FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D19-1967
_____________________________
JACOB VARN,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
September 3, 2020
KELSEY, J.
This is a cell-phone-passcode case. Petitioner seeks certiorari
review of a non-final order compelling him to give the State his
passcode. A criminal investigation involving Petitioner is pending,
but Petitioner has not been charged with or arrested for a crime,
so far as the limited record before us indicates.
One of the elements of certiorari is irreparable harm, and it is
jurisdictional. If Petitioner fails to establish irreparable harm, we
must dismiss the petition. E.g., Amalgamated Transit Union,
Local 1579 v. City of Gainesville,
264 So. 3d 375, 378 (Fla. 1st DCA
2019). We conclude Petitioner has not demonstrated irreparable
harm, and therefore we dismiss the Petition. However, because we
must in part analyze the merits of the passcode issue to resolve the
jurisdictional question, we certify to the Florida Supreme Court
essentially the same questions of great public importance we
certified in Pollard v. State,
287 So. 3d 649, 663 (Fla. 1st DCA
2019) (On Motion for Rehearing and Certification): what legal
standards apply to compulsory disclosure of a cell phone passcode,
and whether or when does the foregone conclusion exception
apply?
The supreme court initially accepted Pollard for review, and
then dismissed it on the State’s motion for voluntary dismissal. See
Pollard, No. SC20-110,
2020 WL 1491793, at *1 (Fla. Mar. 25,
2020) (granting State’s motion filed March 19, 2020). The core
questions in Pollard and in this case merit the higher court’s
review, particularly because there is presently a conflict between
districts on the key issues presented in Pollard and here. See State
v. Stahl,
206 So. 3d 124, 132–34 (Fla. 2d DCA 2016) (holding
disclosure of cell phone passcode is not a testimonial act
implicating Fifth Amendment protections); G.A.Q.L. v. State,
257
So. 3d 1058, 1061–63 (Fla. 4th DCA 2018) (holding to the contrary).
We also certify conflict between this decision and Stahl. These
issues by their nature arise in circumstances such as those
presented in Pollard and here where the parties may resolve the
issues short of trial, thus evading supreme court review of the
significant constitutional issues presented.
I. Certiorari Requirements.
The non-final order under review, granting the State’s motion
to compel Petitioner to disclose his cell phone passcode, is not
among the limited appealable non-final orders in Florida Rule of
Appellate Procedure 9.130. In “very limited circumstances,” we
may review non-appealable non-final orders on petition for a writ
of certiorari. Bd. of Trs. of Internal Improvement Trust Fund v. Am.
Educ. Enters., LLC,
99 So. 3d 450, 454 (Fla. 2012). Our certiorari
jurisdiction is limited to cases in which the petitioner
demonstrates the following factors:
(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 postjudgment
appeal.
2
Id. (quoting Reeves v. Fleetwood Homes of Fla., Inc.,
889 So. 2d 812,
822 (Fla. 2004)). The second and third factors, together described
as a showing of “irreparable harm,” are jurisdictional. E.g., Jaye v.
Royal Saxon, Inc.,
720 So. 2d 214, 215 (Fla. 1998); Amalgamated
Transit Union, 264 So. 3d at 378. “Irreparable harm” is the
equivalent of no remedy on direct appeal. See Jaye,
720 So. 2d at
215; see also Eutsay v. State,
103 So. 3d 181, 182–83 (Fla. 1st DCA
2012) (holding irreparable harm does not come from delay in
proceedings, having to stand trial, or the potential for a retrial
following appeal). If the Petition fails to demonstrate irreparable
harm, we must dismiss it. Amalgamated Transit, 264 So. 3d at
378.
II. Irreparable Harm.
Petitioner asserts that irreparable harm exists because
disclosing his cell phone passcode “could form ‘a link in the chain
of evidence which might lead to criminal prosecution,’” quoting
from Appel v. Bard,
154 So. 3d 1227, 1229 (Fla. 4th DCA 2015)
(holding that Fifth Amendment protected debtor in civil litigation
from discovery asking whether he had filed tax returns). Petitioner
also argues that he faces the threat of direct civil contempt for
failing to disclose the passcode.
