla. 2d DCA 2014) ("[T]he trial court's pretrial order would leave the

State without an effective remedy and cause irreparable harm. Accordingly, this is a

case where certiorari review is an 'apt remedy.' " (quoting Pettis, 520 So. 2d at 253));

State v. Sandoval, 125 So. 3d 213, 215 (Fla. 4th DCA 2013) ("To obtain certiorari relief

from a pretrial evidentiary ruling, the [S]tate must show that the ruling was a violation of

a clearly established principle of law resulting in a miscarriage of justice."). Here, the




                                             -5-
order is not appealable pursuant to rule 9.140(c)(1) and the State cannot appeal an

acquittal. See Pettis, 520 So. 2d at 253.

              Stahl was charged with the third-degree felony of video voyeurism by

"intentionally us[ing] an imaging device to secretly view, broadcast, or record under or

through the clothing being worn by another person, without that person's knowledge and

consent, for the purpose of viewing the body of, or the undergarments worn by, that

person" for his "amusement, entertainment, sexual arousal, gratification, or profit." §

810.145(2)(c). A necessary element of the crime is the use of an imaging device,

defined as "any mechanical, digital, or electronic viewing device; still camera;

camcorder; motion picture camera; or any other instrument, equipment, or format

capable of recording, storing, or transmitting visual images of another person." §

810.145(1)(b). Absent photographic or video evidence of the crime, the State's case

would rest solely on the victim's statements and the video surveillance depicting Stahl

moving a device in his hand toward the victim's skirt. It is apparent that the trial court's

ruling serves as a serious impediment to the State's case if it does not altogether

destroy it. The court's order denies the State the ability to execute an unchallenged

search warrant, effectively denying the State access to what is likely to be direct

evidence establishing elements of the charged offense. Cf. State v. Crumbley, 143 So.

3d 1059, 1065-66 (Fla. 2d DCA 2014) ("This appeal involves an order that prevents the

State from developing its evidence in the criminal case . . . . The order not only

suppresses the evidence, it seals the information so that the State can never know what

evidence is contained within the sealed documents.").

III.   The hearing




                                            -6-
              At the hearing on the State's motion, the court began by asking various

questions. The court inquired "How do I know that there was a picture taken?" and

"What evidence are you asking me to rely on that gives me probable cause to believe a

picture was taken?" The State responded that a warrant had been issued for the

contents of the phone and probable cause was "not the issue at this point" but that

based on the circumstances, the State believed there were photographs or video taken,

based on the surveillance video and the victim's statements.4 The State then set forth

why the Fifth Amendment privilege against self-incrimination is not implicated,

identifying the three requirements necessary for a defendant to successfully invoke the

privilege. The State argued that there was no difference between the court finding

probable cause to issue the warrant and compelling Stahl to assist the State in "opening

up" the phone. The State further argued that law enforcement's forensic expert had

advised that he could not gain access to the phone because of the passcode and that if

he tried to enter every possible combination the phone could permanently lock and

potentially erase all of the contents.5




              4
               The trial court's focus on probable cause was misplaced. The State had
a search warrant for the contents of the phone. Stahl has not challenged the validity or
execution of that warrant. The only issue before the court was whether it could compel
Stahl to provide the passcode.
              5
               The State made no mention of whether it had attempted to compel Stahl
to unlock the phone using his fingerprint. At least one court has held that compelling a
witness to use his fingerprint to unlock or access his cellphone is not testimonial. See
Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014). Nor has the State
attempted to compel Stahl to produce the contents of the phone without divulging the
passcode. Cf. In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670
F.3d 1335 (11th Cir. 2012).



                                          -7-
                The court stated that while probable cause existed for the search warrant,

the State did not know "for sure" whether a photo or video was on the phone. The court

was incredulous that this was a case of first impression, but the State maintained that a

dearth of case law existed. The court asked whether the State knew if there was

additional security or encryption on the phone or the portion of the phone that stores

photographs. Attempting to focus the issue on whether the giving of the passcode itself

is testimonial, the State cited In re Grand Jury Subpoena Duces Tecum Dated March

25, 2011, 670 F.3d 1335 (11th Cir. 2012), for the principle that production of the

passcode would not be testimonial under the foregone conclusion doctrine—where the

location, existence, and authenticity of the requested information are known with

reasonable particularity. The State went so far as to agree to give Stahl immunity for

the act of providing the passcode. When pressed by the court, the State conceded that

"in the most technical sense" the court would be forcing Stahl to "use the contents of his

mind" in compelling him to provide the passcode.

