State of Florida v. Johnathan David Garcia

Supreme Court of Florida
____________

No. SC20-1419
____________

STATE OF FLORIDA,
Petitioner,

vs.

JOHNATHAN DAVID GARCIA,
Respondent.

October 27, 2022

COURIEL, J.

We took this case to answer questions posed by the Fifth

District Court of Appeal 1 about whether requiring a defendant to

disclose the passcode to an encrypted smartphone violates his

constitutional right not to “be compelled in any criminal case to be

a witness against himself.” U.S. Const. amend. V.

After considering the parties’ briefs and oral arguments, we

conclude that we must answer a different question first: whether

the court properly granted certiorari below, in Garcia v. State, 302

1. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
So. 3d 1051 (Fla. 5th DCA 2020). See Polk Cnty. v. Sofka, 702 So.

2d 1243, 1245 (Fla. 1997) (declining to address the certified

question because “the limits of a court’s jurisdiction are of ‘primary

concern,’ requiring the court to address the issue ‘sua sponte when

any doubt exists’ ” (quoting Mapoles v. Wilson, 122 So. 2d 249, 251

(Fla. 1st DCA 1960))).

We find that it did not. The order before the Fifth District did

not cause Garcia irreparable harm—that is, a material injury that

could not be corrected on postjudgment appeal. The district court

therefore did not have certiorari jurisdiction. Furthermore, even if

jurisdiction had been established, it could not be shown that the

circuit court violated a clearly established principle of law. So we

quash the Fifth District’s decision to grant the writ and remand for

further proceedings consistent with our decision.

I

On March 8, 2018, someone shattered Terrell Collins’s

bedroom window. Police investigating the crime scene found a

Samsung smartphone nearby. Collins’s girlfriend, Ana Diaz,

speculated that the culprit was her ex-boyfriend, Johnathan Garcia,

who she believed was following her. At the police’s request, Diaz

-2-
called the phone number she had saved in her phone as Garcia’s,

and the smartphone began to ring. It displayed Diaz’s name and

phone number.

About a month later, on April 17, Diaz called police back to

Collins’s home to show them a GPS tracker she had discovered on

her car. The police researched the tracker and learned it could be

traced by a smartphone application. The police submitted the

tracker into evidence under the case number used for Collins’s

shattered window.

The State charged Garcia with aggravated stalking with a

credible threat, in violation of section 784.048(3), Florida Statutes

(2018), and with throwing a deadly missile into a building, in

violation of section 790.19, Florida Statutes. On January 4, 2019, 2

the State obtained a search warrant to search the smartphone for

2. Our record in this case does not explain the approximately
eight-month delay between the authorities’ seizure of the
smartphone and their application for a search warrant.

-3-
evidence related to Garcia’s charges. The smartphone, however,

was passcode protected. 3

The State filed a motion to compel Garcia to disclose the

smartphone’s passcode. Declining to concede ownership of the

smartphone, Garcia argued that such compelled disclosure would

violate his Fifth Amendment privilege against self-incrimination.

The trial court granted the State’s motion.

3. A smartphone passcode prevents unintended users from
accessing a smartphone’s contents by encrypting them. Encrypting
a smartphone’s contents “translates the data into a format that is
unintelligible until it is translated back into its original form
through use of a decoding mechanism,” or passcode. Lawful
Access, U.S. Dep’t of Just., (last updated Oct. 30, 2020),
https://perma.cc/6VJV-2UMH. “Entering the password decrypts
the [data on the] device, and decryption permits a user to
manipulate the files the device contains.” Orin S. Kerr, Decryption
Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905, 958 (2021).