In response, the State argues that irreparable harm does not
exist here, because Petitioner can go to trial and appeal any
adverse rulings, or plead and reserve the right to appeal the
compelled disclosure of his passcode. See State v. Pettis,
520 So. 2d
250, 253 n.2 (Fla. 1988) (noting that, unlike the State, a criminal
defendant can appeal from an adverse judgment); Fla. R. App. P.
9.140(b)(1)(A) (appeal), 9.140(b)(2)(A)(i) (plead and reserve). 1
To the extent Petitioner relies on a constitutional “right” not
to be charged or arrested, independent of Fifth Amendment
1 Because the record clearly supports application of the
foregone conclusion exception, which defeats the jurisdictional
requirement of irreparable harm, we do not address whether the
availability of appeal would also defeat the required showing of
irreparable harm. Nor is our disposition driven by the pre-charge,
pre-arrest posture.
3
protections, we reject the argument. The law, particularly the
Fifth Amendment here, identifies and defines Petitioner’s rights;
and the law likewise protects those rights throughout the criminal
process. He can file protective motions as appropriate in the trial
court, and he can appeal any judgment, even after a plea, if he
preserves that right. The prospect of going to trial or pleading, and
being adjudicated guilty, is not irreparable harm. See Jaye,
720 So.
2d at 215; Eutsay,
103 So. 3d at 182.
This Court held in Pollard that compelled provision of a cell
phone passcode is a testimonial act that the Fifth Amendment
protects, aligning this District with the Fourth District in G.A.Q.L.
and in conflict with the Second District in Stahl. Pollard, 287 So.
3d at 656–57. Under Pollard, the law of this District, the Fifth
Amendment applies, and we must next determine whether the
foregone conclusion exception to the Fifth Amendment also applies
on the facts presented. See Fisher v. United States,
425 U.S. 391,
411 (1976) (holding the existence and location of papers requested
in discovery were a foregone conclusion where the taxpayer’s
compelled production of them “adds little or nothing to the sum
total of the Government’s information,” and therefore “no
constitutional rights are touched” and the Fifth Amendment does
not bar compelled disclosure); Pollard, 287 So. 3d at 657. While we
have only a very limited record, we find that the foregone
conclusion exception applies, and therefore Petitioner has not
shown irreparable harm.
III. Facts.
Significantly, the record facts establish that the targeted
contents on Petitioner’s cell phone were identified already in great
detail and traced to him before the State moved to compel
disclosure of his passcode. 2 The record also indicates that after
2 We note Petitioner’s argument that the anticipated search is
overbroad because the prosecutor said at the hearing on the motion
to compel that the State wanted to “search the phone in its
entirety” and “be able to access everything and be able to see
everything.” The context of those comments gives no indication
that the State intends to seek or use any information beyond the
scope of the warrant; and in any event, Petitioner did not seek or
4
being informed of his rights and with his parents and an attorney
present, Petitioner admitted to accessing his Instagram account
from his cell phone. Investigators already had linked the account
to transmission of child pornography. The investigation started in
California, based on evidence of Instagram users sharing child
pornography. As to one suspect, a California detective obtained a
search warrant and reviewed messages between “r7alngp7gcis”
(the suspect’s account) and “Sexynelly16” (Petitioner’s account). 3
Comcast records provided in response to a subpoena identified
Petitioner’s parents’ Tallahassee address, where Petitioner also
lived, as associated with transmissions to and from the
Sexynelly16 account. Investigators were able to view messages,
images, and the first screens of videos transmitted between these
two accounts, as well as dates, time stamps, and electronic
signatures. Because the pictures and videos involved child
pornography and were traced to the Tallahassee address, the
California detective provided this information to law enforcement
in Tallahassee.
