The Court of Appeals of Indiana has just reversed a finding of contempt where the defendant was ordered to open her phone for a search of the phone’s contents and she resisted. I believe that this case is required reading if you have a case where prosecutors are seeking an order to make your client open up his’her phone so the contents may be searched.
In this fascinating case, the defendant contacted law enforcement, claiming to be the victim of sexual assault and she named her attacker. She allowed a detective to view her smartphone and he also performed a forensic download of the contents.
After reviewing the phone’s contents, law enforcement decided not to pursue any charges against this names suspect, and instead began to look at the defendant as a suspect for stalking and harassment of this person. Law enforcement suspected that she was using a third party application to change her phone number for calls and text messages to this person.
The State charged her with felony stalking and misdemeanor charges of intimidation, theft and harassment. The police arrested her and took possession of her phone. The State also added additional charges of misdemeanor invasion of privacy.
The State then applied for and was granted a warrant to search Seo’s iPhone which was locked. The State also sought an order compelling her to unlock her iPhone so that police could search it. The order stated that she was compelled to unlock her phone or face contempt of court.
She declined and was immediately found in contempt. The trial court specifically found that the “act of unlocking the phone “does not rise to the level of testimonial self-incrimination that is protected” by the Fifth Amendment or by the Indiana Constitution.
The Defendant filed a motion to stay the contempt order pending appeal which was granted.
In reversing this contempt order, the appellate court started its analysis by stating that “(s)martphones are ubiquitous in modern life” (Citing Riley v. California, U.S. , 134 S. Ct. 2473, 2484, 189 L. Ed. 2d 430 (2014) and that the “amount of personal information contained on a typical smartphone is astounding” (Citing United States v. Wurie, 728 F.3d 1, 7 (1st Cir. 2013)).
As a result, a search of a smartphone inquires into far more than “old-fashioned” information physically contained on paper, revealing the innermost thoughts of the owner. The appellate court stated that a search of a smartphone without limitations has enormous privacy implications (Citing, United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009)).
The appellate court held that this order with no limits violated the Fifth Amendment and remanded the case back to the trial court with specific guidelines as to the reasonable specificity that prosecutors should show concerning the information sought in such an instance.
The court noted with approval a law review note that “Encryption is the process of concealing information, and all such systems have several similar characteristics. At its most basic level, encryption involves transforming information or data, called “plaintext,” into a coded form that cannot be understood by outsiders. The process is performed according to the encryption algorithm, a set of rules that governs how the plaintext is transformed. While this can be as simple as substituting each letter in a message with a corresponding number, modern encryption algorithms often consist of a complex series of mathematical functions. Regardless of the manner of encryption, the result is that the plaintext is made unintelligible to outsiders” (Citing, Andrew J. Ungberg, Protecting Privacy Through a Responsible Decryption Policy, 22 Harv. J.L. & Tech. 537, 540 (2009).
The court looked to the Apple Iphone 7 plus literature to find that this phone meets the above standard of “encyption.” “(E)ach time a user unlocks her phone, she is enabling the phone to recreate all of the information on the phone, taking what was once indistinguishable from random noise and deciphering it into the requested data” (Citing, Jeffrey Kiok, Missing the Metaphor: Compulsory Decryption and the Fifth Amendment, 24 B.U. Pub. Int. L.J. 53, 59 (2015).
The nature of the encryption requires the cooperation of the Iphone’s owner. This order compelling the owner to unlock the phone to be a question of first impression in Indiana. After discussing the history of the passage of the Fifth Amendment, the appellate court looked to case law defining the nature and scope of the Fifth Amendment, including Boyd v. United States, 116 U.S. 616, 633, 6 S. Ct. 524, 29 L. Ed. 746 (1886); Fisher v. United States, 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976); Schmerber v. California, 384 U.S. 757, 763-64, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). The court noted that the Schmerber Court cited Boyd when holding that “[i]t is clear that the protection of the [Fifth Amendment] privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers.”
The court also discussed the U.S. Supreme Court case of Doe II which considered the legality of an order compelling the target of a grand jury investigation to authorize foreign banks to disclose records of his accounts. “The majority famously noted”, in response to a dissent from Stevens, that “(w)e do not disagree with the dissent that ‘[t]he expression of the contents of an individual’s mind’ is testimonial communication for purposes of the Fifth Amendment. We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like “be[ing] forced to surrender a key to a strongbox containing incriminating documents” than it is like “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.”
After discussing these and a number of other cases, the appellate court turned to the defendant’s argument that her revelation of the passcode is testimonial in nature. The court states that it could not ignore the “privacy/confidentiality implications that compelled revelation of a smartphone passcode would inevitably have based on the extraordinary quantitative and qualitative differences between the amount of digital information stored on a smartphone compared to traditional paper-based media.”
The court agreed because “the very nature of a passcode supports the conclusion that it is the product of one’s mind.” The court therefore agreed that compelling her to input the code, even without telling the State what it is, is testimonial.
to reveal her passcode is the very definition of compelling her to reveal the contents of her mind. Accordingly, we hold that compelling Seo to unlock her phone in any manner is testimonial. They also held that what is being compelled here is “not merely the passcode. As described above, compelling (defendant) to enter her password forces her to effectively re-create the entire contents of her phone. In the words of the Third Circuit Court of Appeals, the State must be able to describe with reasonable particularity the digital files it seeks to compel.” (Citing, Apple MacPro Computer, 851 F.3d at 247 (cf Hubbell, 530 U.S. at 30)).
Because the State has not described with any particularity the digital information it seeks to access, the requirements to overcome Fifth Amendment protections were not met in this case. The case was remanded so the State has the opportunity to do so.
The connection between Carpenter and this Fifth Amendment issue lies mostly in the dissent. The dissent states that the majority is making conclusions about new technology too swiftly, thus risking embarrassment to the future. The dissent believes that, just as Carpenter’s holding is narrow, this Court’s holding should also be narrow.
The case is Seo v. State, 2018 Ind. App. LEXIS 290, 2018 WL 4040295 (Ind. App. Ct.) (August 21).