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State v. Pittman

Court of Appeals of Oregon

October 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
CATRICE PITTMAN, Defendant-Appellant.

          Argued and submitted July 30, 2018

          Marion County Circuit Court 16CN03799 Tracy A. Prall, Judge.

          Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: During a criminal investigation, the police seized a smart-phone from defendant's purse and subsequently obtained a warrant to search its contents. The police were unable to access the contents, however, without the smartphone's passcode. The state moved to compel defendant to disclose the smartphone's passcode, and, after hearing argument from the parties, the trial court granted the motion. Based on that ruling, the court ordered defendant to enter the correct passcode into the smartphone. When defendant failed to do so (twice entering an incorrect passcode), the court held her in contempt. On appeal of the contempt judgment, defendant argues that ordering her to enter the passcode into the smartphone violated Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution, both of which prevent the government from compelling a person to testify against herself in a criminal prosecution. Held: The act of entering a passcode into a smartphone is testimonial in nature and therefore subject to protection under Article I, section 12, and the Fifth Amendment. And a court order constitutes [300 Or.App. 148] compulsion. However, applying the "foregone conclusion" doctrine recognized in Fisher v. United States, 425 U.S. 391, 411, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976), the trial court did not err in this case.

          [300 Or.App. 149] AOYAGI, J.

         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.

         FACTS

         Defendant was the suspected driver in a single-vehicle accident in which a car struck a tree. At the hospital, hospital employees found white powder, drug paraphernalia, and cash on her person, which they gave to the police. Defendant also had a purse with her at the hospital; the purse contained an iPhone.

         Based on evidence collected, the police suspected that defendant had operated a vehicle under the influence [300 Or.App. 150] of intoxicants, operated a vehicle while distracted, delivered methamphetamine, and/or conspired to deliver metham-phetamine. As relevant here, the police obtained a warrant to search the iPhone in defendant's purse. The police soon determined that they could not access the iPhone without a passcode. According to the police department's technological investigator, it would take "approximately a thousand years" using "the fastest computer we have access to" to access the information in the iPhone without the passcode. Further, the investigator testified, an iPhone can be set to "delete itself after 10 incorrect passcode entries, posing an additional risk.

         The state moved to compel defendant to disclose the iPhone's passcode. Anticipating a constitutional challenge, the state asserted that, to the extent that disclosing a pass-code is a testimonial act, in that it "inferentially communicatee that [defendant] ha[s] control over-or at least access to-the phone," the trial court nonetheless could compel the disclosure, because it was already a foregone conclusion that defendant had control over the phone. As discussed later, "foregone conclusion" is a term of art from Fifth Amendment jurisprudence. Defendant opposed the state's motion, arguing, first, that the warrant was overbroad and, second, that compelling her to disclose the passcode to the iPhone would violate Article I, section 12, and the Fifth Amendment. On the latter issue, defendant focused on the act being testimonial in nature and did not directly address the "foregone conclusion" issue. In reply, the state defended the warrant, and it reiterated its "foregone conclusion" argument in more detail.

         The trial court held a hearing on the state's motion. The state argued, consistently with its briefing, that it was a foregone conclusion that defendant knew the passcode and had access to the iPhone and that compelling her to disclose the passcode therefore would not violate Article I, section 12, or the Fifth Amendment. In response, defendant argued that the foregone conclusion doctrine did not apply because the state failed to establish that the "desired evidence" actually existed on the iPhone, that defendant was in control of the iPhone and its passcode, and that the "desired evidence" on the iPhone was authentic. Defendant asserted [300 Or.App. 151] that the state had to satisfy all three requirements for the doctrine to apply.[1] The state argued in rebuttal that it had established that defendant was in control of the iPhone and passcode and that requiring it to prove what was on the iPhone before searching it would "put[] the cart before the horse." In the state's view, there was no need for it to prove what was on the iPhone, beyond meeting the probable-cause requirements for the warrant.

         After the hearing, the trial court issued a letter opinion, ruling in the state's favor on the "foregone conclusion" issue and also ruling, subject to certain limitations, that the warrant was not overbroad. The trial court began its analysis by making several statements about "probable cause," including that there was "probable cause to believe that defendant has knowledge of the passcode and contents of the iPhone." The court then described its understanding of the foregone conclusion doctrine in a manner consistent with defendant's argument-and inconsistent with the state's argument-but nonetheless agreed with the state as to the result, i.e., that ordering defendant to disclose the passcode would not violate Article I, section 12, or the Fifth Amendment:

"The foregone conclusion exception applies when the state can prove its independent knowledge of three elements: the documents' existence, the documents' authenticity, and respondent's possession or control of the document. The court finds, based on the evidence found and Officer Boyce's training and experience, that it is a foregone conclusion that the iPhone will contain evidence of the crimes of unlawful delivery of a controlled substance and conspiracy to commit delivery of a controlled substance."

         On the same day that the trial court issued its letter opinion, the parties appeared before the court, and the court orally ordered defendant to enter the passcode into [300 Or.App. 152] the iPhone. An officer observed defendant enter "123456," which failed to unlock the iPhone. The court again ordered defendant "to enter the appropriate code," warning her that, "[i]f you enter a wrong code again, you would be in contempt of court." Defendant again entered "123456," which again failed. The court found defendant in contempt of court and sentenced her to 30 days in jail.

         Defendant appeals the contempt judgment, challenging both the underlying order requiring her to disclose the passcode and the contempt judgment itself, which the state agrees is permissible under the circumstances of this case.[2] Defendant raises two assignments of error. First, she argues that the trial court erred in ordering her to enter the passcode into the iPhone, because it violated her rights under Article I, section 12, and the Fifth Amendment. We address that issue below. Second, she argues that the trial court plainly erred in holding her in contempt, because the evidence was insufficient ...


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