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Florida Suspect Ordered to Tell Police His iPhone Passcode in Voyeurism Case

By George Khoury, Esq. on December 14, 2016 | Last updated on March 21, 2019

In a controversial case out of Florida, an appellate court judge ordered a criminal defendant to tell police his iPhone passcode. This ruling is significant as it has been routinely held that a court order could not compel a defendant to give up his passcode (although a court could order a person to touch their fingerprint to a fingerprint sensor). Fortunately, this ruling may only affect Floridians.

The appeals judge is being criticized for missing the mark in this ruling, particularly when it comes to analogizing cases. The main issue that legal scholars take with this ruling is that it diminishes the Fifth Amendment and the protection against self-incrimination.

Key to the Strongbox or Combination Safe

The appeals court justice cited the Seminole 1988 US Supreme Court Case Doe vs. US, wherein it was explained that a defendant may have to give up possession of a key to a strongbox, but cannot be compelled to provide the combination to a safe. This is perhaps one of the most important distinctions made in the Fifth Amendment jurisprudence.

In this case, at first blush, it may seem that an iPhone or device passcode is more akin to the combination of a safe. However, unlike a traditional combination-locked box, most electronic devices utilize encryption so that without the passcode (a.k.a. the encryption key), the data is unusable. Regardless of the combination or key distinction, one of the most significant facts is that a defendant is being compelled to speak, which could very well be a violation of the Fifth Amendment right to be free from self-incrimination. One source, quoting the court, explained:

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.

This Case May Hinge on the Phone Evidence

Much of the evidence points to culpability in this case of voyeurism: the victim saw defendant's phone flash from below her skirt, the defendant was holding phone when it flashed, store surveillance footage shows that much, and the defendant ran off afterwards. However, the defendant will likely face much stiffer penalties if it can be certainly determined that a photo was taken.

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