Nathan Potter, Associate Member, University of Cincinnati Law Review
In criminal cases, the Fifth Amendment is regaining lost territory for the individual citizen’s right to private thought. Recently, privacy is at the center of a public attention and a Florida Appeals Court has provided a welcome bit of respite with the confirmation that your phone may no longer be a liability to your privacy. On October 24,2018, the court granted a minor’s petition to prevent law enforcement officers from forcing the minor to provide the pass code to the minor’s phone and the minor’s Apple password (collectively the “pass codes”).The minor in G.A.Q.L. v. State got lucky. This situation would normally end without law enforcement needing the pass codes to search the data on the phone. However, a string of circumstances made it necessary for law enforcement to gain the minor’s pass codes.
First, law enforcement officials can typically obtain a warrant to search a phone for data, photographs, assigned numbers, content, applications, text messages and other information.The minor did not contest the warrant for the search of the phone’s data.The minor only contested the separate circuit court orders to compel the minor to give law enforcement officials the minor’s pass codes.
Second, law enforcement was unable to extract data from the phone because it needed an iOS update to work with the law enforcement agency’s tools.Apparently, the software update was so vital it made law enforcement’s search programs incompatible with the minor’s alleged device.
The Florida court implicitly relied on the foregone conclusion exception to uphold the request for the pass codes from the minor.The foregone conclusion exception allows the state to compel a defendant to produce self-incriminating evidence when the state already knows of the material sought and the defendant is adding little or no new information to the state’s knowledge.The court of appeals in G.A.Q.L. utilized a three-factor test to determine if pass codes must be produced under the foregone conclusion exception: (1) the file must exist in some specified location; (2) the file is possessed by the target of the subpoena; and (3) the file is authentic.To invoke the foregone conclusion exception, the state must show, with“reasonable particularity,” that the files exist on the drive which is protected by the pass code. The court of appeals in G.A.Q.L. criticized other courts and the state for misusing the foregone conclusion exception in recent history.
The state must prove that its targeted information exists behind the pass code; not that the pass code exists.In G.A.Q.L., the state did not claim it needed specific information from the phone, only that information existed behind a pass code and the state wished to obtain that information for prosecution. The state’s failure to identify file locations and file names meant that the state was not “reasonably particular” in its request. While there may have been corroborating electronic evidence from one of the victims of the suit, the trial court did not rely on this possibility when issuing its order to compel the pass codes.
Therefore, the court of appeals held that the Fifth Amendment prevents the state from compelling a defendant to disclose pass codes, and the state had failed to meet the criteria to invoke the foregone conclusion exception.Additionally, in a concurring opinion, Judge Kuntz argues that the foregone conclusion exception may never be brought to compel the disclosure of oral testimony and that disclosure of the pass code would be oral testimony.
The Fifth Amendment was created to allow a defendant to protect his own thoughts and knowledge. More often than not, courts are extending this protection to the devices which the modern population may struggle to live without. In the future, it is possible that the contents of a cell phone or other personal device may no longer be searchable via a warrant (in a criminal proceeding) without invoking an exception to the Fifth Amendment. The court of appeals in G.A.Q.L.has scored another resounding victory for privacy. But, this case was only relevant because law enforcement was not able to access the device due to the presence of the device’s pass code—and—because the device’s software was not up to date. Given these facts, maybe everyone should set up a pass code and stop updating their phones.
*Photo is labeled for non-commercial reuse in Google https://www.flickr.com/photos/ervins_strauhmanis/14365412089
 G.A.Q.L. v. State, 43 Fla. L. Weekly 2389 (Dist. Ct. App. 2018).
 Id. at *2.
 Id. at *3.
 Fisher v. United States, 425 U.S. 391, 411 (1976).
 G.A.Q.L., 43 Fla. L. Weekly at *11.
 See Id.
 Id. at *12.
 Id. at *14.
 Id. at *16.
 Id. at *18.