                Stahl argued that the State did not establish the three prongs of the

foregone conclusion doctrine. He contended that the State failed to establish location

because it was unable to prove that the phone in the State's possession is the phone

Stahl allegedly had at the store. He argued that the phone in the State's possession

came from a home in which multiple people lived and that the State presented no

evidence to show that the phone was Stahl's or that it was the phone from the store

surveillance.

                In reply, the State argued that it did not have to meet the foregone

conclusion elements until it had been determined that the Fifth Amendment privilege




                                             -8-
against self-incrimination was applicable. The State reiterated its position that the

privilege is not implicated because providing the passcode is not testimonial.

              In its written order denying the State's motion, the court found that

production of the passcode would require the use of the contents of Stahl's mind and

was therefore testimonial. The court then found that the State had not satisfied the

reasonable particularity standard of the foregone conclusion doctrine.

IV.    Analysis

       A.     The privilege

              The Fifth Amendment to the United States Constitution provides in

pertinent part that "[n]o person . . . shall be compelled in any criminal case to be a

witness against himself[.]" Amend. V, U.S. Const. This privilege against self-

incrimination "protects a person only against being incriminated by his own compelled

testimonial communications." Doe v. United States, 487 U.S. 201, 207 (1988) (quoting

Fisher v. United States, 425 U.S. 391, 409 (1976)); see also Kessler v. State, 991 So.

2d 1015, 1021 (Fla. 4th DCA 2008) ("The Fifth Amendment privilege protects an

accused from being compelled to testify against himself, or otherwise provide the state

with evidence of a testimonial or communicative nature." (citing Schmerber v. California,

384 U.S. 757, 763 (1966))). "The word 'witness' in the constitutional text limits the

relevant category of compelled incriminating communications to those that are

'testimonial' in character." United States v. Hubbell, 530 U.S. 27, 34 (2000); see also

Heddon v. State, 786 So. 2d 1262, 1263 (Fla. 2d DCA 2001) (stating that the privilege

against self-incrimination "only precludes forcing an accused to produce incriminating

testimonial communications"). "[I]n order to be testimonial, an accused's




                                            -9-
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." Doe,

487 U.S. at 210 (footnote omitted).

              In order for Stahl to have properly invoked his Fifth Amendment privilege

he needed to establish three things: (1) compulsion, (2) a testimonial communication or

act, and (3) incrimination. In re Grand Jury Subpoena Duces Tecum Dated Mar. 25,

2011, 670 F.3d at 1341 (In re Grand Jury). "Once an individual has invoked his

privilege against self-incrimination, it becomes the duty of the trial court to determine

whether there is a reasonable basis for the assertion of the privilege and whether the

privilege has been invoked in good faith." St. George v. State, 564 So. 2d 152, 155

(Fla. 5th DCA 1990). Because the State does not contend otherwise, for purposes of

this opinion, we presume that Stahl invoked the privilege.6

              Although not expressly stated, it is apparent from the record and from the

State's filings with this court that the State concedes that producing the password to the

phone would be incriminatory. See Commonwealth v. Gelfgatt, 11 N.E.3d 605, 612

(Mass. 2014) ("[T]he entry of the encryption key or password presumably would be

incriminating because 'it would furnish the Government with a link in the chain of



              6
                Although the transcript of the proceedings below makes it clear that the
court did not require Stahl to establish the three components of the privilege but rather
assumed the privilege applied and placed the burden on the State to rebut or overcome
the claim, we recognize that the somewhat unusual procedural posture in which the
issue arose likely caused this burden shift. Cf. State v. Mitrani, 19 So. 3d 1065, 1068
(Fla. 5th DCA 2009) ("If a witness rightfully invokes the privilege against self-
incrimination, the State may overcome the claim of privilege . . . ."); In re Grand Jury,
670 F.3d at 1341 ("An individual must show three things to fall within the ambit of the
Fifth Amendment . . . ."). Despite this apparent error, the State does not raise the
burden shift as a basis to grant certiorari relief.



