People v. Sneed

Decision Date18 November 2021
Docket Number4-21-0180
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Keiron K. SNEED, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Daniel Markwell, State's Attorney, of Clinton (Patrick Delfino, David J. Robinson, David E. Mannchen, and James C. Majors, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

James E. Chadd, Catherine K. Hart, and Joshua Scanlon, of State Appellate Defender's Office, of Springfield, for appellee.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In February 2021, the State charged defendant, Keiron K. Sneed, with two counts of forgery ( 720 ILCS 5/17-3(a)(1) (West 2020)). The police later sought and obtained a search warrant for defendant's cell phone but were unable to execute the search because the cell phone was passcode-protected and defendant declined to provide the passcode. The State filed a "Motion to Compel Production of Cellular Phone Passcode," but the trial court denied that motion. The court ruled that the fifth amendment privilege against self-incrimination prevented defendant from being compelled to provide the passcode to his cell phone.

¶ 2 The State appeals, arguing two reasons why the trial court erred by concluding that the fifth amendment protected defendant from being compelled to provide access to his lawfully seized cell phone: (1) compelling defendant to provide access to his cell phone is neither testimonial nor incriminating and (2) the foregone conclusion exception to the fifth amendment applies. Because we agree with both of the State's arguments, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

¶ 3 I. BACKGROUND
¶ 4 A. The Charges

¶ 5 In February 2021, the State charged defendant by information with two counts of forgery (id. ). The charging documents alleged defendant made two false paychecks from Dairy Queen with the intent to defraud Dairy Queen and "financial institutions." Defendant and his wife, Allora Spurling, were both arrested in connection with the false paychecks. When they were arrested, the police seized two cell phones from their persons—one from defendant and one from Spurling.

¶ 6 B. The Search Warrant

¶ 7 In March 2021, Detective Todd Ummel of the Clinton Police Department applied for a search warrant to search the contents of both phones. He described the items to be searched as (1) a "Samsung Galaxy A01" "belonging to [defendant]" and (2) a "Samsung Galaxy J2" "belonging to [Spurling.]"

¶ 8 In his complaint for search warrant, Ummel attested to the following information. In January 2021, Sara Schlesinger, a bookkeeper for Dairy Queen in Clinton, Illinois, reported to the Clinton Police Department that she "came across" a paycheck in the amount of $274.33, payable to defendant. Defendant had never been an employee of Dairy Queen, but his wife—Spurling—was a current employee. Schlesinger reported that the paycheck had been cashed with Citibank via mobile deposit (i.e. , through the use of a cell phone). Schlesinger provided Clinton police officer Alex Lovell with a text message Spurling sent to Schlesinger that stated as follows:

"I didn't know anything about it. I guess it wasn't meant to happen for real. It [sic ] was being curious and he didn't think it would actually work cuz it wasn't real. He never got the money. *** I'm upset and embarrassed. And p***. But please know I had no clue about it[.] He doesn't have a card for that bank or anything. Is there a way to call the bank and get the money back cuz he didn't get it[.]"

Schlesinger also provided Ummel with a second paycheck she discovered, payable to defendant in the amount of $423.22. This check was also deposited by mobile deposit. Schlesinger confirmed the amounts written on the paychecks were taken out of Dairy Queen's bank account.

¶ 9 Ummel also stated in his complaint for the search warrant that he sought to search defendant's phone to "confirm whom [sic ] deposited the forged paycheck and to determine if any additional forged paychecks have been deposited." He further sought to "confirm that the text messages from [Spurling] came from her phone."

¶ 10 The trial court issued a search warrant granting Ummel permission to search both phones.

¶ 11 C. The State's Motion to Compel

¶ 12 A few days later, the State filed a "Motion to Compel Production of Cellular Phone Passcode" in defendant's case, which requested an order "to compel the entry of a passcode into a cellular device." The motion alleged that the police were prevented from executing the search warrant because both phones were passcode-protected. (We note that this appeal pertains only to defendant and access to the cell phone identified as his in the search warrant.)

¶ 13 Later that same month, the trial court conducted an evidentiary hearing on the State's motion, at which Ummel was the sole witness. He testified that the Clinton Police Department was contacted by "[m]anagement" at Dairy Queen "[r]egarding fraudulent checks that were cashed on the account of Dairy Queen." Defendant had never been employed at Dairy Queen, but defendant's wife was an employee at the time the checks were cashed. Ummel testified that both checks were cashed via mobile electronic deposit from a cellular phone. Ummel explained that mobile deposit involves taking a photograph of a check and sending it electronically to a financial institution for deposit.

