Case Information
Argued and submitted July 30, 2018, affirmed October 16, 2019, petition for
review allowed March 5, 2020 (
STATE OF OREGON, Plaintiff-Respondent, v.
CATRICE PITTMAN, Defendant-Appellant.
Marion County Circuit Court
16CN03799; A162950
Affirmed.
Tracy A. Prall, Judge.
Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
AOYAGI, J.
Affirmed. AOYAGI, J.
This appeal presents a question of first impression for us under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution: whether a court ordering a suspect to enter the passcode into a smartphone, which the police have lawfully seized and have a warrant to search but are unable to access with- out the passcode, violates the suspect’s rights against com- pelled self-incrimination. In this case, defendant was held in contempt after failing to comply with a court order to enter the correct passcode into a seized iPhone.
We agree with the trial court and the parties that the act of entering a passcode into a smartphone is testi- monial in nature. It communicates an assertion of fact— specifically that the suspect knows the passcode and, by extension, has access to the device (as its owner or other- wise)—and therefore is subject to protection under Article I, section 12, and the Fifth Amendment. We also agree with the trial court and the parties that it was appropriate to apply the “foregone conclusion” doctrine recognized under *3 the Fifth Amendment and, as a matter of first impression, adopt that doctrine for purposes of Article I, section 12. As for how that doctrine applies in this context, we conclude that, before the court could order defendant to enter the passcode into the iPhone, the state had to prove that defen- dant’s knowledge of the passcode was a foregone conclusion. The state did not, however, have to prove that the contents of the iPhone were a foregone conclusion. Given the latter conclusion, defendant’s challenge to the court’s ruling (as presented in her opening brief) is not viable, and we affirm.
FACTS
Defendant was the suspected driver in a single- vehicle accident in which a car struck a tree. At the hospital, hospital employees found white powder, drug parapherna- lia, and cash on her person, which they gave to the police. Defendant also had a purse with her at the hospital; the purse contained an iPhone.
Based on evidence collected, the police suspected that defendant had operated a vehicle under the influence of intoxicants, operated a vehicle while distracted, delivered methamphetamine, and/or conspired to deliver metham- phetamine. As relevant here, the police obtained a warrant to search the iPhone in defendant’s purse. The police soon determined that they could not access the iPhone without a passcode. According to the police department’s technolog- ical investigator, it would take “approximately a thousand years” using “the fastest computer we have access to” to access the information in the iPhone without the passcode. Further, the investigator testified, an iPhone can be set to “delete itself” after 10 incorrect passcode entries, posing an additional risk.
The state moved to compel defendant to disclose the iPhone’s passcode. Anticipating a constitutional challenge, the state asserted that, to the extent that disclosing a pass- code is a testimonial act, in that it “inferentially communi- cate[s] that [defendant] ha[s] control over—or at least access to—the phone,” the trial court nonetheless could compel the disclosure, because it was already a foregone conclusion that defendant had control over the phone. As discussed later, “foregone conclusion” is a term of art from Fifth Amendment jurisprudence. Defendant opposed the state’s motion, argu- ing, first, that the warrant was overbroad and, second, that compelling her to disclose the passcode to the iPhone would violate Article I, section 12, and the Fifth Amendment. On the latter issue, defendant focused on the act being testi- monial in nature and did not directly address the “foregone conclusion” issue. In reply, the state defended the warrant, and it reiterated its “foregone conclusion” argument in more detail.
The trial court held a hearing on the state’s motion. The state argued, consistently with its briefing, that it was a foregone conclusion that defendant knew the passcode and had access to the iPhone and that compelling her to disclose the passcode therefore would not violate Article I, *4 section 12, or the Fifth Amendment. In response, defendant argued that the foregone conclusion doctrine did not apply because the state failed to establish that the “desired evi- dence” actually existed on the iPhone, that defendant was in control of the iPhone and its passcode, and that the “desired evidence” on the iPhone was authentic. Defendant asserted that the state had to satisfy all three requirements for the doctrine to apply. [1] The state argued in rebuttal that it had established that defendant was in control of the iPhone and passcode and that requiring it to prove what was on the iPhone before searching it would “put[ ] the cart before the horse.” In the state’s view, there was no need for it to prove what was on the iPhone, beyond meeting the probable-cause requirements for the warrant.
