Seo v. State, No. 18S-CR-595, __ N.E.3d __ (Ind., Jun. 23, 2020).

Rush, C.J.

When Katelin Seo was placed under arrest, law enforcement took her iPhone believing it contained incriminating evidence. A detective got a warrant to search the smartphone, but he couldn’t get into the locked device without Seo’s assistance. So the detective got a second warrant that ordered Seo to unlock her iPhone. She refused, and the trial court held her in contempt.

We reverse the contempt order. Forcing Seo to unlock her iPhone would violate her Fifth Amendment right against self-incrimination. By unlocking her smartphone, Seo would provide law enforcement with information it does not already know, which the State could then use in its prosecution against her. The Fifth Amendment’s protection from compelled self-incrimination prohibits this result. We thus reverse and remand.

Here, Seo argues that the State, by forcing her to unlock her iPhone for law enforcement, is requiring her to “assist in the prosecution of her own criminal case” and thus violating her right against self-incrimination. The State disagrees, claiming it already knows the implicit factual information Seo would convey by unlocking her iPhone—namely, that she “knows the password and thus has control and use of the phone.” We agree with Seo. The compelled production of an unlocked smartphone is testimonial and entitled to Fifth Amendment protection— unless the State demonstrates the foregone conclusion exception applies. Here, the State has failed to make that showing; and this case also highlights concerns with extending the limited exception to this context.

I. The act of producing an unlocked smartphone communicates a breadth of factual information.

Giving law enforcement an unlocked smartphone communicates to the State, at a minimum, that (1) the suspect knows the password; (2) the files on the device exist; and (3) the suspect possesses those files. This broad spectrum of communication is entitled to Fifth Amendment protection unless the State can show that it already knows this information, making it a foregone conclusion. We make these determinations after carefully reviewing the U.S. Supreme Court precedent that has created and evaluated both the act of production doctrine and its accompanying foregone conclusion exception.

[A] suspect surrendering an unlocked smartphone implicitly communicates, at a minimum, three things: (1) the suspect knows the password; (2) the files on the device exist; and (3) the suspect possessed those files. And, unless the State can show it already knows this information, the communicative aspects of the production fall within the Fifth Amendment’s protection. Otherwise, the suspect’s compelled act will communicate to the State information it did not previously know— precisely what the privilege against self-incrimination is designed to prevent. See Couch v. United States, 409 U.S. 322, 328 (1973). This leads us to the following inquiry: has the State shown that (1) Seo knows the password for her iPhone; (2) the files on the device exist; and (3) she possessed those files?

II. The foregone conclusion exception does not apply.

As discussed above, compelling Seo to unlock her iPhone would implicitly communicate certain facts to the State. And for those communicative aspects to be rendered nontestimonial, the State must establish that it already knows those facts.

Even if we assume the State has shown that Seo knows the password to her smartphone, the State has failed to demonstrate that any particular files on the device exist or that she possessed those files. Detective Inglis simply confirmed that he would be fishing for “incriminating evidence” from the device.

In sum, law enforcement sought to compel Seo to unlock her iPhone so that it could then scour the device for incriminating information. And Seo’s act of producing her unlocked smartphone would provide the State with information that it does not already know. But, as we’ve explained above, the Fifth Amendment’s privilege against compulsory self-incrimination prohibits such a result. Indeed, to hold otherwise would sound “the death knell for a constitutional protection against compelled self-incrimination in the digital age.”

..

Though the foregone conclusion exception does not apply to these facts, this case underscores several reasons why the narrow exception may be generally unsuitable to the compelled production of any unlocked smartphone. We discuss three concerns below.

III. This case highlights concerns with extending the limited foregone conclusion exception to the compelled production of an unlocked smartphone.

Extending the foregone conclusion exception to the compelled production of an unlocked smartphone is concerning for three reasons: such an expansion (1) fails to account for the unique ubiquity and capacity of smartphones; (2) may prove unworkable; and (3) runs counter to U.S. Supreme Court precedent.

It is not surprising that courts to recently address this issue—how the Fifth Amendment applies to the compelled production of unlocked electronic devices—have either declined to extend the foregone conclusion exception or have not mentioned it at all. 7 Not only was the exception crafted for a vastly different context, but extending it further would mean expanding a decades-old and narrowly defined legal exception to dynamically developing technology that was in its infancy just a decade ago. And it would also result in narrowing a constitutional right. Yet, while we have identified three concerns with extending the foregone conclusion exception to this context, we do not need to make a general pronouncement on its validity because it simply does not apply here. At the same time, we emphasize that there are several ways law enforcement can procure evidence from smartphones without infringing on an individual’s Fifth Amendment rights. For example, officers could try to obtain information from third parties under the Stored Communications Act. See 18 U.S.C. 121 §§ 2701–2713 (2018). Alternatively, two companies—Cellebrite and Grayshift—offer law enforcement agencies affordable products that provide access to a locked smartphone. See generally, e.g., United States v. Chavez-Lopez, 767 F. App’x 431, 433–34 (4th Cir. 2019). Or officers could seek an order compelling the smartphone’s manufacturer to help bypass the lock screen. See In re XXX, Inc., No. 14 Mag. 2258, 2014 WL 5510865 (S.D.N.Y. Oct. 31, 2014). And if law enforcement wants to get into a smartphone for reasons other than prosecution, they can offer immunity to the device’s owner. See Doe I, 465 U.S. at 614–15. But the State cannot fish for incriminating evidence by forcing Seo to give unfettered access to her iPhone when it has failed to show that any files on Seo’s smartphone exist or that she possessed those files.

