2019 IL App (3d) 170814
Ill. App. Ct.2019Background
- Spicer was a passenger in a car stopped by police; a drug dog alerted and officers searched the vehicle, finding a pill bottle containing cocaine and drug paraphernalia on the passenger side.
- A cell phone was found on Spicer during a search incident to arrest; the phone was passcode-protected and Spicer admitted ownership but refused to divulge the passcode.
- Law enforcement obtained a search warrant authorizing broad access to the phone’s contents for a one-month period; officers could not access the phone because of the passcode.
- The State moved to compel Spicer to provide the passcode; Spicer invoked his Fifth Amendment privilege against self-incrimination and refused.
- The trial court denied the State’s motion, finding compelling the passcode would be testimonial and the State had not satisfied the foregone-conclusion exception; the State filed a certificate of impairment and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction: Whether State may appeal denial of motion to compel | Denial prevents admission of phone evidence and substantially impairs prosecution, so appealable under Rule 604(a)(1) | Order is not a suppression order and is not appealable | Court: State’s certificate of impairment sufficient; appealable under Rule 604(a)(1) |
| Whether compelling passcode production violates Fifth Amendment | Disclosure is not protected because foregone-conclusion applies (State knows phone exists, Spicer knows passcode, and warrant establishes relevance) | Compelling passcode is testimonial (requires use of mind) and foregone-conclusion not met because State cannot particularize phone contents | Court: Compelling passcode would be testimonial; foregone-conclusion not satisfied as State failed to identify contents with reasonable particularity; motion denial affirmed |
Key Cases Cited
- Fisher v. United States, 425 U.S. 391 (testimonial act-of-production and foregone-conclusion framework)
- United States v. Hubbell, 530 U.S. 27 (act of production may be testimonial when it requires use of the contents of the mind)
- In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir.) (providing access credentials can be testimonial)
- United States v. Greenfield, 831 F.3d 106 (2d Cir.) (foregone-conclusion standard requires reasonable particularity)
- G.A.Q.L. v. State, 257 So. 3d 1058 (Fla. Dist. Ct. App.) (compelling passcode is testimonial; foregone-conclusion requires identification of specific evidence)
- People v. Drum, 194 Ill. 2d 485 (order barring evidence from factfinder can be appealable)