“Service providers, device manufacturers, and application
developers . . . deploy[] products and services with encryption that
can only be decrypted by the end user or customer.” Lawful
Access. This means that the end user or smartphone owner may
have sole knowledge of the passcode, or sole biometric access—
using a fingerprint or facial recognition—to the smartphone, so
without the owner’s permission, its contents are “warrant-proof.”
Id. Decryption software needed to bypass a smartphone passcode
is not universally available; the record before us is silent as to
whether the authorities in this case have access to it.
-4-
Garcia then filed a petition for writ of certiorari in the Fifth

District, contesting the trial court’s order to compel. The Fifth

District granted the writ and quashed the trial court’s order to

compel, without discussing whether Garcia had demonstrated that

the order would cause him irreparable harm.

The State sought discretionary review in this Court.

II

Although it did not do so below, the State raises subject-

matter jurisdiction here, contending that the Fifth District should

have denied the writ under our cases governing its narrow scope

and intended use. See Cunningham v. Standard Guar. Ins., 630 So.

2d 179, 181 (Fla. 1994) (“[T]he defense of subject-matter

jurisdiction can be raised at any time.” (citing Fla. R. Civ. P.

1.140(h)(2))).

A writ of certiorari to correct a nonfinal order is indeed “an

extraordinary remedy.” Martin-Johnson, Inc. v. Savage, 509 So. 2d

1097, 1098 (Fla. 1987). In the normal course of proceedings,

Florida law authorizes interlocutory appeals from only a few types of

-5-
nonfinal orders. Id. at 1098 n.2 (citing Fla. R. App. P. 9.130). 4

Otherwise, appellate review is generally “postponed until the matter

is concluded in the trial court” and addressed in a final order. Id.

at 1098; see also Fla. R. App. P. 9.130 (Committee Notes, 1977

Amendments) (“[I]t is extremely rare that erroneous interlocutory

rulings can be corrected by resort to common law certiorari. . . .

[B]ecause the most urgent interlocutory orders are appealable

under this rule, there will be very few cases in which common law

certiorari will provide relief.”).

4. Florida Rule of Appellate Procedure 9.130 authorizes
appeals only for specific types of nonfinal orders. For example:

(3) Appeals to the district courts of appeal of
nonfinal orders are limited to those that:
(A) concern venue;
(B) grant, continue, modify, deny, or dissolve
injunctions, or refuse to modify or dissolve injunctions;
(C) determine:
(i) the jurisdiction of the person;
(ii) the right to immediate possession of
property, including but not limited to orders that
grant, modify, dissolve, or refuse to grant, modify,
or dissolve writs of replevin, garnishment, or
attachment;
....

Fla. R. App. P. 9.130.
-6-
For a district court to grant a writ of certiorari, the petitioner

must “demonstrate that the contested order constitutes ‘(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.’ ” Bd. of Trs. of Internal

Improvement Tr. Fund v. Am. Educ. Enters., 99 So. 3d 450, 454 (Fla.

2012) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d

812, 822 (Fla. 2004)). Courts consider in tandem whether the

contested order would cause the petitioner material injury and

whether the petitioner has an adequate remedy on appeal, referring

to the combined question as whether the petitioner would suffer

“irreparable harm.” See Citizens Prop. Ins. Corp. v. San Perdido

Ass’n, 104 So. 3d 344, 351 (Fla. 2012) (explaining that the

threshold inquiry is whether there exists “a material injury that

cannot be corrected on appeal, otherwise termed as irreparable

harm”). And we address the irreparable harm question prior to

determining whether the contested order departed from the

essential requirements of the law. See Williams v. Oken, 62 So. 3d

1129, 1132-33 (Fla. 2011) (“The last two elements [which constitute

irreparable harm] are jurisdictional and must be analyzed before

-7-
the court may even consider . . . whether the trial court departed

from the essential requirements of the law.”).

Here, the trial court’s order compelling Garcia to produce the

smartphone’s passcode may very well materially injure his defense

at trial. If Garcia knows and discloses the smartphone’s passcode,

leaving aside the smartphone’s contents, he would be providing

evidence to support the conclusion that he owns the smartphone.

