Authorities believe they have plenty of evidence against Hencha Voigt, a reality TV show star accused of extorting a South Beach socialite over private sex videos. But they want one more thing.
Voigt’s iPhone password.
Prosecutors on Tuesday asked a Miami-Dade judge to force Voigt and a man also accused in the “sextortion” plot to unlock their phones. It’s a request that sets up the nation’s latest test of law enforcement authority vs. the constitutional right to remain silent — one that happens to have a Miami mix of skin and social media semi-celebrities.
“This is a fishing expedition,” Voigt’s attorney, Kertch Conze, told the judge Tuesday. “You are asking my client to be compelled to divulge her thought process. This is not a fingerprint, or a blood sample for DNA purposes.
“It’s what is in her mind and what we believe can be incriminating and a violation of her right to remain silent.”
The controversial question has popped up across the country, producing divided decisions. Judges have struggled to determine how much access law enforcement can get to smartphones, tablets and hard drives — particularly ones using increasingly sophisticated encryption technology.
Most notably, Apple last year resisted the federal government’s attempt to order the company to help unlock an iPhone owned by the Islamic State-inspired gunman who killed 14 people in San Bernardino, California. The company insisted it could not enter the encrypted phone. The government eventually dropped its court battle after an undisclosed third party got into the phone.
Prosecutors last year revealed they could not enter the encrypted hard drive of a Miami Beach child porn suspect who later killed himself.
In making their request in Voigt’s case, prosecutors are relying on a December appeals court decision that allowed police in Sarasota to force a suspected voyeur to give up his iPhone passcode. The man, Aaron Stahl, was accused of taking undercover “upskirt” photos of women in a mall.
No other state appeals court in Florida, nor the state’s Supreme Court, has weighed in on the issue.
State and federal courts across the country have split on whether to force defendants to give up their passwords, according to Mark Rumold, an attorney with the Electronic Frontier Foundation.
There is serious conflict about what the law requires in Florida.
Mark Rumold, an attorney with the Electronic Frontier Foundation
“These cases are coming up all over the country in increasing frequency,” said Rumold, adding: “There is serious conflict about what the law requires in Florida. My firm view is that the government can never compel a suspect to provide evidence from the contents of their mind in order to assist a criminal prosecution.”
The decision in Voigt’s case will fall to Miami-Dade Circuit Judge Charles Johnson, who will issue a ruling next week.
“I’m going to have read these cases with a fine-tooth comb,” Johnson said. “I’m surprised by this case.”
Voigt, 29, and Wesley Victor, 33, are accused of extortion, conspiracy to extort and the unlawful use of a phone. Voigt, of Hollywood, is a self-described “fitness model” who has more than 193,000 followers on Instagram. Last fall, she starred on E!’s “Miami WAGS,” a reality show that followed the wives and girlfriends of sports celebrities.
The pair is accused of shaking down social-media celebrity YesJulz, real name Julieanna Goddard, who has built a worldwide following as a worldwide event promoter who parties with rappers and athletes. YesJulz has been called the “Queen of Snapchat,” leading to marketing deals with companies such as Puma and Red Bull.
Her publicist, in a New York Times feature story, said she has more than 300,000 viewers on Snapchat, along with hundreds of thousands of followers on Twitter and Instagram. She’s also appeared as a host on MTV.
Cellphone evidence played a crucial role in building the case against Voigt and Victor. According to prosecutors, Voigt used her iPhone to contact YesJulz’s assistant, Imani Simmons, to notify her that “someone had hacked” the celebrity’s phone. Voigt even sent screen shots and clips of the videos.
Voigt also said that the blackmailer would use a “trap” phone to demand money in July 2016.
“But don’t threaten them, be super nice, be super nice,” Voigt wrote in a text message to the victim. “U give them the money ... And they don’t so something w it”.
Using the “trap” phone, her accused accomplice Victor allegedly sent texts demanding $18,000 cash.
“you can have them back as I said you dope chick. I like your movment look if I feel any fun business game over your choice,” read one text message sent to YesJulz and her assistant.
The two gave YesJulz a 24-hour deadline, according to the police report.
Within minutes of that last text message, Voigt and Victor were arrested together in her car on West Avenue near Miami Beach, according to investigators.
After their arrest, the videos made their way to the internet anyway.
Exactly how the two might have acquired the footage remains unclear. But the videos were on YesJulz’s own phone, which had disappeared at a party attended by Voigt, according to prosecutors. They believe that adds to the circumstantial evidence that she was behind the plot.
For her part, Voigt claims she only reached out to her friend YesJulz because she too had once had explicit videos stolen from her and posted on the internet, according to defense documents. Her attorney, Conze, argues she is being targeted by police simply because she happens to also be friends with Victor.
“There is no evidence she ever threatened to publish those videos,” Conze told the judge Tuesday. “In fact, she was trying to help.”
However, phone records show that while Voigt was texting YesJulz’s assistant, she was also calling and texting Victor, prosecutors said. Prosecutors believe the two were working together to shake down YesJulz. But the actual content of those text messages — which could provide critical evidence — remain locked on Voigt’s iPhone and Victor’s Blackberry seized during their arrest.
A judge approved a search of the phones, but so far, digital investigators have been unable to gain access to the devices.
“The defendants should produce the actual passcodes ... or the defendants could be compelled to enter the passcodes into the phones themselves,” prosecutor Michael Filteau told the judge. “The law here is clear.”
Defense lawyers bristled, saying giving up the passwords — if their clients even remember the numbers — amounts to self-incrimination. Victor’s attorney, Zeljka Bozanic, said prosecutors had presented no compelling reasons to violate his client’s Fifth Amendment protections.
“They have no idea if there is any evidence on the phones,” she said.