After the hearing, the trial court issued a letter opinion, ruling in the state’s favor on the “foregone conclu- sion” issue and also ruling, subject to certain limitations, that the warrant was not overbroad. The trial court began its analysis by making several statements about “probable cause,” including that there was “probable cause to believe that defendant has knowledge of the passcode and contents of the iPhone.” The court then described its understanding of the foregone conclusion doctrine in a manner consistent with defendant’s argument—and inconsistent with the state’s argument—but nonetheless agreed with the state as to the result, i.e. , that ordering defendant to disclose the passcode would not violate Article I, section 12, or the Fifth Amendment:
“The foregone conclusion exception applies when the state can prove its independent knowledge of three elements: the documents’ existence, the documents’ authenticity, and respondent’s possession or control of the document. The court finds, based on the evidence found and Officer Boyce’s training and experience, that it is a foregone con- clusion that the iPhone will contain evidence of the crimes of unlawful delivery of a controlled substance and conspir- acy to commit delivery of a controlled substance.” On the same day that the trial court issued its let- ter opinion, the parties appeared before the court, and the court orally ordered defendant to enter the passcode into foregone conclusion issue after the hearing. She did so. As she had at the hearing, sion doctrine, the state had to prove that the information the state was seeking defendant argued in her supplemental brief that, to satisfy the foregone conclu- was on the iPhone, that the iPhone was in defendant’s control or that she knew the passcode, and that the state had “ of incriminating evidence actual knowledge on the phone.” (Emphasis in original.) The trial court gave defendant leave to file a supplemental brief on the the iPhone. An officer observed defendant enter “123456,” which failed to unlock the iPhone. The court again ordered defendant “to enter the appropriate code,” warning her that, “[i]f you enter a wrong code again, you would be in contempt of court.” Defendant again entered “123456,” which again failed. The court found defendant in contempt of court and sentenced her to 30 days in jail.
Defendant appeals the contempt judgment, chal- lenging both the underlying order requiring her to disclose the passcode and the contempt judgment itself, which the state agrees is permissible under the circumstances of this case. [2] Defendant raises two assignments of error. First, she argues that the trial court erred in ordering her to enter the passcode into the iPhone, because it violated her rights under Article I, section 12, and the Fifth Amendment. We address that issue below. Second, she argues that the trial court plainly erred in holding her in contempt, because the evidence was insufficient to establish a “willful” violation. Applying the standard for plain error review, we reject the second assignment of error without written discussion.
OREGON CONSTITUTIONAL ANALYSIS
We begin with Article I, section 12, because we typ-
ically “consider[ ] state constitutional claims before consider-
ing federal constitutional claims.”
State v. Cookman
, 324 Or
19, 25,
Under Article I, section 12, a person cannot be
compelled to testify against himself or herself in a crimi-
nal prosecution. Or Const, Art I, § 12 (“No person shall * * *
be compelled in any criminal prosecution to testify against
himself.”). That protection applies “to any kind of judicial or
nonjudicial procedure in the course of which the state seeks
to compel testimony that may be used against the witness
In this case, there is no real dispute that the three
*6
requirements for Article I, section 12, protection are met.
The trial court necessarily concluded that the act of enter-
ing a passcode into an iPhone is testimonial, that a court
order is compulsory, and that the state could use defendant’s
implicit testimony against her in a criminal prosecution—
otherwise the court never would have reached the “foregone
conclusion” issue. The state also appropriately concedes each
of those points on appeal, and we agree. The act of enter-
ing a passcode into a smartphone is testimonial in nature,
because it requires the suspect to reveal her knowledge
of the passcode and, by extension, allows a factual infer-
ence that she has access to the device and its contents.
[3]
A
court order is an “obvious example[ ]” of compulsion.
Fish
The dispute in this case instead centers on the trial
court’s application of the “foregone conclusion” doctrine, a
doctrine first articulated in
Fisher v. United States
, 425 US
entry of a numeric passcode into a smartphone. Most courts to consider the issue
See G. A. Q. L.
have agreed that that is a testimonial act.
v. State
, 257 So3d 1058,
developed regarding compelling the use of a fingerprint or other biometric data to
1061 (Fla Dist Ct App 2018) (collecting cases). By contrast, the law is far less
would implicate Article I, section 12. Because defendant has not raised the issue
or made any argument regarding it, we also express no opinion as to any possible
unlock an electronic device. We express no opinion on whether compelling some-
one to use their fingerprint or other biometric data to unlock an electronic device
distinction between ordering someone to enter a passcode unobserved, ordering
someone to enter a passcode while observed, or ordering someone to disclose a
passcode orally or in writing.
