FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D21-664
_____________________________
DERYL NATHAN FOSTER,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
September 15, 2021
B.L. THOMAS, J.
Petitioner was charged with five drug-related felonies and one
count of resisting an officer without violence. A search warrant was
issued for Petitioner’s cell phone. The State sought to compel
disclosure of Petitioner’s passcode to execute the warrant.
Petitioner argued in the trial court that he could not be compelled
to provide his passcode because that would violate the Fifth
Amendment of the United States’ Constitution.
The trial court granted the State’s motion in part. Petitioner
now seeks extraordinary relief in this Court by writ of certiorari to
quash the trial court’s order. We dismiss the petition for lack of
jurisdiction because Petitioner has an adequate remedy on plenary
appeal.
We note, first, the limits of our jurisdiction. Florida’s
Constitution provides that district courts have jurisdiction to hear
appeals “from final judgments or orders of trial courts, including
those entered on review of administrative action, not directly
appealable to the supreme court or a circuit court.” Art. V, §4(b)(1),
Fla. Const. (emphasis added). As for interlocutory, or non-final,
orders, appellate jurisdiction lies only “to the extent provided by
rules adopted by the supreme court.” Id.
The trial court’s order compelling Petitioner to provide the
passcode is not a final order, nor is it a non-final order subject to
interlocutory review through “rules adopted by the supreme court.”
Id. Lacking a basis for appellate jurisdiction in this Court,
Petitioner seeks to invoke our original jurisdiction to review the
underlying order by writ of certiorari.
The supreme court has repeatedly cautioned that certiorari
review of interlocutory orders “is an extraordinary remedy that
should be granted only in very limited circumstances.” Paton v.
GEICO Gen. Ins. Co.,
190 So. 3d 1047, 1052 (Fla. 2016). Certiorari
jurisdiction thus requires a petitioner to demonstrate the following
three elements: (1) a departure from the essential requirements of
the law, (2) resulting in material injury for the remainder of the
case, (3) that cannot be corrected on post judgment appeal. Bd. of
Trs. of Internal Improvement Tr. Fund. v. Am. Educ. Enters., LLC,
99 So. 3d 450, 454 (Fla. 2012) (emphasis added). The second and
third elements are “jurisdictional and must be analyzed before the
court may even consider the first element.” Williams v. Oken,
62 So.
3d 1129, 1132 (Fla. 2011) (emphasis added) (holding certiorari
review is not available where defendant challenged pre-suit
adequacy of medical affidavits in a medical-malpractice action).
Where a person has an adequate remedy on appeal, the district
courts lack jurisdiction to consider piecemeal interlocutory
appeals. See, e.g., Paton, 190 So. 3d at 1052.
These jurisdictional prongs exist for good reason. Certiorari
review “should not be used to circumvent the interlocutory appeal
rule which authorizes appeal from only a few types of non-final
orders.” Jaye v. Royal Saxon, Inc.,
720 So. 2d 214, 215 (Fla. 1998)
(quoting Martin-Johnson, Inc. v. Savage,
509 So. 2d 1097, 1098
(Fla. 1987)). That is because “piecemeal review of nonfinal trial
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court orders will impede the orderly administration of justice and
serve only to delay and harass.”
Id. So, “before certiorari can be
used to review non-final orders, the appellate court must focus on
the threshold jurisdictional question: whether there is a material
injury that cannot be corrected on appeal, otherwise termed as
irreparable harm.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n,
Inc.,
104 So. 3d 344, 351 (Fla. 2012).
This principle is particularly true in criminal cases, as
piecemeal litigation hinders the timely resolution of cases and
delays finality. See Art. I, §21, Fla. Const. (“[J]ustice shall be
administered without . . . delay.”).
Because Petitioner’s claim for certiorari relief fails to
demonstrate irreparable harm, this Court lacks jurisdiction to
grant him the relief he seeks. The Fifth Amendment to the United
States’ Constitution provides: “No person . . . shall be compelled in
any criminal case to be a witness against himself . . ..” Amend. V,
U.S. Const. (emphasis added). This privilege against self-
incrimination “is a fundamental trial right of criminal
defendants.” See U.S. v. Verdugo-Urquidez,
494 U.S. 259, 264
(1990) (emphasis added). “Although conduct by law enforcement
officials prior to trial may ultimately impair that right, a
constitutional violation occurs only at trial.” Id.; see also Chavez v.