Nearly a century ago, U.S. Supreme Court Justice Louis Brandeis cautioned, “Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.” Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis, J., dissenting). That day has come. And to allow the State, on these facts, to force Seo to unlock her iPhone for law enforcement would tip the scales too far in the State’s favor, resulting in a seismic erosion of the Fifth Amendment’s privilege against self-incrimination. This we will not do.

Conclusion

Forcing Seo to unlock her iPhone for law enforcement would violate her Fifth Amendment right against self-incrimination. We thus reverse the trial court’s order finding Seo in contempt and instruct the court to dismiss the citation.

David and Goff, JJ., concur.

Massa, J., dissents with separate opinion in which Slaughter, J., joins in part.

Slaughter, J., dissents with separate opinion

Massa, J., dissenting.

I respectfully dissent from the Court’s opinion deciding the merits of this case because it was mooted when the underlying criminal case was dismissed. And this now-moot case shouldn’t be resolved under our “great public interest” exception because doing so could—in violation of the core principles of federalism—leave our Court as the final arbiter of our nation’s fundamental law.

Although the issue in this case is clearly one of great public importance and will surely recur with other defendants, it will not evade review. Seo entered into a global agreement resolving the case tied to her contempt order before our Court of Appeals issued its opinion reversing the order holding her in contempt. But her resolution of the case before appellate review is the outlier, not the norm. Cf. Hartman v. State, 988 N.E.2d 785 (Ind. 2013) (reversing under the Fifth Amendment—and in an interlocutory appeal—a trial court’s denial of a defendant’s motion to suppress). Perhaps we still exercise our lesser standard in cases like Lawrance involving only questions of Indiana law. Perhaps not. See Wallace v. City of Indianapolis, 40 Ind. 287, 289 (1872) (“It is not our duty to decide mere legal questions, when neither party can derive any legal benefit from such decision, and we have too many real questions before us, requiring our time and labor, to allow us to write mere speculative opinions to gratify ourselves or others, and in which no one has any legal right or interest depending.”). But that is a question for another day.

Instead, we must ask whether this Court should use a federally moot case to decide an important question of federal constitutional law. The answer must be no.

As Justice Jackson so famously proclaimed about the U.S. Supreme Court, “[w]e are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) (emphasis added). “What, indeed, might then have been only prophecy”—that our Court now firmly establishes that it will reject that finality by deciding cases that can bypass the revising authority of the U.S. Supreme Court on important questions of federal constitutional law—“has now become fact.” Martin, 14 U.S. (1 Wheat.) at 348. By deciding this case, the Court’s message is crystal clear: it will anoint itself, at times, as the final adjudicator of federal law. To this, I cannot assent.

And as for the adjudication of that federal law, this Fifth Amendment question is the closest of close calls. Courts around the country split, falling into two camps. See generally Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, 97 Tex. L. Rev. 767 (2019); Laurent Sacharoff, What Am I Really Saying When I Open My Smartphone? A Response to Orin S. Kerr, 97 Tex. L. Rev. Online 63 (2019). Reasonable minds can disagree; indeed, many have. Our Court’s decision on the merits today is thus not unreasonable, though I would come out the other way for the reasons further explained by Professor Kerr….The Supreme Court must, at some point, decide how to apply its modern Fifth Amendment jurisprudence to the compelled unlocking of a smartphone or, perhaps, return to Boyd. In the meantime, that uncertainty further counsels that we dismiss this appeal as moot.  Seo, slip op. at 9, n.5 (Massa, J., dissenting).

Slaughter, J., joins in part.

Slaughter, J., dissenting.

I respectfully dissent. Although I agree with Justice Massa that this case is moot, I write separately because I disagree that a mootness exception justifies our reaching the merits of Seo’s constitutional claim. In my view, our prevailing mootness standard does not conform to our constitution’s mandate of separate governmental powers. In lieu of our prevailing standard, I would adopt the federal standard because, consistent with Article 3, Section 1 of our state constitution, it requires that courts decide only actual disputes. Applying this standard here, I would find Seo’s appeal moot and not reach the merits of her Fifth Amendment claim

I would clarify any ambiguity in our appellate precedent and hold that any mootness doctrine consistent with our state constitution’s mandate of separate governmental powers requires an actual dispute.

Not only does our mootness doctrine lack any tie to our essential, though limited, constitutional role, but how we apply our justiciability principles has proved unpredictable in practice. Just last month, we held unanimously that the governor could not intervene in a pending disciplinary action involving the attorney general. Matter of Hill, 144 N.E.3d 200 (Ind. 2020). The governor asked us to answer the timely, pressing question whether our thirty-day suspension of the attorney general’s law license created a vacancy in the office that triggered the governor’s legal duty to fill it. No one disputed that the governor’s motion raised an issue of “great public importance”. Yet we denied intervention —correctly, in my view—because, among other reasons, we do not issue advisory opinions and the governor had no legally cognizable interest in the underlying case. In other words, the proposed intervention lacked the criteria for justiciability, despite the importance of the issue raised.

Even if I agreed that Seo has raised a “novel, important issue of great public importance that will surely recur”, that standard cannot be reconciled with the actual-injury requirement implicit in our constitution’s separation-of-powers command. Instead, I would adopt “capable of repetition, yet evading review” as our mootness standard. Applying it here, I would hold that Seo’s Fifth Amendment claim is moot and not reach the merits.

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