[3]
We consider in this case only the act that defendant was ordered to perform:
391, 411,
On appeal, defendant argues that the trial court erred in its application of the “foregone conclusion” doctrine. In her opening brief, defendant contends, as she did in the trial court, that, for the doctrine to apply, the state had to establish both that the contents of the iPhone were a fore- gone conclusion (known to the state with “reasonable par- ticularity”) and that defendant’s knowledge of the passcode was a foregone conclusion. Defendant argues that the trial court erred in finding that the iPhone’s contents were a fore gone conclusion, because, in her words, “the content of the *7 sought evidence was unknown to police” and “[t]he state did not state with any reasonable particularity the contents of the phone.” As for her knowledge of the passcode, defendant addresses that issue in only three sentences—she points out that she has never admitted to owning the iPhone, acknowl- edges that its presence in her purse “permitted an inference that [she] owned the phone,” but asserts that typing in the passcode “would be new and stronger evidence that [she] owned the phone.”
In response, the state argues that, to rely on the
“foregone conclusion” doctrine, it needed to establish only
that it was a foregone conclusion that defendant knew the
brief and do not address new arguments made for the first time at oral argument.
,
Given the parties’ arguments, we must consider whether and how the “foregone conclusion” doctrine applies under Article I, section 12. Because there is no Oregon case law on point, we begin by describing the doctrine as artic- ulated by the United States Supreme Court for purposes of the Fifth Amendment.
Under the Fifth Amendment, like Article I, sec-
tion 12, the government generally cannot compel a person
to commit an act that is “testimonial” in nature and that
can be used against the person in a criminal prosecution.
United States v. Hubbell
,
The United States Supreme Court has long held that the act of producing documents in response to a gov- ernment subpoena may be sufficiently testimonial to trigger Fifth Amendment protection—and we briefly discuss that case law because it is where the “foregone conclusion” doc- trine arose. The fact that the subpoenaed documents them- selves may contain incriminating information is irrelevant to the Fifth Amendment analysis, because they were cre- ated voluntarily, not under compulsion. Hubbell , 530 US at 36. Nonetheless, “[t]he act of producing evidence in response to a subpoena * * * has communicative aspects of its own, wholly aside from the contents of the papers produced.” Fisher , 425 US at 410. The act of production may require the subpoena recipient to “communicate information about the existence, custody, and authenticity of the documents,” making the act testimonial in nature. Hubbell , 530 US at 36-37.
In Fisher , the Court concluded that a government subpoena did not violate the Fifth Amendment where the existence and location of the subpoenaed documents was a “foregone conclusion,” such that the act of producing them was not testimonial in nature. 425 US at 411-12. In that case, Internal Revenue Service agents served summonses on taxpayers’ attorneys to obtain documents prepared by the taxpayers’ accountants. Id. at 394. Because the IRS already knew what documents existed and where they were located, the Court concluded that any tacit admissions communi- cated by the act of production would “add[ ] little or nothing to the sum total of the Government’s information.” Id. at 411. The “existence and location of the papers [was] a fore- gone conclusion,” so “[t]he question [was] not of testimony but of surrender.” [5] Id. This is sometimes called the “foregone conclusion exception” to Fifth Amendment protection. E.g. G. A. Q. L. v. State , 257 So3d 1058, 1063 (Fla Dist Ct App 2018) (“In general, if the state can meet the requirements of the foregone conclusion exception, it may compel other- wise ostensibly self-incriminating testimonial production of information.”).
existence, location, and authenticity of the subpoenaed documents did not have independent significance as incriminating evidence. We note that, in Fisher , the subpoena recipient’s personal knowledge of the By contrast, in Hubbell , the Court concluded that a *9 subpoena violated the Fifth Amendment where it was writ- ten so broadly as to require the defendant to apply his own mental processes to identify and assemble responsive docu- ments for the prosecution, in a manner akin to answering a detailed interrogatory or series of deposition questions:
“It is apparent from the text of the subpoena itself that the prosecutor needed [the defendant’s] assistance both to identify potential sources of information and to produce those sources. Given the breadth of the description of the 11 categories of documents called for by the subpoena, the col- lection and production of the materials demanded was tan- tamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions. The assembly of literally hundreds of pages of material in response to a request for ‘any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to’ an individual or members of his family during a 3-year period is the func- tional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition.”
In
Hubbell
, the Court rejected the government’s
argument that the “foregone conclusion” doctrine applied.
Referring to
Fisher
, the Court stated, “Whatever the scope
of this ‘foregone conclusion’ rationale, the facts of this case
plainly fall outside of it.”
Hubbell
,
Having examined
Fisher
and
Hubbell
, we under-
stand the “foregone conclusion” doctrine, as articulated for
Fifth Amendment purposes in the context of document sub-
poenas, as follows. If the existence, location, and authentic-
ity of documents is a foregone conclusion, then compelling a
person to
assemble
those documents for production does not
reveal the person’s mental processes and therefore is not suf-
ficiently testimonial to trigger Fifth Amendment protection.
However, if the government has minimal information about
what documents exist or what they contain, the act of locat-
ing and selecting the documents to produce may require the
subpoena recipient to use his or her own mental processes
in a way that renders the resulting response testimonial in
nature. That is why it matters whether the government has
identified the documents with “reasonable particularity” in
the subpoena. If it has, the government is not relying on a
*10
testimonial aspect of the person’s act of production to make
its case but instead is only seeking to compel the surrender
of the documents.
See Fisher
,
The United States Supreme Court has never applied
the “foregone conclusion” doctrine to any type of compelled
act other than a document production. Nevertheless, a num-
ber of state courts and lower federal courts have applied it
to other acts, including compelled decryption of electronic
devices by entry of a password or passcode or otherwise. The
resulting decisions are markedly inconsistent. Perhaps the
most significant point of disagreement is as to
what
needs
to be a foregone conclusion. At least one court has said that
the password itself has to be a foregone conclusion for the
doctrine to apply—while acknowledging that the govern-
ment would not need it if it were.
[6]
Other courts have said
that it is the suspect’s knowledge of the password or pass-
code that must be a foregone conclusion.
[7]
Yet others have
not need to compel Defendant to produce it because they would already know it”).
mind,” and “if the password was a foregone conclusion, the Commonwealth would
word is not a foregone conclusion because it is not known outside of Defendant’s
, 89 Va Cir 267, *4 (Va Cir Ct 2014) (“the pass
See Commonwealth v. Baust
[6]
-
defendant to decrypt several electronic devices—where the government estab-
lished that it was a foregone conclusion that the defendant had the ability to
at *1-3 (ND Cal Apr 26, 2018) (upholding magistrate judge’s order compelling the
decrypt the devices—and rejecting proposition that the government also had to
United States v. Spencer
,
See, e.g.
[7]
, No 17-cr-00259-CRB-1,
With that understanding of the genesis and cur-
rent status of the “foregone conclusion” doctrine in mind,
we must first decide whether the doctrine applies under
Article I, section 12. Defendant and the state have assumed
that it does, both in the trial court and on appeal, and the
prove that the contents of the devices were a foregone conclusion);
State v. Stahl
206 So 3d 124, 136 (Fla Dist Ct App 2016) (holding that it did not violate the Fifth
Amendment to compel the defendant to produce the passcode to a cell phone,
where the government established, “based upon cellphone carrier records and
[the defendant’s] identification of the phone and the corresponding phone num ber, that the phone was [his] and therefore the passcode would be in [his] pos-
session”);
Commonwealth v. Jones
, 481 Mass 540, 548,
As far as how the “foregone conclusion” doctrine applies in this context, both parties disagree with aspects of the trial court’s decision. Defendant argues that the state had to establish both the contents of the iPhone and defen- dant’s knowledge of the passcode as foregone conclusions, but she disagrees with the court’s determination that the iPhone’s contents were a foregone conclusion. For its part, the state argues that it only had to establish defendant’s knowledge of the passcode as a foregone conclusion—which is not how the court approached it—but it defends the court’s ultimate conclusion that compelling disclosure of the pass- code would not violate Article I, section 12.
After careful consideration of the principles under- lying the “foregone conclusion” doctrine, we agree with the state that it is only the testimonial aspect of the compelled act that must be a foregone conclusion, because it is only the testimonial aspect of the compelled act that is protected under Article I, section 12. Here, the testimonial aspect of entering the correct passcode into the iPhone is that it reveals defendant’s “knowledge” of the passcode. Fish 321 Or at 56 (acts that communicate a person’s “beliefs, knowledge, or state of mind” are testimonial); see also, e.g ., G. A. Q. L. , 257 So3d at 1061 (the act of revealing a pass- word “asserts a fact: that the defendant knows the pass- word”). The act communicates to the court, the prosecution, and potentially a jury that defendant knows the passcode and, by extension, has access to the device and its contents. As such, the state had to establish that defendant’s knowl- edge of the passcode was a foregone conclusion before the trial court could compel defendant to reveal that knowledge through a testimonial act.