And that evidence would be corroborated by the fact that the

smartphone rings when his ex-girlfriend calls his number. Further,

by giving evidence to support his ownership of a smartphone found

at the crime scene, Garcia’s disclosure of the passcode would also

tend to prove that he was there at some point—likely at the time of

the crime, given that the phone was still charged enough to

function when it was discovered.

We find, however, that Garcia could adequately remedy these

potential, admittedly material, injuries on postjudgment appeal of a

final order. See State v. Pettis, 520 So. 2d 250, 253 n.2 (Fla. 1988).

On the record before us now, we cannot know what use of the

smartphone evidence the State will ultimately propose to make,

whether such evidence will be admitted by the trial court, or how

-8-
any such use would be rebutted by Garcia. These considerations

would shape the questions of law a court would consider on

appellate review. It is for precisely this reason that “[g]enerally,

parties must wait until after a final order is issued before seeking

appellate review.” Rodriguez v. Miami-Dade Cnty., 117 So. 3d 400,

404 (Fla. 2013); see also Jaye v. Royal Saxon, Inc., 720 So. 2d 214,

215 (Fla. 1998) (“The judicial policy in favor of limited certiorari

review is based on the notion that piecemeal review of nonfinal trial

court orders will impede the orderly administration of justice and

serve only to delay and harass.”); Martin-Johnson, Inc., 509 So. 2d

at 1098 (“[C]ommon law certiorari is an extraordinary remedy and

should not be used to circumvent the interlocutory appeal rule

which authorizes appeal from only a few types of non-final orders.”).

In the absence of irreparable harm incapable of remedy on

postjudgment appeal, the district court had no jurisdiction to issue

a writ of certiorari.

While that conclusion decides this case, we cannot say the

trial order constitutes a departure from the essential requirements

of the law—another requirement for a grant of certiorari. See

Combs v. State, 436 So. 2d 93, 96 (Fla. 1983) (stating that district

-9-
courts should find that there is a departure from the essential

requirements of the law “only when there has been a violation of a

clearly established principle of law resulting in a miscarriage of

justice” (emphasis added)).

To the contrary, as the parties demonstrate in their briefing,

this case may, if and when properly before us, pose questions we

have not previously answered regarding the scope of the Fifth

Amendment privilege against self-incrimination, or for which there

was no clearly established law binding on the trial court.

Petitioner’s Initial Brief on the Merits at 27-28 (citing Doe v. United

States, 487 U.S. 201, 215 (1988) to support its argument that

passcode disclosure is not a “testimonial” communication and

therefore is not protected by the Fifth Amendment); Petitioner’s

Reply Brief on the Merits at 4 (citing Kastigar v. United States, 406

U.S. 441, 443-48 (1972), and United States v. Gecas, 120 F.3d

1419, 1428-29 (11th Cir. 1997), for the proposition that a criminal

defendant may not invoke the Fifth Amendment before trial because

the Fifth Amendment only protects a defendant during a “criminal

case”); Brief of Amici Curiae American Civil Liberties Union,

Electronic Frontier Foundation, and National Association of

- 10 -
Criminal Defense Lawyers at 14 (citing United States v. Hubbell, 530

U.S. 27, 44-45 (2000), to demonstrate that Garcia’s passcode is not

a “foregone conclusion” unprotected by the Fifth Amendment). The

district courts of appeal have reasoned to differing conclusions

about whether disclosure of a smartphone passcode is testimonial. 5

The courts of last resort in several states have disagreed about

whether the compulsion of such disclosure in circumstances like

these would violate a defendant’s constitutional right against self-

incrimination. 6

5. Prior to the Fifth District’s decision, Florida’s Fourth
District and Second District Courts of Appeal had directly
addressed the question and reached opposite conclusions. In State
v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016), the Second District
held the Fifth Amendment did not protect a defendant from
compelled disclosure of his smartphone’s passcode and suggested
that such disclosure would not be testimonial. But in G.A.Q.L. v.
State, 257 So. 3d 1058 (Fla. 4th DCA 2018), the Fourth District
held the Fifth Amendment did protect a defendant from compelled
disclosure of his smartphone’s passcode and stated that such
disclosure would be testimonial.

