IL: The foregone conclusion doctrine applies to providing passcode to search a cell phone

The foregone conclusion doctrine applies to obtaining the passcode to a cell phone to search it. Thus, production of the passcode is non-testimonial for the Fifth Amendment. People v. Sneed, 2021 IL App (4th) 210180, 2021 Ill. App. LEXIS 637 (Nov. 18, 2021):

97 ii. Application of the Foregone Conclusion Doctrine to This Case

98 Applying these principles to the case before us, for the forgone conclusion doctrine to apply, the State must establish with reasonable particularity (1) it knows the passcode exists, (2) the passcode is within the defendant’s possession or control, and (3) the passcode is authentic. See Andrews, 234 A.3d at 1274-75; Stahl, 206 So. 3d at 136.

99 Ummel testified that (1) the phone is locked by a security passcode, (2) defendant has not provided him with the passcode, and (3) Ummel does not have the technology to “crack” the passcode. This evidence establishes with reasonable particularity that a passcode for the phone exists.

100 Ummel further testified that one phone was retrieved from defendant and another was retrieved from Spurling. Defendant provided his phone number on a jail form when bonding out. When Ummel dialed that phone number, the phone Ummel identified as belonging to defendant in the complaint for search warrant would ring. This evidence establishes with reasonable particularity that defendant has had possession or control of the phone and, accordingly, has possession or control of the passcode required to access and utilize the phone.

101 Last, the courts in Andrews and Stahl addressed the authenticity element in the context of a cell phone passcode, noting that a passcode is self-authenticating. Stahl, 206 So. 3d at 136; Andrews, 234 A.3d at 1275. That is, if the passcode provides entry to the phone, the passcode is authentic. Stahl, 206 So. 3d at 136; Andrews, 234 A.3d at 1275. Therefore, the authenticity element will be determined when the passcode is entered into the phone.

102 Accordingly, the State has shown with reasonable particularity that the passcode exists and is within defendant’s possession or control. The passcode will self-authenticate if it unlocks the phone. As such, the foregone conclusion doctrine is satisfied, rendering the act of producing the passcode non-testimonial and outside the protection of the fifth amendment privilege against self-incrimination.

103 Even applying Spicer’s analytical framework to the facts of this case, the foregone conclusion doctrine applies because, as discussed supra, 78-80, the State has also established with reasonable particularity the “contents of the phone.”

104 c. Evidence of the Act of Production at Trial

105 At the hearing on the motion to compel, and in its brief before this court, the State represented that it would not use at trial evidence of defendant’s act of production of the passcode. The State explained that it “doesn’t need an intricate pass code to prove ownership of the phone or its contents.” That is precisely the point of the foregone conclusion doctrine; the testimony implied by the act of producing the passcode-i.e., the defendant has knowledge of the passcode- “adds little or nothing to the sum total of the Government’s information.” Fisher, 425 U.S. at 411.

106 We agree with the State that the defendant’s knowledge of the phone’s passcode and his knowledge of the phone’s contents are two different things. Because of the commitment the State has made to the trial court-namely, that it will not use evidence of defendant’s act of production at trial-the State will be required to prove defendant’s knowledge of the phone’s contents through other means. And on remand, the State’s commitment is enforceable by the trial court.

Update: techdirt: Another Illinois Appeals Court Handles Compelled Password Production, Says There’s No Fifth Amendment Issue Here by Tim Cushing

This entry was posted in Cell phones, Privileges. Bookmark the permalink.

Comments are closed.