The state did not need to establish, however, that
the contents of the iPhone were a foregone conclusion. In
our view, the courts that have adopted that approach under
the Fifth Amendment have transposed
Fisher
’s “existence,
location, authenticity” framework for document subpoenas
to a very different context without adequately grappling
with the significance of the different context. When the gov ernment subpoenas documents, it is
not in possession
of the
documents. In that context, although the Fifth Amendment
does not protect against the production of the documents
themselves, the defendant’s act of selecting and assembling
responsive documents may reveal the existence, location,
and authenticity of the documents in a way that is testi-
monial. By contrast, when the government seeks to compel
disclosure of the passcode to an electronic device that is
already lawfully in its possession, the government already
has possession of the data on the device. The act of entering
the passcode reveals only that defendant has
access
to that
data; it says nothing about the data itself. In that vein, it
bears remembering that Article I, section 9, and the Fourth
Amendment ensure that the seizure of the
data
itself is law-
ful, while Article I, section 12, and the Fifth Amendment
protect only against compelled testimony. As the Court
put it in
Fisher
, “the Fifth Amendment protects against
compelled self-incrimination, not the disclosure of private
information.”
As recently and aptly stated by the Massachusetts
Supreme Judicial Court, in applying both the Fifth
Amendment and its own state constitution, “In the context
of compelled decryption, the only fact conveyed by compel-
ling a defendant to enter the password to an encrypted elec-
tronic device is that the defendant knows the password, and
can therefore access the device.”
Commonwealth v. Jones
481 Mass 540, 547-48,
That brings us to the disposition of this case. In her opening brief, defendant argues that “the content of the sought evidence was unknown to police,” that “[t]he state did not state with any reasonable particularity the contents of the phone,” and that the trial court therefore erred in rul- ing that the iPhone’s contents were a foregone conclusion. Because we conclude that the state did not need to prove that the iPhone’s contents were a foregone conclusion, defen- dant cannot obtain reversal on that basis.
At oral argument, defendant challenged a different
aspect of the trial court’s ruling, specifically its determina -
tion that defendant knew the passcode to the iPhone, which
the court phrased in terms of “probable cause.” That is not
an argument that defendant makes in her opening brief.
The opening brief touches only briefly on defendant’s knowl -
edge of the passcode—admitting that the iPhone’s presence
in her purse “permit[s] an inference that [she] owned the
phone” but asserting that typing in the passcode “would be
new and stronger evidence that [she] owned the phone”—
and does not identify any purported error by the trial court
on that issue. To the extent that defendant intended to
, 97 Texas L Rev 767, 768-70 (2019) (reviewing nationwide case law
applying the foregone conclusion doctrine in the context of court orders to decrypt
Incrimination
device to the suspect”).
the password and the government presents the password prompt to decrypt the
as long as the government has independent knowledge that the suspect knows
stood such that “the Fifth Amendment poses no barrier to compelled decryption
electronic devices, and ultimately arguing that the doctrine should be under-
See also
Orin S. Kerr,
Compelled Decryption and the Privilege Against Self-
163
challenge that aspect of the trial court’s ruling, particularly
the court’s use of “probable cause” language, defendant did
not develop the argument sufficiently for us to consider it.
See State v. Dawson
, 277 Or App 187, 190, 369 P3d 1244
(2016) (declining to consider inadequately developed argu ment);
Beall Transport Equipment Co. v. Southern Pacific
We reject the first assignment of error as it pertains to Article I, section 12.
FEDERAL CONSTITUTIONAL ANALYSIS
Having rejected defendant’s argument under Article I,
section 12, we must next consider her argument under the
Fifth Amendment to see whether the result is any differ-
ent under federal law.
See
US Const, Amend V (“No person
*14
* * * shall be compelled in any criminal case to be a witness
against himself[.]”);
Schmerber v. California
, 384 US 757,
760,
In the trial court and on appeal, defendant has made the same arguments under the Oregon and federal constitutions; that is, she argues for the same analysis and court’s passcode-knowledge determination necessarily would have been success- questions—such as whether a foregone-conclusion determination is a legal ruling ful. To the contrary, we express no opinion on an issue that raises complicated or a factual finding and, if it is a factual finding, what standard of proof applies— that have not been briefed. We do not mean to suggest that a properly raised challenge to the trial [10] the same result under both. The state also argues that the analysis is the same. We have found no reason to interpret the Fifth Amendment differently than Article I, section 12, for present purposes. Accordingly, we independently apply the same analysis under the Fifth Amendment as we did under Article I, section 12, and reach the same result.
Affirmed.
,