                                            - 10 -
evidence leading to [the defendant's] indictment.' " (second alteration in original)

(quoting Doe, 487 U.S. at 207 n.5)). It also appears that the State has conceded that

producing the password would be compelled within the meaning of the privilege.7 Thus,

the crux of the State's argument below, and its argument as to the trial court's departure

from the essential requirements of the law, is whether the State sought protected

testimony from Stahl.

       B.     Act of Production

              The Fifth Amendment privilege against self-incrimination has been held to

apply not only to verbal and written communications but also to the production of

documents, usually in response to a subpoena or summons, because the act of

production itself could communicate incriminatory statements. See Fisher, 425 U.S. at

410. The courts that have addressed the Fifth Amendment implications for providing

decryption keys and passcodes have largely applied the act-of-production doctrine and

the foregone conclusion exception. See, e.g., Sec. & Exch. Comm'n v. Huang, No. 15-

269, 2015 WL 5611644, *1 (E.D. Penn. Sept. 23, 2015); United States v. Fricosu, 841



              7
               We do not believe it is at all clear that producing the password is
compelled within the meaning of the privilege because it is a "settled proposition that a
person may be required to produce specific documents even though they contain
incriminating assertions of fact or belief because the creation of those documents was
not 'compelled' " but was voluntary. Hubbell, 530 U.S. at 35-36 (emphasis added); see
Fisher, 425 U.S. at 409-10. That is, Stahl may be required to produce the password
even though it may be testimonial and incriminate him because the creation of the
password was not compelled. Stahl is not being asked to cull through existing
documents and assemble a set of documents which he believes are responsive to the
subpoena—something newly created and compelled to be created pursuant to
subpoena. See In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d
87, 93 (2d Cir. 1993) ("Self-incrimination analysis now focuses on whether the creation
of the thing demanded was compelled and, if not, whether the act of producing it would
constitute compelled testimonial communication.").



                                           - 11 -
F. Supp. 2d 1232, 1235 (D. Col. 2012); In re Grand Jury Subpoena to Boucher (In re

Boucher), 2:06-MJ-91, 2009 WL 424718, *2-3 (D. Vt. Feb. 19, 2009); Gelfgatt, 11

N.E.3d at 612; Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014). But see

United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (concluding that

providing the password was testimony protected by the privilege against self-

incrimination).

              Invoking the privilege still requires the accused to establish compulsion, a

testimonial communication, and incrimination. And as we have said, in this case

compulsion and incrimination are not at issue, leaving only the testimonial element.

Testimonial elements of production include (1) the existence of the documents, (2) the

accused's possession or control of the documents, and (3) the authenticity of the

documents. Hubbell, 530 U.S. at 36.8

              It bears repeating that the information sought by the State, that which it

would require Stahl to provide, is the passcode to Stahl's iPhone—the iPhone that the

State had a warrant to search based on probable cause that the phone was used in

Stahl's commission of the crime of video voyeurism. The State has not asked Stahl to

produce the photographs or videos on the phone.9 But the fact that the State sought



              8
              We note that the contents of Stahl's phone are neither at issue nor
privileged. See United States v. Doe, 465 U.S. 605, 612 (1984); In re Boucher, 2009
WL 424718 at *2.
              9
                Neither the State nor Stahl addresses the State's request as anything but
an act of production. This is likely because relevant—but not determinative—case law
addresses the privilege in the context of producing decrypted documents or files, clearly
acts of production. See, e.g, Fricosu, 841 F. Supp. 2d at 1235 ("[T]he government
seeks a writ . . . requiring Ms. Fricosu to produce the unencrypted contents of the
computer."); In re Boucher, 2009 WL 424718 at *1 ("[T]he Government stated that it
does not in fact seek the password for the encrypted hard drive, but requires Boucher to


                                           - 12 -
production of the passcode itself and not production of the contents of Stahl's phone

does not resolve the issue before us because the State does not contend the court

departed from the requirement of law by applying the act-of-production doctrine.