Martinez,
538 U.S. 760, 767 (2003) (“Statements compelled by
police interrogations of course may not be used against a defendant
at trial . . . but it is not until their use in a criminal case that a
violation of the Self-Incrimination Clause occurs.”).
Assuming any evidence resulting from the search of the cell
phone is admitted at trial over Petitioner’s preserved Fifth
Amendment objection, or any other preserved objection, and
further assuming Petitioner is convicted based on such evidence,
Petitioner can raise those arguments on direct appeal. See, e.g.,
Almeida v. State,
737 So. 2d 520, 525–26 (Fla. 1999) (reversing a
first-degree murder conviction and death sentence for admitting
an unlawfully obtained confession); Deviney v. State,
112 So. 3d 57,
79 (Fla. 2013) (reversing a conviction and sentence and remanding
for new trial based on an erroneous admission of a confession). In
addition, Petitioner can file a motion to suppress any inculpatory
information obtained from the cell phone, after the State’s
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execution of the search warrant, and can assert that his right to
remain silent at trial was violated by the use of any such
information. See, e.g., Cuervo v. State,
967 So. 2d 155, 167 (Fla.
2007) (“[O]fficers in this case violated Cuervo’s right to remain
silent, requiring suppression of the statements he then made in
response to custodial questioning.”).
There is nothing prohibiting Petitioner from using his
adequate remedy on direct appeal to argue that evidence obtained
by use of the passcode could not be legally admitted against him.
On plenary appeal, this Court will have jurisdiction to consider
these arguments and provide relief, if warranted. See, e.g., Carter
v. State,
697 So. 2d 529, 532, 534 (Fla. 1st DCA 1997) (upholding a
trial court’s denial of a motion to suppress a confession but holding
that the exclusion of expert testimony regarding whether
defendant had knowingly, intelligently, and voluntarily waived his
right to remain silent constituted reversible error). See also State
v. Lemmie,
462 P.3d 161, 165, 169 (Kan. 2020) (holding that an
officer’s testimony confirming that the defendant provided her
with the passcode to his cell phone “in no way contributed to the
jury’s [guilty] verdict” and that the admission of that testimony
was harmless beyond a reasonable doubt); State v. Johnson,
576
S.W.3d 205, 226–27 (Mo. App. 2019) (addressing appellant’s
arguments regarding asserted Fifth Amendment violations
resulting from execution of search warrant and appellant’s entry
of a phone passcode).
Thus, Petitioner cannot show that we have jurisdiction to
consider granting an extraordinary writ of certiorari. Bd. of Trs.,
99 So. 3d at 454 (holding certiorari jurisdiction requires petitioner
to show that asserted error will result in irreparable harm that
cannot be remedied on appeal); Magbanua v. State,
281 So. 3d 523,
526 (Fla. 1st DCA 2019) (dismissing certiorari petition for lack of
jurisdiction because petitioner failed to demonstrate any injury
that could not be corrected on direct appeal); Segura v. State,
272
So. 3d 805, 806 (Fla. 1st DCA 2019) (holding exclusion of a third-
party confession did not constitute irreparable harm because
petitioner had an adequate remedy on appeal).
Petitioner relies upon two recent cell phone password cases
from this Court to argue jurisdiction is proper. In Pollard v. State,
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287 So. 3d 649 (Fla. 1st DCA 2019), review dismissed, No. SC20-
110,
2020 WL 1491793 (Fla. Mar. 25, 2020), this court issued a writ
of certiorari but did not analyze the threshold question of
jurisdiction or a party’s available remedy on direct appeal. And in
Varn, this Court dismissed a petition for certiorari review and
acknowledged the “irreparable harm” requirement but blended its
analysis of the merits with its analysis of jurisdiction. Varn v.
