Florida Judge: Give Up Your Smartphone Passcode or Go to Jail

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By Christopher Coble, Esq. on June 02, 2017 11:14 AM

A Florida man has been sentenced to 180 days in jail for failing to give police a working passcode to his iPhone. A judge had issued a warrant to search the phone as part of a child abuse investigation, and when the passcode provided by the man didn't work, the judge held him in contempt.

The case highlights privacy interests and search and seizure rules in the age of mobile device storage and access to digital files and data, and why defendants might be better off forgetting their passwords than refusing to give them over.

Better to Have a Passcode and Forgot...

Christopher Wheeler is adamant he complied with Circuit Judge Michael Rothschild's order. "I swear, under oath, I've given them the password," he told the judge this week. Still, because the code he gave police didn't unlock his iPhone, Rothschild found him in criminal contempt of the order and sentenced him to jail for 180 days or until he gives up a working passcode. Wheeler has been charged with child abuse and police believe evidence that he hit and scratched his daughter is on the phone.

Wheeler's case stands in stark contrast to that of another Florida man, who told a judge he couldn't remember the passcode to his own phone. Wesley Victor is accused of extorting a social-media celebrity by threatening to release stolen sex videos. In that case, Miami-Dade Circuit Judge Charles Johnson declined to hold Victor in contempt after he made a plausible argument that he could not recall his password when officers requested it more than 10 months after his arrest.

Victor's co-conspirator, on the other hand, was not so lucky. Reality TV star Hencha Voigt, who is also implicated in the extortion scheme, gave the court a passcode that didn't work, and is now facing her own contempt charge. While it does look like a contradictory precedent to set -- a defendant who tells police he can't recall the passcode is free while a defendant who gives the wrong passcode is in jail -- the judges' hands in these cases may be tied. After all, as Victor's attorney Zeljka Bozanic noted, how can you prove a person remembers something? "My client testified he did not remember," Bozanic told the Miami Herald. "It's been almost a year. Many people, including myself, can't remember passwords from a year ago."

Passcodes v. Fingerprints

The authority to compel criminal suspects to unlock their smartphones, at least in Florida, comes from a District Court of Appeals decision in Florida's Second Circuit last year that held a criminal defendant can be compelled to provide the passcode to a phone. That case has yet to be reviewed by the state supreme court, and would appear on its face to be at odds with a seminal U.S. Supreme Court decision, Doe v. United States, which held that a person can be ordered to hand over the key to a locked box, but cannot be compelled to recite the combination to a safe.

The trial judge in the Florida case was swayed by the argument that a smartphone's passcode is more akin to a combination, and therefore declined to hold the defendant in contempt for failing to turn it over. In fact, many courts have distinguished between passcodes and fingerprints by likening the former to a combination and the latter to a key, meaning that you could be forced to unlock a phone with your fingerprint but not need to provide a passcode.

But the Florida Court of Appeals reversed that decision, apparently even dismissing Supreme Court precedent on the issue. "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," Judge Anthony Black wrote for the majority. "More importantly, we question the continuing viability of any distinction as technology advances." While there's no guarantee higher courts would disagree with Black's disregard for a pre-smartphone Fifth Amendment case, with so much conflict among lower courts on the issue, the Supreme Court will likely need to step in at some point to clarify matters.

So for now, the law in the Sunshine State is that you can be forced to give law enforcement a working passcode for your smartphone if they have a warrant. If you can't forget it first, that is.

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