Seo v. State, Court of Appeals Case No. 29A05-1710-CR-2466

• Decision Date: 21 August 2018
• Docket Number: Court of Appeals Case No. 29A05-1710-CR-2466
• Citation: 109 N.E.3d 418
• Parties: Katelin Eunjoo SEO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

109 N.E.3d 418

Katelin Eunjoo SEO, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 29A05-1710-CR-2466

Court of Appeals of Indiana.

FILED August 21, 2018

Attorneys for Appellant: William J. Webster, Carla V. Garino, Webster Legal, LLC, Westfield, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana

Mathias, Judge.

[1] Smartphones are ubiquitous in modern life. See Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 2484, 189 L.Ed.2d 430 (2014) ("[M]odern cell phones, ... are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."). The amount of personal information contained on a typical smartphone is astounding: photographs, contacts, emails, text messages, not to mention the personal information that is contained in widely used smartphone social-media applications such as Facebook, Instagram, LinkedIn, or Twitter. United States v. Wurie , 728 F.3d 1, 7 (1st Cir. 2013) (noting that "[I]nformation [contained on a modern cell phone] is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email, and voicemail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records."). Indeed, a modern smartphone is a "telephone" only as a small part of its many functions. It is more accurately described as a mobile computing and communications device with abilities that were dreams in the realm of science fiction only a few decades ago.

[2] Thus, when the State seeks to search a smartphone, it seeks to inquire into far more than "old-fashioned" information physically contained on paper. In truth, nearly every smartphone contains data stored and arranged in such a way as to uniquely reveal the innermost thoughts of its owner. A smartphone is a trove of extremely personal information that is almost always embarrassing, and potentially, incriminating. A modern smartphone, with its central purpose of connecting its owner to the Internet and its ability to store and share incredible amounts of information in "the Cloud" of online storage, is truly as close as modern technology allows us to come to a device that contains all of its owner's conscious thoughts, and many of his or her unconscious thoughts, as well. So, when the State seeks to compel a person to unlock a smartphone so that it may search the phone without limitations, the privacy implications are enormous and, arguably, unique. Cf. United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009) ("The modern development of the personal computer and its ability to store and intermingle a huge array of one's personal papers in a single place increases law enforcement's ability to conduct a wide-ranging search into a person's private affairs[.]").

[3] In the present case, the Hamilton Superior Court issued a search warrant ordering Katelin Eunjoo Seo ("Seo") not only to produce her smartphone,¹ but also to permit the State to search Seo's smartphone without limitation. Seo refused to unlock the phone, citing her right against self-incrimination under the Fifth Amendment to the Constitution of the United States ("Fifth Amendment," and "Constitution," respectively), and the State sought to hold her in contempt for her refusal to unlock the phone. The trial court agreed with the State and held Seo in contempt for refusing to unlock her phone. Seo appeals and argues that the trial court's order requiring her to unlock her phone violated the guarantee against self-incrimination contained in the Fifth Amendment. We agree. Accordingly, we reverse the trial court's order finding Seo in contempt and remand for proceedings consistent with this opinion, with specific guidelines as to the reasonable specificity that prosecutors should show concerning the information sought in such an instance.

Facts and Procedural History

[4] In July 2017, Seo contacted the Hamilton County Sheriff's Department ("HCSD") claiming to be a victim of a rape committed by D.S. HCSD Detective Bill Inglis ("Detective Inglis") investigated Seo's allegations. As part of his investigation, Seo allowed Detective Inglis to view her smartphone, an Apple iPhone 7 Plus. With Seo's consent, Inglis also did a "forensic download" of the contents of Seo's iPhone and returned it to her. Tr. p. 6.