¶ 14 Ummel further testified that he observed pictures of the two cashed checks. (The record does not state where Ummel viewed the photographs, who showed him the photographs, or whether they were physical or electronic photographs.) They were payable to defendant and endorsed with the signature "Keiron Sneed." Ummel also stated that Schlesinger provided him with text messages in which Spurling admitted defendant cashed the checks. Schlesinger also provided Ummel with bank records that showed the funds were missing from the Dairy Queen account.

¶ 15 Ummel also testified that he obtained the search warrant to search defendant's and Spurling's cell phones but discovered the phones were locked by security passcodes. He stated defendant and Spurling would not provide him with the passcodes. The Clinton police did not have the technology to "crack" the phone, and the agency that assisted him in the past—the Illinois State Police—would not assist unless his investigation involved narcotics.

¶ 16 Ummel further testified that, following defendant's arrest, defendant filled out a bond form and provided a phone number that matched the phone that was seized from him. Ummel testified he was "hoping to find *** that a photograph exists on that device from submitting the mobile deposit."

¶ 17 D. The Trial Court's Ruling

¶ 18 The trial court denied the State's motion. The court first noted that the fifth amendment privilege against self-incrimination applies only when an accused is compelled to make a testimonial communication that is incriminating. But then, relying on People v. Spicer , 2019 IL App (3d) 170814, 430 Ill.Dec. 268, 125 N.E.3d 1286, the court found that the act of producing a cell phone passcode is testimonial.

¶ 19 The trial court then examined whether the foregone conclusion doctrine—an exception to the fifth amendment privilege—applied to the facts of this case. Again relying on Spicer , the court found that, for the doctrine to apply, the State must show with reasonable particularity that, when it sought the act of production, it "knew the evidence existed, the evidence was in the [d]efendant's possession and it was authentic." The court noted (1) a valid search warrant had issued for the phone's contents, which defendant did not challenge, and (2) law enforcement has a right to access the contents of the cell phone. The court concluded, however, that it "would be speculation *** to presume at this point that the photograph would still be on the phone," and it "[could not] find here that it's more likely to be found on the [d]efendant's phone any more than it might be on the [co-defendant's] phone." Accordingly, the court found that the State did not show the foregone conclusion doctrine applied and denied the State's motion to compel defendant to provide access to his cell phone.

¶ 20 The State filed a certificate of substantial impairment, and this appeal followed. Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2017).

¶ 21 II. ANALYSIS

¶ 22 The State appeals, arguing two reasons why the trial court erred by concluding that the fifth amendment protected defendant from being compelled to provide access to his lawfully seized cell phone: (1) compelling defendant to provide access to his cell phone is neither testimonial nor incriminating and (2) the foregone conclusion exception to the fifth amendment applies.

¶ 23 Defendant initially responds that the State's appeal should be dismissed for lack of jurisdiction because the trial court's order did not have the substantive effect of quashing the search warrant and suppressing evidence, as required by Rule 604(a)(1). Id. Alternatively, defendant argues that (1) the compelled production of a cell phone passcode is an act of production that is protected by the fifth amendment and (2) the foregone conclusion doctrine does not apply to the facts of this case.

¶ 24 Because we agree with both of the State's arguments, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

¶ 25 A. The Standard of Review

¶ 26 We review de novo whether the State may take an interlocutory appeal under Rule 604(a). People v. Drum , 194 Ill. 2d 485, 488, 252 Ill.Dec. 470, 743 N.E.2d 44, 46 (2000).

¶ 27 We apply a bifurcated standard of review to the trial court's determination that the fifth amendment privilege protects defendant from being compelled to provide his passcode. First, we "accord great deference to the trial court's...

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1 cases
  • Reynolds v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 4, 2022
    ...the passcode may have had are lost if the foregone conclusion doctrine applies to the existence of the passcode. See People v. Sneed , 453 Ill.Dec. 348, 187 N.E.3d 801, 810 (Ill. App. 4th 2021). Here, the State has established with reasonable particularity that Reynolds's DVR system was pas......

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