A Tallahassee Police Department investigator filed an
extremely detailed affidavit seeking a search warrant for
Petitioner’s parents’ address. The affidavit itself was fourteen
pages long, and the probable cause section contained eight pages
of highly detailed information about the messages exchanged,
including the verbatim texts of the messages, and the dates and
times they were sent and received. The affidavit also included
detailed and graphic descriptions of seven still images and two
video screenshots depicting child pornography sent from the
California suspect to Petitioner’s account, and references to
obtain a ruling from the trial court on any Fourth Amendment
issues such as scope of search or use of information located on the
phone. Given our dismissal for failure to show the jurisdictional
prerequisite of irreparable harm, we do not address the scope of
the search.
3 This record does not reveal the significance of the “16” in
Petitioner’s account name, but Petitioner was a few months past
17 years old when the warrants issued and motions were filed.
5
multiple other child-pornography videos being sent and received
on another application (Kik). 4 A judge issued the warrant.
The investigator’s sworn statement and inventory following
service of this original warrant stated that the warrant was served
with Petitioner, both of his parents, and a lawyer present.
Petitioner’s cell phone was seized along with other items when the
first warrant was served. That same day, the investigator sought
a second warrant specifically for Petitioner’s phone. The sworn
affidavit for the second warrant stated that Petitioner had arrived
home while the first warrant was being executed, and Petitioner
was advised of his Miranda rights. 5 According to this affidavit,
Petitioner then admitted to using his cell phone to access his
“Sexynelly16” account to converse with the “r7alngp7gcis” account
user. He also admitted that the phone he used for those
communications was in his vehicle parked by the house, before
police seized the phone. The investigator’s affidavit for the second
warrant also stated that Petitioner’s lawyer (not his present
counsel) agreed to provide the passcode if the State would provide
a new search warrant for the phone along with a motion to compel.
Ultimately Petitioner declined to provide the passcode.
When the trial court granted the State’s motion to compel, we
had not yet issued Pollard. The trial court noted the conflict
between the Second and Fourth Districts in Stahl and G.A.Q.L.,
and adopted the Stahl reasoning that the act of providing a cell
phone passcode is not testimonial. See Stahl, 206 So. 3d at 135. We
stayed the lower court’s order pending resolution of this
proceeding.
IV. Foregone Conclusion Exception.
On this limited factual record, we must determine if Petitioner
has shown irreparable harm; i.e., whether Petitioner’s Fifth
4 The State was not required to provide Petitioner an
unredacted version of the affidavit, but ultimately did provide it
after Petitioner filed his reply in this proceeding. Petitioner filed
an update indicating that his arguments were unchanged.
5 Miranda v. Arizona,
384 U.S. 436 (1966).
6
Amendment rights survive a foregone conclusion analysis. If the
government already knows the existence and location of the
information sought, and that the target has access to it, the act of
production is not sufficiently testimonial to invoke the Fifth
Amendment. Fisher, 425 U.S at 411; see also In re Grand Jury
Subpoena Duces Tecum Dated Mar. 25, 2011,
670 F.3d 1335, 1344
(11th Cir. 2012) (holding that if the “location, existence, and
authenticity” of the evidence sought is already known “with
reasonable particularity,” Fifth Amendment protection is no
longer available). This inquiry is fact-dependent. Fisher, 425 U.S
at 410. Evidence in an officer’s affidavit may inform this Court’s
foregone conclusion analysis. Pollard, 287 So. 3d at 657.
In Pollard, we held that the correct focus of the foregone
conclusion exception analysis when the State is seeking the
information within a cell phone—rather than the passcode for its
own sake—is whether the State has identified with reasonable
particularity the evidence it seeks within the passcode-protected
cell phone. Id. at 656–57. We acknowledged that the key to the
foregone conclusion exception is whether the targeted contents are
described with “reasonable particularity”:
For example, if the central feature in a criminal case
is what files are on a cellphone, and the state can
establish that a defendant’s cellphone contains files that
are described with “reasonable particularity,” the
compelled production of the password to access those files
(but only those files) does no damage to the defendant’s
constitutional right against self-incrimination where
sufficient evidence establishes that it is his phone on
which the files reside.