State, 45 Fla. L. Weekly D2079 (Fla. 1st DCA Sept. 3, 2020). Other
courts have addressed the merits of the Fifth Amendment issue
but declined to explain their jurisdiction. See Garcia v. State,
302
So. 3d 1051, 1054 (Fla. 5th DCA 2020) (granting certiorari review
and quashing trial court order compelling passcode without
discussion of threshold jurisdictional requirement that petitioner
must lack a remedy on appeal), review granted, No. SC20-1419,
2020 WL 7230441 (Fla. Dec. 8, 2020); G.A.Q.L. v. State,
257 So. 3d
1058, 1060 (Fla. 4th DCA 2018) (granting certiorari review with no
analysis of the jurisdictional requirement that petitioner seeking
extraordinary relief to quash order compelling passcode must lack
an adequate remedy on appeal).
Thus, we write to clarify that binding precedent from the
supreme court and this Court requires a petitioner to show that he
or she has no adequate legal remedy on appeal before this Court
can consider his or her petition for writ of certiorari.
In Jaye, the Florida Supreme Court held that the district
court lacked jurisdiction to consider the merits of a certiorari
petition even where the asserted error involved the denial of a jury
trial.
720 So. 2d 214. The supreme court found that the petitioner
could not demonstrate irreparable harm that permitted certiorari
review, stating:
Jaye argues that, as a result of the alleged error, she
will suffer the following irreparable harm that a direct
appeal cannot remedy: (1) the substantial injury caused
when aggrieved parties must “show their hand” in a
preliminary nonjury trial; (2) a situation in which the age
of the parties and witnesses affects whether a second trial
is feasible; and (3) the time, effort, and expense of trying
a case twice. We reject these arguments because we do
not find these contentions to be of the nature which
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demonstrates irreparable harm. See Globe Newspaper
Co., 658 So. 2d at 520; Martin-Johnson v. Savage,
509 So.
2d at 1100; Parkway, 658 So. 2d at 650; Whiteside v.
Johnson,
351 So. 2d 759, 760 (Fla. 2d DCA 1977);
Haddad, supra, at 223. Moreover, the nonjury trial may
result in a decision by the trial judge that will cause the
petitioner to conclude that there is no reason to seek
appellate review. We distinguish our decision in Wincast
Associates, Inc. v. Hickey,
342 So. 2d 77 (Fla. 1977),
because in that case we did not deal with the issue of
whether certiorari review was appropriate. We now make
clear that Hickey should not be read as approving
certiorari review of the denial of a demand for a jury trial.
Id. at 215–16.
The rule of law is clear: district courts must first analyze the
“threshold jurisdictional” requirement of irreparable harm, and if
it is not met, then the inquiry must end there. See Paton, 190 So.
3d at 1052 (“[T]he district court improperly employed its certiorari
jurisdiction when it granted the petition on an issue that did not
depart from the essential requirements of the law and would not
cause irreparable harm . . ..”); see also DeSantis, 313 So. 3d at 153
(dismissing petition for certiorari review of trial court’s orders
denying motions to dismiss, and stating “we must satisfy ourselves
that the petitions plead a basis for jurisdiction—that the
petitioners stand to suffer a significant harm that cannot
adequately be corrected in a later, plenary direct appeal.”); see also
Craig-Myers v. Otis Elevator Co.,
313 So. 3d 150 (Fla. 1st DCA
2020) (dismissing petition for writ of certiorari for lack of
jurisdiction because the issue could be remedied on direct appeal);
see also ANS, Inc. v. Off. of the Att’y Gen., No. 1D21-1600,
2021 WL
2699077, at *1 (Fla. 1st DCA July 1, 2021) (holding that the court
lacked jurisdiction to grant certiorari relief when the petitioner
failed to demonstrate irreparable harm by alleging that without
relief, the continuation of unnecessary litigation would occur).
Therefore, because Petitioner has an adequate remedy on
appeal, we lack jurisdiction to consider his petition for writ of
certiorari. See Segura, 272 So. 3d at 805.
DISMISSED.
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NORDBY, J., concurs; BILBREY, J., concurring in part and in result
with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
BILBREY, J., concurring in part and in result.
