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.
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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 
- 3 -

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 

 

1The 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." 
- 4 -

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. 

2Nothing 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. 

3Because 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).
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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 
- 6 -

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
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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

 

 

4The 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. 

5The 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).
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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 
- 9 -

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 selfincrimination "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 
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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 

 

6Although 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 selfincrimination, 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.
- 11 -

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 

 

7We 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.").
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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 selfincrimination). 

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 

 

8We 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.

9Neither 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 
- 13 -

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.
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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." 

 

10Although 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.

11We 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.
- 15 -

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 
- 16 -

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 

 

12These 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.' ").
- 17 -

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 

 

13As 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).
- 18 -

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 

 

14The 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. 
- 19 -

(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.

 

15Given 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)).