6. Compare State v. Andrews, 234 A.3d 1254 (N.J. 2020)
(holding the Fifth Amendment does not protect against compelled
disclosure of a passcode), and Commonwealth v. Gelfgatt, 11 N.E.3d
605 (Mass. 2014) (holding the Fifth Amendment does not protect
against compelled disclosure of a computer password), with Seo v.
State, 148 N.E.3d 952 (Ind. 2020) (holding the Fifth Amendment did
protect against compelled disclosure of a passcode), Commonwealth

- 11 -
Nor have we or the U.S. Supreme Court conclusively

addressed the scope of Fifth Amendment protections in a pretrial

context such as this. 7 Thus, had Garcia demonstrated irreparable

harm and thereby required us to decide whether the order to

compel departed from the essential requirements of the law, we

would still reject his petition: it remains unsettled whether the Fifth

Amendment protects a criminal defendant, subject to a duly-issued

warrant, from being compelled to disclose a passcode to a

smartphone. We therefore cannot say on this record that the trial

court departed from the essential requirements of the law.

v. Davis, 220 A.3d 534 (Pa. 2019) (holding the Fifth Amendment did
protect against compelled disclosure of a computer password), and
State v. Pittman, 479 P.3d 1028 (Or. 2021) (holding a state
constitutional protection against self-incrimination did protect
against compelled disclosure of a passcode).

7. See Vogt v. City of Hays, 844 F.3d 1235, 1239 (10th Cir.
2017) (“The U.S. Supreme Court has not conclusively defined the
scope of a ‘criminal case’ under the Fifth Amendment.”). The
federal circuit courts are split. Compare Renda v. King, 347 F.3d
550, 552 (3d Cir. 2003), Burrell v. Virginia, 395 F.3d 508, 514 (4th
Cir. 2005), and Murray v. Earle, 405 F.3d 278, 285 (5th Cir. 2005),
with Higazy v. Templeton, 505 F.3d 161, 171, 173 (2d Cir. 2007),
Best v. City of Portland, 554 F.3d 698, 702-03 (7th Cir. 2009), Stoot
v. City of Everett, 582 F.3d 910, 925 (9th Cir. 2009), and Vogt, 844
F.3d at 1241.
- 12 -
III

We quash the Fifth District’s decision to grant a writ of

certiorari and remand for further proceedings in accordance with

this opinion.

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, and LABARGA, JJ.,
concur.
GROSSHANS, J., recused.
FRANCIS, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal
Certified Great Public Importance/Certified Direct Conflict of
Decisions

Fifth District – Case No. 5D19-590

(Orange County)

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General,
and Christopher J. Baum, Senior Deputy Solicitor General,
Tallahassee, Florida,

for Petitioner

Robert Wesley, Public Defender, Robert Thompson Adams IV,
Catherine Conlon, and Marie Taylor, Assistant Public Defenders,
Ninth Judicial Circuit, Orlando, Florida,

for Respondent

- 13 -
Harvey J. Sepler of Alvarez Gonzalez Menezes LLP, Hollywood,
Florida,

for Amici Curiae Independence Institute and Due Process
Institute

Jackie Perczek and Jeanelle Gomez of Black Srebnick, Miami,
Florida, and Diana L. Johnson, Jacksonville, Florida,

for Amici Curiae Florida Association of Criminal Defense
Lawyers and Professor Laurent Sacharoff

Daniel B. Tilley of American Civil Liberties Union of Florida, Inc.,
Miami, Florida, and Jo Ann Palchak of The Law Office of Jo Ann
Palchak, P.A., Tampa, Florida,

for Amici Curiae American Civil Liberties Union, Electronic
Frontier Foundation, and National Association of Criminal
Defense Lawyers

- 14 -