FL Appeals Court: Defendants Can Be Forced To Give Up iPhone Password

In a shocking defeat for privacy advocates, the Florida Second District Court of Appeals has ruled that Criminal Defendants may be forced to give up their iPhone password to law enforcement. Tossing aside concerns about the right to remain silent, the Court in State v. Stahl, ruled that the Fifth Amendment did not apply in this situation.

Mr. Stahl was charged with video voyeurism, a third degree felony. He is accused of crouching down with a cell phone in his hand and extending the phone under a woman’s skirt with the screen illuminated. Mr. Stahl was arrested but there was no phone in his possession. Mr. Stahl gave police permission to search his house and they found an iPhone 5. After Mr. Stahl withdrew his consent to search any further, police obtained a search warrant to search the iPhone. However, there was only one problem for police. The phone had a passcode and they did not have the technology or personnel to crack the code themselves.

The State Attorney filed a motion to compel from the Defense the passcode. The defense argued the Fifth Amendment protection against self incrimination applied, and that they did not have to disclose the passcode. The appeals court ruled with the State. The Court shook off an often repeated quote from Justice Stevens in Doe v. U.S. (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’), questioning this distinction as “technology advances.” Ignoring the obvious privacy implications, the court held that Mr. Stahl would not be acknowledging that the phone contains evidence of video voyeurism by providing the passcode. The local Public Defender’s office did not appeal the decision and it is now final.

Fl Rep Wants Harsher Punishment for Illegal Immigrants

Florida House Representative Dane Eagle (Cape Coral) has introduced a bill in the Florida Legislature to make criminal offenses to be punished more severely if committed by an illegal immigrant. This bill, filed in December of 2016 and currently in the Criminal Justice Subcommittee, would enhance punishments to the next level offense. For instance, a first degree misdemeanor of the first degree becomes a third degree felony, a third degree felony becomes a second degree felony and so on. This change would apply to any criminal offense that involves the use or threat of physical force against another person.

It is unclear whether this bill, if passed, would survive constitutional scrutiny. Opponents would argue that this legislation violates the equal protection clause of the U.S. Constitution by punishing two people differently based upon their alienage. Others would point to the fact that the federal government has a robust immigration policy that preempts states from enacting their own due to the supremacy clause. Specifically they would argue that the United States already has created penalties for those who enter illegally. Also, there becomes the practical reality of how a prosecutor is going to prove someone is here illegally without violating the right to remain silent.

Proponents say this will decrease illegal immigration in Florida and give prosecutors another tool to keep criminals off the streets. They will argue that the law does not directly conflict with any federal law. The state bill does not attempt to change federal law, only compliments it. It does not punish people for being here illegally, but for committing violent crime while being here illegally. Supporters will likely argue that while the equal protection clause applies to illegal immigrants, it is applied in a much less scrutinizing way than when applied to those who are here legally. In Plyler v. Doe, back in 1982, the U.S. Supreme Court reasoned that unlawful status is not a “constitutional irrelevancy” and asked only if the government had a rational basis for different treatment of illegal immigrants compared to others.

As far as our research shows, there is no similar current law on the books in any state, so there are no clear answers to these legal questions. Let us know what you think!

Blood Draw Rules for DUIs Likely Invalid

When can the police force you to take a blood test if they think you have been driving under the influence? Not as often as they want to. If you live in Florida, take out your driver’s license. On the very bottom in tiny letters, it says “operation of a motor vehicle constitutes consent to any sobriety test required by law.” A recent U.S. Supreme Court case has severely limited as to when a blood test can be required by law, and what the penalties can be for refusing one.

Lets review what the Florida Legislature wanted before the U.S. Supreme Court stepped in. The relevant statutes say three main things 1) “Any person who accepts the privilege… of operating a motor vehicle… is… deemed to have given his or her consent to submit to an approved chemical test… of his or her blood.” 2) If someone is unconscious in the hospital after a crash, police have reasonable suspicion that the unconscious person was driving under the influence and a breath test/urine test are “impracticable”, that unconscious person is “presumed” to consent to a blood test. 3) Police could forcibly draw blood if they have probable cause to believe that someone committed a DUI causing death or serious bodily injury. What happens when someone refused a blood test? Importantly, refusing to submit to blood testing constituted an additional criminal offense, when the person had a previous refusal. This act became a misdemeanor with a maximum penalty of a year in the county jail.

Not so fast! In Birchfield v. North Carolina, the Supreme Court recently reasoned that a warrant is required for a blood test for DUIs. Blood tests cannot occur as a matter of course “incident to an arrest” for a DUI. The Supreme Court reasoned that implied consent (#1 above), cannot extend to criminal penalties for those who drive on the road. In other words, while it may be okay to suspend someones license for refusing to submit to a blood test, actually charging them with a crime is not okay. The Court focused on the intrusive nature of sticking a needle into someones body versus a urine or breath test. Remember, the Court previously held in Missouri v. McNeely that the natural dissipation of blood alcohol does not excuse police from getting a warrant either. After this landmark case, blood tests are going to become more and more difficult for law enforcement to attain in DUI cases.

Note: This blog is for informational purposes ONLY and does NOT constitute legal advice.