[5] After reviewing the contents of Seo's iPhone, Inglis decided not to pursue any charges against D.S. Instead, based on the contents of the phone and D.S.'s statements, Inglis began to investigate Seo for stalking and harassing D.S. When questioned, D.S. explained to Inglis that he received numerous calls and text messages from Seo's phone, up to thirty per day. At some point, however, the phone number of the sender of these messages and calls began to change daily, yet the conversations were linked and apparently sent by the same person. Inglis suspected that Seo was using a third-party application to change her phone number.²

[6] On July 19, 2017, the State charged Seo with Level 6 felony stalking, Class A misdemeanor intimidation, Class A misdemeanor theft, and Class B misdemeanor harassment. The information alleged that Seo had stalked and harassed D.S. with the intent to get him to either marry her or impregnate her against his will. The police arrested Seo at her place of employment that same day. At the time of her arrest, Seo had in her possession a bag that contained an iPhone and an iPad tablet. Seo admitted that the phone was hers but claimed that the iPad belonged to someone else. The iPhone appeared to be the same one she had earlier provided to the police, and the number for the iPhone matched that of the phone used to make the earlier calls and send the text messages to D.S. The police took possession of Seo's iPhone at this time.

[7] On July 21, 2017, the State charged Seo under a new cause with thirteen counts of Class A misdemeanor invasion of privacy, alleging that Seo violated a protective order preventing her from contacting D.S. On August 8, 2017, the State applied for and was granted a warrant to search Seo's iPhone. Because Seo's iPhone is locked, the State also sought that same day a warrant and order compelling her to unlock her iPhone so that police could search it. The trial court issued a warrant providing in relevant part:

WHEREAS, William Inglis of the Hamilton County Sheriff's Department has given sworn probable cause testimony for issuance of a Search Warrant. Based on that testimony, the Court finds probable cause exists for issuance of this Search Warrant.

You are, therefore, authorized and ordered in the name of the State of Indiana, with necessary and proper assistance, in the daytime or nighttime, to search the property located at and identified as:

5. for the purpose of searching items described in the sworn evidence, to wit:

That Katelin Eunjoo Seo be compelled to unlock (via biometric fingerprint passcode, password or otherwise) the I Phone [sic] 7 plus with serial number * * * * * * * * * * * * and cellular phone number * * * * * * * pursuant to Indiana Code 35-33-5-11(a) and that if she fails to comply with this order, that she be subject to the contempt powers of the court.

You are further authorized to deliver any of said items to an appropriate facility for analysis and comparison against other evidence gathered in the investigation.

Appellant's App. p. 49.³

[8] On August 15, 2017, Seo, now represented by counsel, notified the State that she would not comply with the order to unlock the phone. Accordingly, the State filed a motion that same day for a rule to show cause why Seo should not be held in contempt. The trial court held a hearing on the matter on September 21, 2017. At the conclusion of the hearing, the trial court entered an order finding Seo in contempt, which reads in relevant part as follows:

1. The State requested and the Court granted a search warrant for the contents of the phone at issue (iPhone 7 plus bearing serial number * * * * * * * * * * * *, previously connected with number * * * * * * * * * *) under cause number 29D01-1708-MC-5624, and the Court took Notice of such cause for the purpose of ruling in this cause.

2. The State requested and the Court granted a search warrant compelling the Defendant to unlock the phone by biometric fingerprint access, keycode, password, passcode, or otherwise under cause number 29D01-1708-MC-5640.

3. The Court finds that the statutory requirements as found in Ind. Code 35-33-5-11 have been satisfied in this cause.

4. The act of unlocking the phone does not rise to the level of testimonial self-incrimination that is protected by the Fifth Amendment of the United States Constitution or by Article 1, Section 14 of the Indiana Constitution.

5. Katelin Eunjoo Seo is found to be in contempt of Court for failure to abide by the warrant issued under this cause: 29D0l-1708-MC-5640.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as follows:

1. That Katelin Eunjoo Seo is ORDERED incarcerated in the Hamilton County Jail and she shall surrender herself at the Hamilton County Jail no later than 4:30 p.m. on today's date, Friday, September 22 unless and until she purges herself of Contempt of Court.

2. That in order to purge herself of Contempt of Court, Katelin Eunjoo Seo is ORDERED to unlock the phone at issue and to (1) disable the passcode function on the phone, or (2) to change the passcode on the phone to 1234.

Appellant's App. pp. 6–7 (emphases in original).

[9] The same day that the trial court entered its contempt order, Seo filed a motion to stay the contempt sanction pending appeal, which the trial court granted on September 25, 2017. Seo filed a notice of appeal on October 20, 2017.⁴

I. Standard of Review

[10] The determination of whether a party is in contempt of court is a matter within the sound discretion of the...