Top Court In Illinois Says Compelling Password Production Isn’t A Fifth Amendment Violation
Well, this is an unfortunate turn of events. The last time we discussed this issue in this state (March 2019), a state appeals court came to the opposite conclusion: compelling password production is a violation of rights.
That ruling said the foregone conclusion doctrine didn't apply, at least not the way the state wanted it to apply. The state said the only thing it needed to show was that the phone likely belonged to the criminal suspect. If it could provide enough evidence linking the phone to the arrested person, and could make the reasonable assumption the device contained evidence, these conclusions would allow compelled password production to bypass the Fifth Amendment.
That's not what's actually at stake here, the appeals court replied. The government wasn't interested in the passcode. It was actually interested in what the device contained, which it could access more easily if the defendant was forced to unlock it.
While the State is aware that the passcode existed and that Spicer knew it, the State could not know that the passcode was authentic until after it was used to decrypt Spicer's phone. Moreover, the production of Spicer's passcode would provide the State more information than what it already knew. Although the focus of the foregone conclusion is on the passcode, in our view, it properly should be placed on the information the State is ultimately seeking, which is not the passcode but everything on Spicer's phone.
That was the call made by this appeals court in the Spicer case - a ruling that did not go so far as to call all compelled production a Fifth Amendment violation, but one that made it clear the foregone conclusion" analysis should be applied to what the state is actually seeking, rather than what it assumes about phone ownership.
This decision (People v. Spicer) was applied by the district court in another criminal case. The court reached the same conclusion the appeals court did: compelled password production is a Fifth Amendment violation.
The state's Supreme Court, however, has recently reversed that decision. (h/t FourthAmendment.com) And in doing so, it has not only nullified the findings in Spicer, but established precedent that says the only foregone conclusion the government needs is the one connecting the phone to the criminal suspect.
And it reaches its conclusion despite acknowledging the password is not really what the cops want. They want an unlocked phone so they can access everything inside of it. This is from the decision's [PDF] discussion of the practical effects of the lower court's ruling.
The search warrant issued allowing a search of defendant's phone, and the circuit court entered an order denying the State's motion to compel defendant to provide the passcode to the phone. In determining whether the circuit court's order effectively quashed the search warrant, we observe that the definition of quash" is [t]o annul or make void; to terminate." Black's Law Dictionary (11th ed. 2019). Here, the search warrant authorized officers to search defendant's phone and required defendant to unlock the phone so officers could execute the warrant. The circuit court's denial of the motion to compel eliminated the requirement for defendant to comply with the search warrant. As such, we conclude that the circuit court's order annulled or voided the search warrant; thus, it had the substantive effect of quashing the search warrant.
We further conclude that the circuit court's denial of the motion to compel effectively suppressed evidence. Although the denial did not directly suppress specifically identified evidence, it prevented the State from accessing any evidence on the phone and presenting it to the factfinder, thereby having the substantive effect of suppressing evidence.
The government didn't want the passcode. It wanted an unlocked phone. The search to be performed did not target a passcode, but everything the passcode would provide access to. Police didn't have much evidence connecting the seized phone to the alleged crime (forged checks being deposited via mobile deposit), but still insisted the defendant should be forced to unlock the phone. There wasn't much in the way of any foregone conclusions," no matter which standard the lower court applied.
[Detective Todd] Ummel believed defendant's phone contained a photograph of the checks, and he was hoping to find" such a photograph. Ummel further sought additional files pertaining to the mobile deposits. He conceded, however, that he did not know for certain that any such files existed and that there was currently nothing connecting defendant to the transactions besides Spurling's statements. Ummel added that he had not attempted to subpoena records from defendant's cell phone carrier to obtain copies of text messages.
[...]
Applying those principles, the circuit court observed that Spurling's statements were the only evidence linking defendant's phone to the transactions in question and it would be speculative to presume that a photograph of the checks would remain on the phone after the transactions were complete. Though the circuit court did not perceive the State's endeavor as a fishing expedition, it concluded that the State did not establish with reasonable particularity that, at the time it sought the act of production, it knew the evidence existed, the evidence was in defendant's possession, and the evidence was authentic.
The appellate court (not the same one that handled the Spicer case) reversed the lower court's decision, declaring compelled passcode production to be harmless in terms of the Fifth Amendment.
In this case, the appellate court declined to follow Spicer and concluded that the compelled production of the passcode is nontestimonial, reasoning that a passcode may be used so often that retrieving it is a function of muscle memory rather than an exercise of conscious thought." 2021 IL App (4th) 210180, 59. The appellate court asserted that a cell phone passcode is more akin to a key to a strongbox than a combination to a safe."
Having decided that this act was nontestimonial, it didn't even bother to apply the foregone conclusion doctrine and skipped straight to siding with the government's assertions. That led to this appeal, which asked the state Supreme Court to decide whether or not compelling password production violates Fifth Amendment protections against self-incrimination.
The state of Illinois had plenty of friends pitch in on its behalf:
Before proceeding with our analysis, we acknowledge that this court granted a motion of Indiana, Arkansas, Florida, Idaho, Louisiana, Minnesota, Mississippi, New Jersey, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Utah, and Virginia (collectively, amici states) to file an amicus curiae brief in support of the State's position on appeal.
So, there's a handy list of states where governments feel citizens have too many constitutional protections... at least when it comes to phone searches. Good to know.
The state's top court says producing a passcode is testimonial, but not testimonial enough. The Fifth Amendment does not apply.
To summarize, the State established that, at the time it sought the act of production, it knew with reasonable particularity that the passcode existed, the passcode was in defendant's possession or control, and the passcode was self-authenticating. These implicit facts add little or nothing to the sum total of the [State's] information." Fisher, 425 U.S. at 411. In other words, the act of entering the passcode has no testimonial value, as the facts implicit in the act are already known by the State. Therefore, the facts are foregone conclusions and insufficiently testimonial to be privileged under the fifth amendment. For these reasons, we conclude that the foregone conclusion doctrine applies as an exception to the fifth amendment privilege in this case.
That's the call. The dissent, however, says the majority is forgetting there's another constitution in the mix here.
Because police have all the cell phone's contents, they may use any means at their disposal to decrypt the contents but one: they must not compel Sneed to decrypt or translate the contents of the cell phone. The Illinois Constitution provides: No person shall be compelled in a criminal case to give evidence against himself ***." Ill. Const. 1970, art. I, 10. Prosecutors intend to use the decrypted contents to prove Sneed committed forgery. The appellate court's order compels Sneed in a criminal case to give evidence against himself," and therefore it violates article I, section 10, of the Illinois Constitution.
The dissent goes on to point out investigators had other options. They just decided not to use them because it wasn't worth the expense.
The Illinois State Police, De Witt County, and the Clinton Police Department understandably decided that the prosecution of Sneed for forging less than $1000 worth of checks did not justify the expense of hacking or commercial decryption. The circuit court's order denying the State's motion to compel Sneed to decrypt the cell phone's contents left the police and prosecutors with a choice of either spending thousands in pursuit of decryption to lead to a conviction for a relatively minor offense or trying to obtain the conviction without the decryption.
But somehow the government is fine spending thousands on a single lowball prosecution in hopes that it might be easier in the future to bypass constitutional protections to engage in other lowball prosecutions.
And it worked. The state spent an untold amount of taxpayers' money seeking precedent that diminished their constitutional protections. Now, it's free to compel decryption in almost any criminal case, even if it has plenty of other means of obtaining evidence. The state wins. Illinoisans lose.