S.D.Tex.: No 5A protection on phone pass code, and inevitable discovery applies

The foregone conclusion rationale for access to passcodes for cell phones. There was no Fifth Amendment privilege to providing the passcodes. Inevitable discovery applies. United States v. Zhengdong Cheng, 2022 U.S. Dist. LEXIS 6437 (S.D.Tex. Jan. 12, 2022):

This Court need not determine the requisite standard in this case. Here, there is little dispute that the seized devices belonged to Cheng or were in his possession. There is no dispute that the seized devices were being used by Cheng. Put simply, the uncontroverted evidence establishes that devices were controlled by Cheng at the time he was detained. It is, by any standard, a foregone conclusion that Cheng knew the passwords for each of the seized devices at the time of his arrest. Since his knowledge of the passwords was a foregone conclusion, and since the mere possession of the devices and/or their contents was not a crime, an order compelling Cheng to provide the devices in an unencrypted state would be neither “testimonial” nor “incriminating,” and would not violate Cheng’s Fifth Amendment right against self-incrimination. Therefore, the Government would have been able to compel Cheng to decrypt the seized devices once the search warrants were issued. Since they would have been able to compel Cheng to produce the passwords or the devices unencrypted, the inevitable discovery doctrine applies, and the results of the search of the devices are not “fruit of the poisonous tree.”

To summarize, it was a foregone conclusion that Cheng knew the passwords to the seized devices; thus, his acts of producing the devices and the passwords would not qualify as “incriminating testimony” in violation of his Fifth Amendment privilege against self-incrimination. Moreover, the possession of the devices and/or the passwords that facilitated access was not testimonial. Consequently, the Government would have been able to have a court compel him to decrypt the devices. It follows, then, that the Government would have been able obtain a court order to compel Cheng to provide the passwords, and the contents of the devices would have been “inevitably discovered.” Since the evidence obtained from the seized devices would have been inevitably discovered, the inevitable discovery doctrine exception to the Fourth Amendment’s exclusionary rule applies to the devices, and the contents retrieved from them need not be suppressed as “fruit of the poisonous tree.”