OR: Order to produce passcode to an iPhone seeks testimonial evidence

Defendant was held in contempt for not providing the passcode to access his cell phone. The court of appeals affirms. Entering a passcode into a smartphone is testimonial in nature. The Fifth Amendment’s foregone conclusion doctrine as to knowledge of the passcode is applied under the state constitution. State v. Pitman, 300 Ore. App. 147 (Oct. 16, 2019):

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 without the passcode, violates the suspect’s rights against compelled 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 testimonial 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 otherwise)—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 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 defendant’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.