JACOB HAGER

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JACOB HAGER,

Petitioner,

v. Case No. 5D20-1426

STATE OF FLORIDA,

Respondent.

________________________________/

Opinion filed August 28, 2020

Petition for Certiorari Review of Order from the Circuit Court for Volusia County, Dawn D. Nichols, Judge.

James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

Jacob Hager petitions for a writ of certiorari challenging a trial court order that compels him to disclose his cell phone’s passcode to the State. Hager argues that the order violates his Fifth Amendment privilege against self-incrimination. The State argues: (1) Hager will not suffer irreparable harm, meaning this court lacks certiorari jurisdiction; (2) compelling Hager to disclose his passcode is not testimonial; and (3) even if that

2 disclosure is testimonial, the “foregone conclusion” exception applies. See generally State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016) (articulating similar arguments).

For the reasons explained in this court’s opinion in Garcia v. State, No. 5D19-590 (Fla. 5th DCA Aug. 28, 2020), we reject the State’s arguments and grant the petition. See G.A.Q.L. v. State, 257 So. 3d 1058, 1065–66 (Fla. 4th DCA 2018) (Kuntz, J., concurring) (addressing foregone conclusion doctrine); Appel v. Bard, 154 So. 3d 1227, 1228 (Fla. 4th DCA 2015) (addressing certiorari jurisdiction, quoting Boyle v. Buck, 858 So. 2d 391, 392 (Fla. 4th DCA 2003)); Commonwealth v. Davis, 220 A. 3d 534, 548 (Pa. 2019) (“As a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind.”).

Moreover, as we did in Garcia, we again certify conflict with the second district’s decision in Stahl to the extent Stahl holds the oral disclosure of a passcode to a passcodeprotected cell phone or smartphone is non-testimonial and therefore not protected under the Fifth Amendment. We also certify, as being of great public importance, the same two questions certified in Garcia:

1. MAY A DEFENDANT BE COMPELLED TO DISCLOSE

ORALLY THE MEMORIZED PASSCODE TO HIS OR

HER SMARTPHONE OVER THE INVOCATION OF

PRIVILEGE UNDER THE FIFTH AMENDMENT TO THE

UNITED STATES CONSTITUTION?

2. IF ORALLY PROVIDING THE PASSCODE TO A

PASSCODE-PROTECTED

SMARTPHONE

IS A “TESTIMONIAL COMMUNICATION”

PROTECTED

UNDER

THE

FIFTH

AMENDMENT,

CAN

THE

DISCLOSURE OF THE PASSCODE NEVERTHELESS

BE

COMPELLED

UNDER

THE

FOREGONE

CONCLUSION EXCEPTION OR DOCTRINE WHEN

THERE IS NO DISPUTE THAT THE DEFENDANT IS

THE OWNER OF THE PASSCODE-PROTECTED

PHONE?

3

PETITION

GRANTED;

ORDER

QUASHED;

CONFLICT

CERTIFIED;

QUESTIONS CERTIFIED.

COHEN, EISNAUGLE, and SASSO, JJ., concur.