Since the jurisdictional prerequisite of irreparable harm
which cannot be remedied on appeal is not shown in the petition,
we lack certiorari jurisdiction. See Williams v. Oken,
62 So. 3d
1129, 1132 (Fla. 2011) (stating that to be entitled to a writ of
certiorari, the “petitioner must establish” three elements including
showing material injury which cannot be remedied on post
judgment appeal). We are therefore correct to dismiss the petition.
The petition here focuses only on the alleged departure from
the essential requirements of law. But even if trial court’s order is
a departure, meeting only that prong of the three-part test is
insufficient to invoke our limited certiorari jurisdiction. See
Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc.,
104 So. 3d 344,
352 (Fla. 2012). Furthermore, if the search of Petitioner’s cell
phone yields inculpatory evidence, “[t]he prospect of going to trial
or pleading, and being adjudicated guilty, is not irreparable harm.”
Varn v. State, 45 Fla. L. Weekly D2079, D2080,
2020 WL 5244807,
*2 (Fla. 1st DCA Sept. 3, 2020).
The majority asserts in dicta that the privilege against self-
incrimination is only available at trial in a criminal case, but I
respectfully disagree. No matter if certain federal cases
interpreting the Fifth Amendment to the United States
Constitution can be read so narrowly, the Florida Supreme Court
has interpreted the Fifth Amendment and article I, section 9 of the
Florida Constitution to apply in all proceedings which are penal in
nature. State ex rel. Vining v. Florida Real Estate Comm’n,
281
So. 2d 487, 491 (Fla. 1973). In Vinings, the Court held that the
privilege against self-incrimination applies not only in a
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“traditional criminal case, but also to proceedings ‘penal’ in nature
in that they tend to degrade the individual’s professional standing,
professional reputation or livelihood.”
Id.
In Omulepu v. Department of Health, Board of Medicine, we
noted the continued validity of the holding in Vinings and stated
that the Fifth Amendment “privilege may be asserted in
proceedings to protect ‘against disclosures which the witness
reasonably believes could be used in a criminal prosecution or
could lead to other evidence that might be so used.’”
249 So. 3d
1278, 1280 (Fla. 1st DCA 2018) (quoting Kastigar v. United States,
406 U.S. 441, 445 (1972)). Had this issue been dispositive, we
would be compelled to follow the holdings from Vinings and
Omulepu. See Hoffman v. Jones,
280 So. 2d 431, 434 (Fla. 1973)
(stating that a district court of appeal is “bound to follow the case
law set forth by” the Florida Supreme Court); Sims v. State,
260
So. 3d 509, 514 (Fla. 1st DCA 2018) (“Each panel decision [by a
district court] is binding on future panels, absent an intervening
decision of a higher court or this court sitting en banc.”).
But we do not have to determine the reach of the privilege
against self-incrimination to find that irreparable harm which
cannot be remedied on appeal is lacking here. As the majority
correctly states, Petitioner has an adequate remedy at law in a
direct appeal if inculpatory information is improperly obtained.
Finally, I note that in an appropriate case and with sufficient
allegations, irreparable harm could result from the forced
disclosure of a cellphone passcode. Forced disclosure “of certain
kinds of information ‘may reasonably cause material injury of an
irreparable nature.’” Allstate Ins. Co. v. Langston,
655 So. 2d 91,
94 (Fla. 1995) (quoting Martin-Johnson, Inc. v. Savage,
509 So. 2d
1097, 1100 (Fla. 1987)). The case law is replete with certain “cat
out of the bag” compelled disclosures such as “material protected
by privilege, trade secrets, work product,” and the like which are
found sufficient to reach the irreparable harm threshold. Id.; see
also Saints 120, LLC v. Moore,
292 So. 3d 1209, 1212 (Fla. 1st DCA
2020) (holding that forced disclosure which “could work to
unlawfully infringe on the privacy rights of” a nonparty meets the
irreparable harm threshold). Petitioner makes no such showing
8
here however, and as such we are correct to dismiss the petition
due to our lack of jurisdiction.
_____________________________
Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville,
for Petitioner.
Ashley Moody, Attorney General, and Benjamin Louis Hoffman,
Assistant Attorney General, Tallahassee; and Melissa Nelson,
State Attorney, Jacksonville, for Respondent.
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