After finding jurisdiction because denying the state access to a cell phone by its forcing the revealing of its passcode was effectively suppressing the search warrant, the Illinois Supreme Court holds that the act of production doctrine of the Fifth Amendment doesn’t bar access to the phone because it is also accessible by a biometric scan. People v. Sneed, 2023 IL 127968, 2023 Ill. LEXIS 459 (June 15, 2023):
[T]he appellate court concluded that the act of producing a cell phone’s passcode is not an incriminating, testimonial communication under the fifth amendment and is therefore not privileged (id. ¶ 63). It further concluded that the foregone conclusion doctrine applied, rendering the act of producing the passcode outside the scope of fifth amendment protection. Id. ¶ 102. The appellate court reversed the circuit court’s order and remanded for further proceedings. Id. ¶ 108. We now affirm the judgment of the appellate court, albeit on different grounds.
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[*P71] Although the State concedes that the act of entering the passcode is testimonial, we ultimately conclude that the testimony implicit in that act is a “foregone conclusion” and thus insufficiently testimonial to be privileged under the fifth amendment. See Fisher, 425 U.S. at 411. Accordingly, it is irrelevant that producing the passcode may lead to incriminating evidence. See Doe, 487 U.S. at 208 n.6.
[*P72] 3. Act of Production Doctrine
[*P73] The United States Supreme Court articulated the act of production doctrine in Fisher, asserting that “[t]he act of producing evidence in response to a subpoena *** has communicative aspects of its own, wholly aside from the contents of the [evidence] produced.” 425 U.S. at 410. Therefore, the act of production doctrine allows a person to assert his fifth amendment privilege where the mere act of production itself—as opposed to the content of what is being produced—has testimonial implications. See id.
[*P74] 4. Testimonial
[*P75] Again, the State concedes that the compelled act of entering the passcode is testimonial, thus implicating the fifth amendment. However, the parties’ disagreement as to why the act is testimonial merits discussion. Acts that produce evidence are testimonial under the fifth amendment to the extent that performing such acts “implicitly communicate[s] statements of fact.” (Internal quotation marks omitted.) Hubbell, 530 U.S. at 36; see also Doe, 487 U.S. at 210 (to be testimonial, an act must implicitly or explicitly disclose information or convey a factual assertion). Under this rubric, in Hubbell, the United States Supreme Court concluded that the testimonial aspect of a compelled act of production “does nothing more than establish the existence, authenticity, and custody of items that are produced.” 530 U.S. at 40-41. Put another way, there are three assertions of fact implicit in a compelled act of producing evidence because the facts are necessary prerequisites to the performance of the act. Those implicit facts are that (1) the evidence exists, (2) the person producing the evidence possesses or controls it, and (3) the evidence produced is authentic. Id.
[*P76] The State concedes that compelling the production of the passcode is testimonial, but only to the extent that the act implicitly asserts the fact that defendant is able to unlock the phone, which establishes that the passcode exists, defendant possesses or controls the passcode, and the passcode produced is authentic. See id. The State acknowledges that many other facts may be inferred by a person entering a passcode, i.e., the phone is registered in the person’s name, the person made phone calls or sent text messages using the phone, or the person knows what information is stored on the phone. However, the State explains that, because none of those facts must be true for the person to have entered the passcode, none of them are implicitly asserted by the act of entering the passcode.
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[*P78] We find that compelling the act of entering a passcode to a cell phone is testimonial to the extent that performing the act implicitly asserts that the person entering it has the ability to unlock the phone. This implicit assertion is broken down into three components: (1) the passcode exists, (2) the person producing the passcode possesses or controls it, and (3) the passcode produced is authentic. See id.
[*P79] Defendant argues that the compelled act of producing the passcode to his cell phone is testimonial, as it requires “delving into the contents” of his mind (see Hubbell, 530 U.S. at 43) and revealing facts not already known by the State. Defendant cites Seo v. State, 148 N.E.3d 952, 953 (Ind. 2020), in which the Indiana Supreme Court concluded that compelling the defendant to unlock her phone violated her fifth amendment privilege. The Seo court determined that compelling the production of the passcode conveys that (1) the person knows the passcode, (2) the files on the phone exist, and (3) the person has control over and possession of those files. Id. at 955.
[*P80] Applying Seo here, defendant contends that the compelled act of producing the passcode conveys information to the State that it did not previously know, i.e., that defendant knows the passcode, that files exist on the phone, and that defendant has possession and control of those files. See id. Defendant adds that the act is protected by the fifth amendment privilege unless the State can show it already knew this information under the foregone conclusion exception. We disagree.
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[*P82] We further disagree that compelling defendant to enter the passcode is testimonial because it delves into the contents of defendant’s mind. The appellate court in this case aptly observed that “a cell phone passcode is a string of letters or numbers that an individual habitually enters into his electronic device throughout the day” and it “may be used so habitually that its retrieval is a function of muscle memory rather than an exercise of conscious thought.” 2021 IL App (4th) 210180, ¶ 59, 453 Ill. Dec. 348, 187 N.E.3d 801. We agree that entering a passcode to a cell phone bears no resemblance to the “extensive use of the contents of [the respondent’s] mind” that was required to produce the hundreds of documents in Hubbell. (Internal quotation marks omitted.) Hubbell, 530 U.S. at 43.
[*P83] We find it fitting to compare the phone to a container and the passcode to a key and that entering the phone’s passcode opens the container just as using a key unlocks a door. There are many ways to unlock modern cell phones. Besides entering a passcode using a series of letters and/or numbers, cell phones may also be unlocked biometrically by using one’s fingerprint, facial recognition technology, or retina scans. See State v. Stahl, 206 So. 3d 124, 135 (Fla. Dist. Ct. App. 2016); State v. Andrews, 243 N.J. 447, 234 A.3d 1254, 1274 (N.J. 2020); Thomas A. Drysdale, I Can’t Quite Put My Finger on It, 108 Ill. B.J. 26 (2020).
