Opinion
No. 2D21-2601
07-29-2022
Marvin HARRIS, Appellant, v. STATE of Florida, Appellee.
Christopher E. Cosden, Law Office of Christopher E. Cosden, Fort Myers, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
Christopher E. Cosden, Law Office of Christopher E. Cosden, Fort Myers, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
BY ORDER OF THE COURT:
Appellant's motion for written opinion, filed on June 6, 2022, is granted. Appellant's alternative motions for rehearing, rehearing en banc, and to certify conflict are denied.
IT IS ORDERED that the prior opinion dated May 25, 2022, is withdrawn, and the attached opinion is substituted therefor. No further motions for rehearing will be entertained.
LUCAS, Judge.
Finding no merit in any of Marvin Harris' arguments, we affirm the order below holding him in indirect civil contempt for refusing to provide the passcode to access his iPhone in connection with a search warrant. See Rojo v. Rojo , 84 So. 3d 1259, 1261 (Fla. 3d DCA 2012) ("A trial court's contempt judgment 'comes to the appellate court clothed with a presumption of correctness' which should not 'be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.' " (quoting DeMello v. Buckman , 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005) )); see also State v. Shuttleworth , 927 So. 2d 975, 979 (Fla. 2d DCA 2006) ("We ordinarily defer to the trial court's factual findings and credibility determinations.").
As Mr. Harris concedes, he has not yet been charged with any crime related to his phone. His arguments challenging the warrant's issuance and the propriety of the traffic stop and seizure of his iPhone are, therefore, premature at this point. See In re Subpoena Duces Tecum , 228 F.3d 341, 348 (4th Cir. 2000) ("A warrant is a judicial authorization to a law enforcement officer to search or seize persons or things. To preserve advantages of speed and surprise, the order is issued without prior notice and is executed, often by force, with an unannounced and unanticipated physical intrusion."); United States v. Info. Associated with Email Acct. (Warrant) , 449 F.Supp.3d 469, 475 (E.D. Pa. 2020) ("Courts thus generally review challenges to search warrants either in a motion to suppress during a criminal case or in an after-the-fact civil rights lawsuit, not in a pre-execution motion to quash."); Donovan v. Hackney, Inc. , 583 F.Supp. 773, 778 n.3 (W.D. Okla. 1984) (observing that a person subject to a criminal search warrant "rarely, if ever, has an opportunity to challenge the validity of a search warrant before it is executed"); see also Abdo v. Abdo , 320 So. 3d 791, 794 (Fla. 2d DCA 2021) ("[P]roceedings charging contempt for failure to obey an order cannot be used as a method of reviewing the question of the sufficiency of the evidence to sustain the original action." (quoting Shadow Lakes Woods, Inc. v. Schneider , 414 So. 2d 3, 4 (Fla. 5th DCA 1982) )). Our affirmance, however, should not be understood as ruling on any of the Fourth Amendment arguments Mr. Harris has raised. To the contrary, if the State ultimately pursues charges against him in connection with any evidence found on his iPhone, Mr. Harris will have—and the court below may be called upon to consider—the full panoply of protections afforded under the state and federal constitutions.
We would also note that Mr. Harris has not argued that being held in contempt for refusing to provide his iPhone's passcode constitutes compulsion of potentially testimonial evidence. Compare State v. Stahl , 206 So. 3d 124, 136-37 (Fla. 2d DCA 2016) (granting State's certiorari petition to compel accused individual to provide the passcode to his iPhone that was the subject of a search warrant), with Garcia v. State , 302 So. 3d 1051, 1055, 1057 (Fla. 5th DCA 2020) (certifying conflict with Stahl and concluding that "the order under review requires that [the defendant] utilize the contents of his mind and disclose specific information regarding the passcode that will likely lead to incriminating information that the State will then use against him at trial"), and Pollard v. State , 287 So. 3d 649, 656 (Fla. 1st DCA 2019) ("The application of Stahl is inconsistent with protection of a defendant's right against self-incrimination in situations where a defendant has not given up his testimonial privilege in the password itself. "), and G.A.Q.L. v. State , 257 So. 3d 1058, 1061-62 (Fla. 4th DCA 2018) ("[R]evealing one's password requires more than just a physical act; instead, it probes into the contents of an individual's mind and therefore implicates the Fifth Amendment. ... Thus, being forced to produce a password is testimonial and can violate the Fifth Amendment privilege against compelled self-incrimination.").
Affirmed.
MORRIS, C.J., and KELLY, J., Concur.