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People v. Spicer, 2019 IL App (3d) 170814 (March). Episode 602 (Duration 11:56) Can the prosecution compel you to give up your phone password? Charges Defendant was arrested for unlawful possession of a controlled substance and later also charged with knowingly possessing cocaine with the intent to distribute. Drug Dog Alert Defendant was a passenger in a vehicle that was pulled over for a traffic stop. A drug dog alerted on the vehicle. The officers searched the vehicle, where they found a prescription pill bottle containing cocaine inside a brown leather bag near where defendant was sitting. The bag also contained: A scale with Suspected cocaine residue A box containing 20 plastic baggies. The Phone When defendant was arrested police found a cell phone on his person. Defendant refused to provide the passcode to unlock it. Warrant & Motion To Compel Try as the might police could not access the contents of the phone. They sought and received a search warrant for the phone. However, defendant would not provide the passcode and the State moved to compel the information. Issue The State argues that the fifth amendment’s privilege against self incrimination does not protect Defendant from being compelled to provide the passcode to unlock his legally seized cell phone and submits the trial court erred in denying its motion to compel. Fifth Amendment A person cannot be compelled to testify against himself in a criminal case. U.S. Const., amend. V. The fifth amendment applies when the defendant is compelled to make a testimonial communication that incriminates himself. Fisher v. United States, 425 U.S. 391, 408 (1976). For the fifth amendment privilege to apply, “a communication must be testimonial, incriminating, and compelled.” People v. Haleas, 404 Ill. App. 3d 668, 672 (2010) (quoting Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 189 (2004)). An act of production is testimonial when the government compels the defendant “to make extensive use of ‘the contents of his own mind’ ” to communicate a statement of fact. United States v. Hubbell, 530 U.S. 27, 43 (2000). See also voluntary confessions in Illinois. The Foregone Conclusion Doctrine The foregone conclusion doctrine is an exception to the fifth amendment privilege. Per the doctrine, where the existence, location and authenticity of the evidence is a foregone conclusion, that is, it “adds little or nothing to the sum total of the Government’s information,” the fifth amendment does not protect the act of production. The exception applies when the State demonstrates with “reasonable particularity” that when it sought the act of production, the State knew the evidence existed, the evidence was in the defendant’s possession and it was authentic. United States v. Greenfield, 831 F.3d 106, 116 (2d Cir. 2016). See also The Exclusionary Rule. Fisher v. United States In this case the government wanted defendant’s tax records which he took from his accountant and gave to his lawyer. See Fisher v. United States, 425 U.S. 391 (1976). The court said… It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment. The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client…The existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he, in fact, has the papers. Under these circumstances, by enforcement of the summons, ‘no constitutional rights are touched. The question is not of testimony, but of surrender.” Fisher v. United States, 425 U.S. 391, 425 (1976); quoting In re Harris, 221 U. S. 274, 221 U. S. 279 (1911). See Also Matter of Harris In this case the defendant was in bankruptcy and he was ordered to tender his books to the receiver. He refused claiming “the fifth” and the court said… But no constitutional rights are touched. The question is not of testimony, but of surrender, not of compelling the bankrupt to be a witness against himself in a criminal case, present or future, but of compelling him to yield possession of property that he no longer is entitled to keep. If a trustee had been appointed, the title to the books would have vested in him by the express terms of § 70, and the bankrupt could not have withheld possession of what he no longer owned on the ground that otherwise he might be punished. That is one of the misfortunes of bankruptcy if it follows crime. The right not to be compelled to be a witness against oneself is not a right to appropriate property that may tell one’s story.” Matter of Harris, 221 U.S. 274 (1911). Is It Testimonial? Before this case, Illinois courts have not decided whether compelling a defendant to provide his passcode is testimonial. Courts from foreign jurisdictions are split on the issue. G.A.Q.L. v. State (Florida case) This opinion relied on G.A.Q.L. v. State, 257 So.3d 1058 (Fla. Dist. Ct. App., Oct. 24, 2018) and found it to be persuasive and well reasoned. In G.A.Q.L., the State of Florida sought to compel the driver involved in a fatal car accident to reveal the passcodes to access his phone and to his iTunes account which was needed to update the phone. The reviewing court determined that forcing a person to reveal his passcode was testimonial and could be violative of the person’s fifth amendment rights. The court reasoned that forcing a person to reveal a passcode results in “implied factual statements” and necessitates use of the mind not to obtain the decryption for its own sake, but for the purpose of obtaining the files protected by the encryption. The State was not seeking the passcode itself but the information unlocked by the passcode, the court found the defendant was required to use his mind and demonstrate the factual basis that he could access his phone. Accordingly, the court considered the requested information to be testimonial and protected by the fifth amendment. Foregone Conclusion Doctrine Does Not Apply To This Case Here, the State is not seeking the passcode per se but the information it will decrypt. The cases that declare the passcode to be a nontestimonial communication operate under a finding that a passcode merely reveals information that is a foregone conclusion. Thus, the exception to the fifth amendment privilege applies. So too, in this case the focus is not on the passcode but the information the passcode protects. The State claims it sustained its burden of proving with reasonable particularity that it knew the passcode existed, that Defendant knew the passcode and that it would be authenticated by entering it into Defendant’s phone. However, what the State actually needed to establish with reasonable particularity was the contents of the phone, which it did not do. This Is A Fishing Expedition The State does not know what information might be on Defendant’s phone but surmises that cell phones are often used in unlawful drug distribution and such information would be available on Defendant’s phone. The State has not provided a particularized description of that information or even evidence that any useful information exists on the phone. The State does not identify any documents or specific information it seeks with reasonable particularity. The State is engaging in a fishing expedition and the foregone conclusion exception does not apply here. Forgone Conclusion Doctrine Itself Not Met Here Even if we were to conclude that the foregone conclusion exception properly focuses on the passcode, the State did not and could not satisfy the requirements for the foregone conclusion exception. While the State is aware that the passcode existed and that Defendant knew it, the State could not know that the passcode was authentic until after it was used to decrypt Defendant’s phone. Moreover, the production of Defendant’s passcode would provide the State more information than what it already knew. Therefore, the foregone conclusion does not apply. Holding Although the focus of the foregone conclusion is on the passcode, in our view, it properly should be placed on the information the State is ultimately seeking, which is not the passcode but everything on Defendant’s phone. We find that requiring Defendant to provide his passcode implicates his fifth amendment right against self-incrimination and the trial court did not err in denying the State’s motion to compel. For the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed.