LAKELAND, Fla. — The Florida appeals court that ruled that an iPhone user can be compelled to give up the passcode to unlock his cellphone didn't feel it was covered by Fifth Amendment protections against self-incrimination, a law professor said.

"I was aware of the case, and it is very interesting," Jon L. Mills, professor of law and dean emeritus at the University of Florida Levin College of Law and director of the Center for Governmental Responsibility, said during a Florida Record email interview. "The court finds that a warrant that sought disclosure of the defendant's passcode is not a violation of the Fifth Amendment. That conclusion is based on the determination that the code is not incriminating testimony in and of itself."

The case involves charges against Aaron Stahl, who allegedly was caught using his iPhone to take up-skirt photos of a woman without her consent. Stahl was charged with video voyeurism, which is a third-degree felony under a 2014 Florida Statute. Police got a search warrant to search Stahl's iPhone but were stymied because Stahl's cellphone was passcoded and he refused to provide the passcode.

The trial court denied the state's motion that Stahl be compelled to provide the passcode, a decision the state appealed to the 2nd District Court of Appeal. The court handed down its decision Dec. 7, granting the state's petition.

Writing the decision for the appeals court, Judge Anthony Black cited the strongbox argument referred to in the 1988 U.S. Supreme Court case of Doe v the United States.

That case's unnamed defendant had been subpoenaed by a grand jury in the U.S. District Court for the Southern District of Texas, looking into allegedly fraudulent manipulation of oil cargoes and unreported income. Doe was ordered by the grand jury to produce records from offshore accounts, which Doe did in part but invoked his Fifth Amendment right against self-incrimination for other some of the documents ordered.

Doe's banks declined to provide the information without the defendant's consent, which the grand jury tried to compel. The district court refused later found with Doe, pointing out he had not been indicted for any crime and that trying to compel him to agree to the release of some documents amounted to a “fishing expedition” from which he rightly claimed Fifth Amendment protections. The 5th Circuit U.S. Court of Appeals reversed that decision and ordered that Doe be held in contempt if he did not consent to the release of records. Doe refused and appealed to the U.S. Supreme Court.

The nation's highest court ruled that Doe's Fifth Amendment rights were not triggered by the grand jury's efforts to compel Doe to produce documents. The late Justice Harry A. Blackmun, writing the majority decision, wrote the strongbox argument, which states a defendant may be compelled to produce the key to a strongbox with incriminating information but could not be forced to provide the safe's combination.

Black, writing the appeals court's decision in the Stahl case last month, found comparison between Stahl and Blackmun's strongbox argument.

“We question whether identifying the key which will open the strongbox — such that the key is surrendered — is, in fact, distinct from telling an officer the combination,” Black wrote. “More importantly, we question the continuing viability of any distinction as technology advances.”

The relevance in the comparison is that the passcode exists, Mills said.

"In this case, the court concludes that the passcode exists," he said. "Nothing has to be created — only disclosed. And the court concludes the passcode is not testimonial."

That points to a key difference between the Stahl case and a similar situation in San Bernardino, California, in which the FBI asked Apple to provide a passcode so that encrypted data on a terrorism suspect's iPhone could be accessed.

"This is different from the San Bernardino case because the government in that case was asking Apple to create code to obtain access to that phone," Mills said.

More case law can be expected on this issue, Mills said.

"The law on this issue is definitely not settled," he said.

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