by Douglas Ankney

The Supreme Court of Indiana held that a defendant cannot be forced to unlock her smartphone because doing so would violate her Fifth Amendment right against self-incrimination. The Court also provided a detailed rationale against extending the “foregone conclusion” exception of Fisher v. United States, 425 U.S. 391 (1976), to compelling a defendant to unlock a smartphone.

Detective Bill Inglis believed Katelin Seo was responsible for sending up to 30 harassing calls or text messages to “D.S.” on a daily basis. The substance of the messages was consistent, but the messages came from different, unassigned numbers. Inglis suspected Seo placed the calls using an app or internet program to disguise her phone number.

As a result of Inglis’ investigation, Seo was charged with several offenses. Inglis arrested her and took possession of her locked iPhone. When Seo was asked for her password, she refused to provide it. Inglis then obtained two warrants. The first authorized a forensic download so that law enforcement could search for “incriminating evidence.” The second “compelled” Seo to unlock the device under threat of “the contempt powers of the court” if she refused to do so. Seo refused to unlock her iPhone, and the State moved to hold her in contempt.

At the ensuing hearing, Seo argued that forcing her to unlock the iPhone would violate her Fifth Amendment right against self-incrimination. The trial court disagreed, concluding that “[t]he act of unlocking the phone does not rise to the level of testimonial self-incrimination.” The trial court found Seo in contempt but stayed its order pending her appeal. A divided panel of the Indiana Court of Appeals reversed the contempt order. The Indiana Supreme Court granted transfer, vacating the decision of the Court of Appeals.

The Court observed “[t]he Fifth Amendment’s Self-Incrimination Clause protects a person from being ‘compelled in any criminal case to be a witness against himself.’” The Clause means the State must produce evidence against an individual through “the independent labor of its officers, not by the cruel, simple expedient of forcing it from his own lips.” Estelle v. Smith, 451 U.S. 454 (1981). The privilege protects an individual from being compelled to provide even a link in the chain of evidence needed for prosecution. Hoffman v. United States, 341 U.S. 479 (1951).

But this constitutional protection only applies to compelled testimonial evidence and not to all compelled incriminating evidence. Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004). Evidence is testimonial if the accused’s communication either explicitly or implicitly relates a factual assertion or discloses information. Doe v. United States, 487 U.S. 201 (1988). While the most common form of testimony is verbal or written communications, physical acts can also have a testimonial aspect (such as nodding the head in response to a question). Fisher. When the government compels a suspect to produce physical evidence, that act is testimonial if it implicitly conveys information. United States v. Hubbell, 530 U.S. 27 (2000). But the information implicitly conveyed by the physical act must be information the prosecution did not already know. Fisher. If the prosecution already knows the information, then the “foregone conclusion” exception applies. Id.

The State argued that the foregone conclusion exception applied in Seo’s case because it already knew the implicit information Seo would provide by unlocking her phone, viz., that she “knows the password and thus has control and use of the phone.” The Court disagreed, reasoning that the act of giving law enforcement an unlocked smartphone communicates to the State, at a minimum, that (1) the suspect knows the password, (2) the files on the device exist, and (3) the suspect possesses those files. This communication is protected by the Fifth Amendment unless the State can show it already knows this information.

In Fisher, the IRS had subpoenaed several taxpayers’ documents that were in the possession of their attorneys. The attorneys argued that complying with the subpoena violated their clients’ right against self-incrimination. The Supreme Court of the United States (“SCOTUS”) ruled that producing the documents could be testimonial if the act conceded the existence, possession, or authenticity of the documents produced. But if the government could show it already knew this information, then the testimonial aspects were a “foregone conclusion,” and complying with the subpoena became a question “not of testimony but of surrender.” Since the government in Fisher already knew the documents existed, knew who possessed the documents, and could confirm the authenticity through the accountants who had prepared them, SCOTUS ruled that complying with the subpoena did not rise to incriminating testimony within the Fifth Amendment’s protection. Fisher was the first, and only, decision from SCOTUS to find that testimony implicit in an act of production was a foregone conclusion.

The Indiana Supreme Court explained that Fisher, Hubbell, and United States v. Doe, 465 U.S. 605 (1984), stand for the principle that when a suspect produces documents he is communicating that the documents exist, that he has possession of the documents, and the documents are authentic. The foregone conclusion exception requires the government to show it already knew this information before the foregone conclusion exception can apply. Thus, while the contents of the documents themselves are not protected by the Fifth Amendment, the act of producing them does communicate factual assertions that are protected by the Fifth Amendment.

In the instant case, the State failed to demonstrate that any particular files existed on the device or that Seo had possession of them. Inglis confirmed that he would be fishing for “incriminating evidence.” While there are apps and programs available that will disguise a sender’s phone number (e.g., Google Voice, Pinger, etc.), Inglis stated he did not know which particular app or file he was searching for. He wanted to search the phone to find which, if any, of those types of apps were on the phone, and then he would know which one Seo had used. Consequently, the foregone conclusion exception does not apply because Seo’s act of producing her unlocked smartphone would provide the State with information it did not already know.

The Indiana Supreme Court concluded that forcing Seo to unlock her iPhone for law enforcement would violate her Fifth Amendment right against self-incrimination. Thus, the Court reversed the trial court’s order finding Seo in contempt and instructed that court to dismiss the citation.

The Court then provided a rationale that underscored why the foregone conclusion exception should not be extended to compel production of a smartphone. The Court provided three main reasons.

First, smartphones are everywhere and contain everything. They are so ubiquitous that SCOTUS has likened them to appendages attached to the human anatomy. Riley v. California, 573 U.S. 373 (2014). And unlike a subpoena demanding production of documents within a specific file, an unlocked smartphone gives police access to an untold number of files without any limiter.

Second, extending the exception to smartphones may prove unworkable. Smartphones could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. Riley. Because of the overwhelming amount of personal information on a smartphone, several courts have required the government to identify the files it seeks with reasonable particularity when compelling a suspect to unlock his or her smartphone. (See opinion for referenced citations.)

But even so, unlike the situation where a suspect is compelled to produce particular documents, by unlocking a smartphone, the suspect turns over all files on the phone, giving police access to all those files. And if while searching the phone the police encounter an application protected by another password, would the foregone conclusion exception apply to force the suspect to unlock that as well? If the suspect has hundreds of thousands of files stored in iCloud, would police be permitted to rummage through them to locate the file it had described with particularity?

Finally, SCOTUS precedent and the limited application of the foregone conclusion exception counsel against extending it further. SCOTUS had recently opined that when “confronting new concerns wrought by digital technology [it] has been careful not to uncritically extend existing precedents.” Carpenter v. United States, 138 S. Ct. 2206 (2018). And this was evidenced in SCOTUS’s earlier Riley decision where it refused to extend application of the search-incident-to-arrest exception to a cellphone found on an arrestee. See: Seo v. State, 2020 Ind. LEXIS 485 (2020).

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