Living in the 21st century, new technologies are created regularly that offer services and experiences virtually rather than in person. With this constant evolution into a digital world, Federal and State Courts are presented with the struggle of how to interpret a Constitution hundreds of years old, and to apply it to present day innovations.  As technology advances and our use upon it becomes critical to daily life, the protection of our privacy interests in such information is crucial to maintaining a democratic state. On October 16, 2019, an Oregon court handed a blow to the privacy of all those people living within its territory. In Oregon v. Pittman, the Oregon Court of Appeals held that a Defendant may be court-ordered to unlock his cellphone for police, who had a warrant to search the phone, but were unable to crack the passcode themselves. The Court found that the order was consistent with both the Oregon State and Federal Constitutional prohibitions against self-incrimination.

The Court held in stages, as often they do, that first: the act of entering the code was testimonial and therefore implicated the protections against self-incrimination. Notwithstanding that, the Court still held that the Defendant can be court-ordered to enter his passcode to unlock the phone because the Defendant knew the passcode, and thus the forgone conclusion doctrine applied¹.

According to the broad language of the Pittman decision, any litigant in a civil or criminal case could potentially be subject to such a Court order, but in Pittman the Defendant had been in a car crash, and hospital employees found drug contraband in the Defendant’s purse. When they handed it over to police, the Officers immediately began a DUI investigation and obtained a warrant to search the phone in the purse².

The Officers were unable to get access to the cellphone without the passcode and they requested the Trial Judge order the Defendant to provide the passcode. After a hearing, where the Defendant never denied knowing the code, the Judge ordered the Defendant to enter the passcode. The Defendant entered an incorrect passcode twice and the Judge held the Defendant in jail for contempt. This appeal followed.

The first issue that the Court had to address is what is “testimony,” because the federal Constitutional protections against self-incrimination only apply when forcing a defendant to provide “testimony.” Obviously, forcing someone to verbally confess to a crime, through interrogation, would be forcing them to provide “testimony.” But, could there also be some actions, which although non-verbal, that provide some sort of communication, or “speak” in a different way, as to implicate the 5th Amendment protections? Both State and Federal Courts have indicated that yes, some physical actions are so communicative in nature that they deserve to be protected by the 5th Amendment as well. The Court in Pittman found that yes, the action here of entering a passcode into an iPhone is testimony because by entering the passcode, the person is communicating that they have enough dominion and control over the phone to know the password, if not indicating altogether that the phone is theirs. So, the action of entering the code is communicative, and therefore implicates the 5th Amendment.

However, the Court then stated that in determining whether the Defendant could be forced via court order to provide his passcode, that he could be ordered to do that testimonial act if the “foregone conclusion” doctrine applied.  Generally, a foregone conclusion means something that has already been decided or something that is known to be certain. The legal doctrine of a foregone conclusion has not been explored much in Arizona, but is an evolving area of the law nationwide. The forgone conclusion argument is based upon two federal Supreme Court cases, Fisher and Hubbell. In those cases, the issue was whether the Defendants were required to produce certain documents in response to the State’s requests, or whether such compelled production violated the 5th Amendment. The Supreme Court drew a distinction and allowed the mandatory production when the State was already aware of the documents’ existence, and thereby forcing the Defendant to turn them over would reveal nothing communicative about the documents. Hence, the documents existence were a “foregone conclusion.” That was Fisher. In Hubbell, the Court found that production would be unconstitutional where the subpoena was much broader in scope, and production by the Defendant would require some communication as to the “existence, location, or authenticity” of the documents.

In Pittman, the Court found that the 5th Amendment did apply, but that the 5th Amendment protections were satisfied because the defendant’s knowledge of the iPhone password was a foregone conclusion. The Oregon Court found that the facts of this case were more like Fisher, rather than Hubbell. The Pittman Court found that the main difference between the cases was that the subpoena in Hubbell was much broader and therefore required the Defendant to use his own mental intuition as to which, if any, documents fit the description of what the State was seeking. Said differently, the Defendant’s inclusion of the documents in response to the subpoena communicates that the Defendant believes that the papers are those described in the subpoena- i.e. an admission of guilt some might say. Thus, responding to the subpoena would in essence be the same as submitting to interrogation by the State and admitting the existence of supporting documentation for the allegations against the Defendant. In contrast, in Fisher, the government already knew of the existence and location of supporting documentation, but just needed them provided to the State. The Pittman Court held that because the cellphone was already in possession of the State, and the Defendant’s knowledge of the iPhone password was a forgone conclusion, the 5th Amendment was satisfied.

Interestingly, these issues present a crossroads of 4th Amendment, which protects content, and 5th Amendment, which protects the process of obtaining information. It is important to remember that unless there was a warrant for the content on the phone, that the Defendant could not have been ordered to enter his passcode. So, when analyzing a cellphone or computer case, at least two constitutional provisions are involved.

It is likely only a matter of time until we could see a case like this in Arizona. Depending on the facts of that case, the Court may use the same framework as Pittman did to analyze it: surrender (government already knows about the existence) v. production (government is uncertain of existence). While it is always important not to submit to questioning by law enforcement, given the above it is especially pertinent not to admit to knowledge of the password of a phone or computer. If you admit such knowledge, the Court could order you to provide it and hold you in contempt unless you do so. This decision emphasizes the importance of never communicating with the police, even information that you think might not be incriminating. Had the Defendant never admitted to knowing the passcode to the phone, this case might have turned out very differently.

Every case decided previously, provides guidance as to how arguments can be improved upon. In Arizona, an attorney might argue that even if federal constitutional principles are not violated by such a court order, the application of the foregone conclusion doctrine here might violate the Arizona Constitution. Under the United State Constitution, the specific language of 5th Amendment is that a defendant cannot be compelled in any criminal case “to be a witness against himself.”  Under the Arizona Constitution, a defendant cannot be compelled “to give evidence against himself.” In constitutional interpretation, every word matters, and an argument could be made that the foregone conclusion doctrine does not apply because the founders of our State Constitution intended our privileges doctrine to be much broader by the specific inclusion of “evidence” rather than using the term “witness.”  Evidence seems to imply a wide variety of information, while being a witness against yourself seems to be a much narrower principle. Thus, all hope may not be lost should Arizona courts get any ideas…

1 It should be noted however, that the Supreme Court case law relied upon by the Court in Pittman seems to stand for the proposition that if the foregone conclusion doctrine applies, it means that the information is non-testimonial and therefore the 5th Amendment privilege does not apply.

2 Arguably, Side-note: the magistrate should not have granted a warrant to search an iPhone in such a case, it seems extremely overbroad and reaching; the evidence in the defendant’s purse and likely in her blood seems to be sufficient for prosecution and the Judge should not have allowed such a fishing expedition into Defendant’s privacy. But that is a blog post for another day.