               "The difficult question whether a compelled communication is testimonial

for purposes of applying the Fifth Amendment often depends on the facts and

circumstances of the particular case." Doe, 487 U.S. at 214-15. Here, the trial court

rested its determination that producing the passcode would be testimonial exclusively

on the concept that production would require "the use of the contents" of Stahl's mind.

The phrase "the contents of the accused's mind" has often been repeated in cases

discussing the privilege. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 211; In re

Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. And although the trial

court correctly quoted the Eleventh Circuit's statement in In re Grand Jury, that "[t]he

touchstone of whether an act of production is testimonial is whether the government

compels the individual to use 'the contents of his own mind' to explicitly or implicitly

communicate some statement of fact," 670 F.3d at 1345, the trial court did not consider

the law as stated in Hubbell and Doe—that the contents of the accused's mind must be

"extensive[ly] use[d]" in creating the response, Hubbell, 530 U.S. at 43, or must "relat[e]




produce the contents of his encrypted hard drive in an unencrypted format by opening
the drive before the grand jury."); Gelfgatt, 11 N.E.3d at 612 ("The Commonwealth . . .
is seeking to compel the defendant to decrypt 'all' of the 'digital storage devices that
were seized from him.' "). And it is not entirely clear from the record whether the State
wants Stahl to testify to the passcode or to enter it into the phone. Cf. Gelfgatt, 11
N.E.3d at 611. If the former, the State's request could be considered under the
traditional analysis of the self-incrimination privilege—that of verbal communications.



                                            - 13 -
him to the offense," Doe, 487 U.S. at 2013.10 That is, "it is not enough that the

compelled communication is sought for its content. The content itself must have

testimonial significance." Doe, 487 U.S. at 211 n.10 (emphasis added) (first citing

Fisher, 425 U.S. at 408; then citing Gilbert v. California, 388 U.S. 263, 267 (1967); and

then citing United States v. Wade, 388 U.S. 218, 222 (1967)).

              In this case, the communication was sought only for its content and the

content has no other value or significance.11 By providing the passcode, Stahl would

not be acknowledging that the phone contains evidence of video voyeurism. See Doe,

487 U.S. at 215. Moreover, although the passcode would allow the State access to the

phone, and therefore to a source of potential evidence, the State has a warrant to

search the phone—the source of evidence had already been uncovered. See id.

Providing the passcode does not "betray any knowledge [Stahl] may have about the

circumstances of the offenses" for which he is charged. See id. at 219 (Stevens, J.,

dissenting). It does not implicitly "relate a factual assertion or disclose information."



              10
                  Although the phrase "the use of the contents of the accused's mind" has
been used in act-of-production cases, we note that the case cited by the Eleventh
Circuit for its proposition that the use of the contents of the accused's mind is the
touchstone of whether an act of production is testimonial does not so hold. Curcio v.
United States, 354 U.S. 118 (1957), provides that there "is a great difference" between
compelled production of documents and compelled testimony, specifying that testifying
as to the location of documents "requires him to disclose the contents of his own mind."
Id. at 127-28.
              11
                We recognize that the court in Kirschner reached the opposite
conclusion, but because Kirschner provides no facts regarding the crimes or evidence
linking Kirschner to the computer and the computer to the crimes, we cannot discuss
the case except to say that our reading of the cases relied upon in Kirschner leads to
the conclusion that the statement must have value beyond its actual content. We
believe the facts here set forth one of the "very few instances in which a verbal
statement, either oral or written, will not convey information or assert facts," and
therefore would not be testimonial. Cf. Doe, 487 U.S. at 213.


                                            - 14 -
Doe, 487 U.S. at 210, 215. Thus, "compelling a suspect to make a nonfactual

statement that facilitates the production of evidence" for which the State has otherwise

obtained a warrant based upon evidence independent of the accused's statements

linking the accused to the crime does not offend the privilege. See id. at 213 n.11. "If a

compelled statement is 'not testimonial and for that reason not protected by the

privilege, it cannot become so because it will lead to incriminating evidence.' " Id. at

208-09 n.6 (quoting In re Grand Jury Subpoena, 826 F.2d 1166, 1172 n.2 (2d Cir. 1987)

(Newman, J., concurring)). The trial court's reliance solely on the passcode being the

contents of Stahl's mind was a departure because the standard requires something

more.