Id. at 654.
The record in this case is a stark contrast to that in Pollard,
in which the information sought was described only generally,
broadly, and without specifics. Id. at 651–52. Here, the State
already knew exactly what child pornography Petitioner received
and viewed through the “Sexynelly16” account. Further, Petitioner
admitted he had control over the phone and used it to access that
account. While we do not hold that this level of specificity is always
required to trigger the foregone conclusion exception—it is not—
7
we find that on this record, the State’s discovery of the pertinent
information on Petitioner’s cell phone is a foregone conclusion,
falling within the exception to the Fifth Amendment.
That being the case, Petitioner has no legal right to prevent
the State from obtaining his cell phone passcode. He cannot
demonstrate irreparable harm as required to obtain certiorari
relief, and we dismiss the Petition. See Amalgamated Transit
Union, 264 So. 3d at 378.
V. Certified Conflict.
We certify conflict between this decision and State v. Stahl,
206 So. 3d 124 (Fla. 2d DCA 2016).
VI. Certified Questions.
We certify to the Florida Supreme Court the following
questions of great public importance, and urge the Court to review
and resolve them:
IS IT A CONSTITUTIONALLY PROTECTED TESTIMONIAL ACT
TO DISCLOSE ONE’S CELL PHONE PASSCODE UNDER STATE
COMPULSION?
WHEN DOES THE FOREGONE CONCLUSION EXCEPTION
APPLY TO SUCH COMPELLED DISCLOSURE?
DISMISSED, CONFLICT CERTIFIED, and QUESTIONS CERTIFIED.
LEWIS, J., concurs; WINOKUR, J., concurs specially with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
8
WINOKUR, J., concurring specially.
As the majority opinion notes, we ruled in Pollard v. State,
287 So. 3d 649 (Fla. 1st DCA 2019), that in determining when the
foregone conclusion exception applies to compulsion of a cellphone
passcode, where police have obtained a search warrant for the
cellphone, we look to “whether the State has identified with
reasonable particularity the evidence it seeks within the passcode-
protected cell phone.” Maj. op. at 7 (citing Pollard, 287 So. 3d at
656–57). Using this analysis, I agree that the State could identify
with reasonable particularity the contents of Petitioner’s cellphone
sufficiently to invoke the foregone conclusion exception to compel
the passcode, in a manner that it could not in Pollard.
I write separately because I continue to adhere to my belief,
expressed in dissent in Pollard, that the focus on the evidence
contained within the phone is misplaced. Instead, I believe the
focus of the foregone conclusion exception must be on the
information that the government seeks to compel (i.e., the
passcode), not the evidence that the compelled testimony
ultimately leads to. See Pollard, 287 So. 3d at 657–663, 664–67
(Winokur, J., dissenting, and concurring in part and dissenting in
part on motion for rehearing and certification). In other words,
where the State has obtained a search warrant for material
contained on a cellphone and seeks to compel the phone’s passcode,
it is irrelevant for Fifth Amendment purposes whether the State
can identify the material with particularity. Instead, for the
foregone conclusion exception to apply, the State must prove “that
it knows with reasonable particularity that the passcode exists, is
within the accused’s possession or control, and is authentic.” Id. at
665–66 (quoting State v. Stahl,
206 So. 3d 124, 136 (Fla. 2d DCA
2016)). Because the State established these facts here, Petitioner
is not entitled to relief.
Because Pollard is the law in this district, we are obligated to
apply it here. I agree with the majority that Pollard does not
provide relief. I also concur in the decision to certify conflict with
Stahl and to certify questions of great public importance.
_____________________________
9
Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee; and Gilbert A. Schaffnit of Law Offices of Gilbert A.
Schaffnit, Gainesville, for Petitioner.
Ashley Moody, Attorney General; and Benjamin L. Hoffman,
Assistant Attorney General, Tallahassee, for Respondent.
10
