Let’s say that law enforcement seizes your cell phone, believing that it contains evidence of a crime. Let’s further say that they demand that you give them the passcode so that they can get into your phone and retrieve its contents. You tell the officers, “No thank you. I respectfully decline your invitation. My top-notched attorney, Mark Eiglarsh, has warned me not to consent to this type of governmental action.” They then inform the prosecutor of your refusal. The prosecutor then petitions the court to force you to turn over your passcode, arguing that they believe it contains incriminating information. How should the judge rule?
The hypothetic described above is similar to a scenario that is currently playing out in Miami criminal court. Prosecutors have asked Circuit Court Judge Charles Johnson (who is a phenomenal judge…and also a dear friend) to force Hencha Voigt and a co-defendant to provide her iPhone password to prosecutors. Voigt is a reality TV show celebrity who is accused of extorting a South Beach socialite concerning sexual videos. This request forces Judge Johnson to balance the defendants’ right to remain silent vs. police’s need to gather evidence.
Voigt’s lawyer argues that law enforcement is on a “fishing expedition.” He also maintains that they are essentially compelling his client to reveal her thought process. He points out that this situation is very different than demanding that she provide a blood sample or fingerprint evidence.
This issue has come up in both state and federal courts around the country. The decisions are different from jurisdiction to jurisdiction.
It’s worth discussing the situation just last year involving Apple and their resistance of the federal government’s attempt to force the company to assist them in a criminal investigation. Law enforcement wanted the company to help unlock an iPhone, which was owned by a guy who was accused of murdering 14 people in San Bernardino, California. After Apple passionately insisted that they couldn’t get into the encrypted phone, the government dropped its battle in court. Eventually, they were able to secure a third party to help them gain access to the phone.
Prosecutors in the Voigt case are relying heavily on a case out of Sarasota’s court of appeals. In that case, police were given permission to force an accused voyeur, who enjoyed secretly taking photos up women’s skirts in the mall, to give them his iPhone passcode.
For over two decades, I’ve argued against the government ever attempting to compel a suspect to provide to them their thoughts. Absent a Miranda Rights waiver, evidencing the accused’s desire to relinquish those thoughts freely and voluntarily, then I believe that this type of government action is unconstitutional. Ultimately, I believe the judge will rule in favor of Voigt and the co-defendant, finding that what the government wants to do is something that will force the defendants to become a witness against themselves, in violation of their 5th Amendment rights.