              That an accused may be "forced to surrender a key to a strongbox

containing incriminating documents," but he cannot "be compelled to reveal the

combination to his wall safe," Doe, 487 U.S. at 219 (Stevens, J., dissenting), is another

often repeated quote. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 210 n.9; In

re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. Despite the many

cases referencing the quote, we have found none that provide details of "surrender[ing]

a key." We question whether identifying the key which will open the strongbox—such

that the key is surrendered—is, in fact, distinct from telling an officer the combination.

More importantly, we question the continuing viability of any distinction as technology

advances. See Fisher, 425 U.S. at 407 ("Several of Boyd[ v. United States, 116 U.S.

616 (1886)]'s express or implicit declarations have not stood the test of time."). In that

respect, we are not inclined to believe that the Fifth Amendment should provide greater

protection to individuals who passcode protect their iPhones with letter and number




                                           - 15 -
combinations than to individuals who use their fingerprint as the passcode. Compelling

an individual to place his finger on the iPhone would not be a protected act; it would be

an exhibition of a physical characteristic, the forced production of physical evidence, not

unlike being compelled to provide a blood sample or provide a handwriting exemplar.

See Hubbell, 530 U.S. at 35 (and cases cited therein); see also Baust, 89 Va. Cir. 267

at *4.12

       C.     Foregone Conclusion

              However, even the testimonial communication implicit in the act of

production does not rise "to the level of testimony within the protection of the Fifth

Amendment" where the State has established, through independent means, the

existence, possession, and authenticity of the documents. Fisher, 425 U.S. at 411.

That is, by implicitly admitting the existence of the evidence requested and that it is in

the accused's possession the accused "adds little or nothing to the sum total of the

Government's information"; the information provided is a foregone conclusion. Id. "In




              12
                   These considerations, we believe, allow for the balance spoken of in
Doe and Schmerber, among others. See Doe, 487 U.S. at 213 ("Even if some of the
policies underlying the privilege might support petitioner's interpretation of the privilege,
'it is clear that the scope of the privilege does not coincide with the complex of values it
helps to protect. Despite the impact upon the inviolability of the human personality, and
upon our belief in an adversary system of criminal justice in which the Government must
produce the evidence against an accused through its own independent labors, the
prosecution is allowed to obtain and use . . . evidence which although compelled is
generally speaking not "testimonial" . . . .' " (quoting Marchetti v. United States, 390 U.S.
62, 72 (1968) (Brennan J., concurring))); Schmerber, 384 U.S. at 762-63 ("[T]he
privilege has never been given the full scope which the values it helps to protect
suggest. History and a long line of authorities in lower courts have consistently limited
its protection to situations in which the State seeks to submerge those values by
obtaining the evidence against an accused through 'the cruel, simple expedient of
compelling it from his own mouth.' ").



                                           - 16 -
essence, under the 'foregone conclusion' exception to the Fifth Amendment privilege,

the act of production does not compel a defendant to be a witness against himself."

Gelfgatt, 11 N.E.3d at 615.

              In order for the foregone conclusion doctrine to apply, the State must

show with reasonable particularity that, at the time it sought the act of production, it

already knew the evidence sought existed, the evidence was in the possession of the

accused, and the evidence was authentic. In re Grand Jury, 670 F.3d at 1344.13

Although the State need not have "perfect knowledge" of the requested evidence, it

"must know, and not merely infer," that the evidence exists, is under the control of

defendant, and is authentic. United States v. Greenfield, No. 15-543, 2016 WL

4073250, *6-7 (2d Cir. Aug. 1, 2016). Where the foregone conclusion exception

applies, "[t]he question is not of testimony but of surrender." Fisher, 425 U.S. at 411

(quoting In re Harris, 221 U.S. 274, 279 (1911)).

              To know whether providing the passcode implies testimony that is a

foregone conclusion, the relevant question is whether the State has established that it

knows with reasonable particularity that the passcode exists, is within the accused's

possession or control, and is authentic. See In re Boucher, 2009 WL 424718 at *3

("The Government thus knows of the existence and location of the Z drive and its files."

(emphasis added)). But see Baust, 89 Va. Cir. 267 ("Contrary to the Commonwealth's

assertion, the password is not a foregone conclusion because it is not known outside of



              13
                 As noted by the Eleventh Circuit, at the time it adopted the "reasonable
particularity" standard, the Ninth and D.C. Circuits had also adopted the standard. In re
Grand Jury, 670 F.3d at 1344 n.20. The Second Circuit has also adopted the standard.
United States v. Greenfield, No. 15-543, 2016 WL 4073250, *6 (2d Cir. Aug. 1, 2016).



                                            - 17 -
Defendant's mind." (emphasis added)). The question is not the State's knowledge of

the contents of the phone; the State has not requested the contents of the phone or the

photos or videos on Stahl's phone. Cf. In re Grand Jury, 670 F.3d at 1346-47

(concluding that "[n]othing in the record before us reveals that the Government knows

whether any files exist and are located on the hard drives" where the Government

requested production of the contents of the hard drives).14 But see Huang, 2015 WL

5611644 at *3 (stating that, where the SEC sought passcodes and not the contents of

the smartphones, "the SEC proffers no evidence rising to a 'reasonable particularity' any

of the documents it alleges reside in the passcode protected phones." (emphasis

added)). The State established that the phone could not be searched without entry of a

passcode. A passcode therefore must exist. It also established, with reasonable

particularity based upon cellphone carrier records and Stahl's identification of the phone

and the corresponding phone number, that the phone was Stahl's and therefore the

passcode would be in Stahl's possession. That leaves only authenticity. And as has

been seen, the act of production and foregone conclusion doctrines cannot be

seamlessly applied to passcodes and decryption keys. If the doctrines are to continue

to be applied to passcodes, decryption keys, and the like, we must recognize that the

technology is self-authenticating—no other means of authentication may exist. Cf.

Greenfield, 2016 WL 4073250 at *8 (recognizing "[i]mplicit authentication" of documents



             14
                The Eleventh Circuit explained that the subpoena at issue directed Doe
to appear before a grand jury "and produce the unencrypted contents" of hard drives
and "any and all containers or folders thereon." In re Grand Jury, 670 F.3d at 1339.
The hard drives were seized pursuant to a warrant, which presumably also allowed the
Government to search the drives. The focus of the Government's request was the
contents of the drives, not the decryption key.



                                          - 18 -
(alteration in original) (quoting United States v. Fox, 721 F.2d 32, 38 (2d Cir. 1983))). If

the phone or computer is accessible once the passcode or key has been entered, the

passcode or key is authentic.

V.     Conclusion

              The trial court departed from the requirements of the law by considering

only part of the standard used to determine whether a communication is testimonial and

by burdening the State with proving the existence of incriminating content on Stahl's

phone when that was not at issue. It further departed by requiring the State to establish

existence beyond the reasonable particularity standard. Unquestionably, the State

established, with reasonable particularity, its knowledge of the existence of the

passcode, Stahl's control or possession of the passcode, and the self-authenticating

nature of the passcode.15 See In re Boucher, 2009 WL 424718 at *3. This is a case of

surrender and not testimony.

              Petition granted; order quashed.



SALARIO, J., Concurs.
KELLY, J., Concurs in result only.




              15
                 Given the State's evidence and the fact that it met the standard
necessary to obtain a search warrant for Stahl's iPhone, we would be inclined to find
that the State had met the reasonable particularity standard for even the contents of
Stahl's phone. The State knew Stahl was the individual in the store surveillance video
holding an imaging device, which the victim identified as a phone; it knew that the
evidence would be a photo or video file; and it knew the evidence would be authentic
based upon the store surveillance video. However, nothing about our conclusion
prevents Stahl from filing a motion to suppress any evidence found on the phone based
on the validity of the warrant. See, e.g., Baust, 89 Va. Cir. 267 ("[T]he contents of the
phone, obtained pursuant to a validly executed warrant are only subject to objections
raised under the Fourth Amendment, not the Fifth Amendment." (emphasis omitted)).


                                           - 19 -
