Seo v. State

• Court: Supreme Court of Indiana
• Citation: 148 N.E.3d 952
• Docket Number: Supreme Court Case No. 18S-CR-595
• Parties: Katelin EUNJOO SEO, Appellant (Defendant) v. STATE of Indiana, Appellee (Plaintiff)
• Decision Date: 23 June 2020

148 N.E.3d 952

Katelin EUNJOO SEO, Appellant (Defendant)
v.
STATE of Indiana, Appellee (Plaintiff)

Supreme Court Case No. 18S-CR-595

Supreme Court of Indiana.

Argued: April 18, 2019
Filed June 23, 2020

On Petition to Transfer from the Indiana Court of Appeals, No. 29A05-1710-CR-2466

Rush, Chief Justice.

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.

Facts and Procedural History

Katelin Seo contacted her local sheriff's department claiming D.S. had raped her. Detective Bill Inglis met with Seo, and she told him that her smartphone—an iPhone 7 Plus—contained relevant communications with the accused. With Seo's consent, officers completed a forensic download of the device and returned it.

Based on the evidence recovered from the iPhone and the detective's conversations with Seo, no charges were filed against D.S. Instead, law enforcement's focus switched to Seo. D.S. told Detective Inglis that Seo stalked and harassed him, and the detective's ensuing investigation confirmed those claims.

Detective Inglis learned that Seo first contacted D.S. from the phone number associated with her iPhone. But D.S. then began receiving up to thirty calls or text messages daily from dozens of different, unassigned numbers. Yet, because the substance of the contact was consistent, the detective believed that Seo placed the calls and texts using an app or internet program to disguise her phone number. As a result of this investigation, the State charged Seo with several offenses and issued an arrest warrant.

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When Detective Inglis arrested Seo, he took possession of her locked iPhone. Officers asked Seo for the device's password, but she refused to provide it. To clear this hurdle, Detective Inglis obtained two search warrants. The first authorized a forensic download of Seo's iPhone so that law enforcement could search the device for "incriminating evidence." And the second "compelled" Seo to unlock the device and stated that she would be subject "to the contempt powers of the court" if she failed to do so. After Seo again refused to unlock her iPhone, the State moved to hold her in contempt.

At the ensuing hearing, Seo argued that forcing her to unlock the iPhone would violate her Fifth Amendment right against self-incrimination. The trial court disagreed and held Seo in contempt, concluding that "[t]he act of unlocking the phone does not rise to the level of testimonial self-incrimination." Seo appealed, and the trial court stayed its contempt order.

While her appeal was pending, Seo entered into a plea agreement with the State. She pleaded guilty to one count of stalking, and the State dismissed eighteen other charged offenses without prejudice. But because the contempt citation remained in place, Seo still faced the threat of further sanction for disobeying that order. A divided panel of our Court of Appeals reversed the court's pending contempt order. Seo v. State , 109 N.E.3d 418, 440–41 (Ind. Ct. App. 2018).

We granted transfer, vacating the Court of Appeals decision. Ind. Appellate Rule 58(A).¹

Standard of Review

Seo's challenge to the trial court's contempt order alleges a constitutional violation, and thus our review is de novo. See Myers v. State , 27 N.E.3d 1069, 1074 (Ind. 2015).

Discussion and Decision

The Fifth Amendment's Self-Incrimination Clause protects a person from being "compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Embedded within this constitutional principle is the requirement that the State produce evidence against an individual through "the independent labor of its

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officers, not by the simple, cruel expedient of forcing it from his own lips." Estelle v. Smith , 451 U.S. 454, 462, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (cleaned up). The privilege thus protects an accused from being forced to provide the State with even a link in the chain of evidence needed for prosecution. See Hoffman v. United States , 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Yet, not all compelled, incriminating evidence falls under this constitutional protection: the evidence must also be testimonial. Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. , 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004).

To be testimonial, "an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information." Doe v. United States , 487 U.S. 201, 210, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988). The most common form of testimony is verbal or written communications—the vast amount of which will fall within the privilege. Id. at 213–14, 108 S.Ct. 2341. But physical acts can also have a testimonial aspect. See Fisher v. United States , 425 U.S. 391, 410, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

When the State compels a suspect to produce physical evidence, that act is testimonial if it implicitly conveys information. See United States v. Hubbell , 530 U.S. 27, 36, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) ; Pennsylvania v. Muniz , 496 U.S. 582, 595 n.9, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). In certain contexts, however, the communicative aspects of the act may be rendered nontestimonial if the State can show that it already knows the information conveyed, making it a "foregone conclusion." Fisher , 425 U.S. at 411, 96 S.Ct. 1569. In other words, the inquiry is whether the testimonial communications implicit in producing the evidence provide the State with something it does not already know.

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.

Our starting point is Fisher v. United States , 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). There, the IRS subpoenaed several taxpayers' documents that accountants prepared and the taxpayers' attorneys possessed. Id. at 394–96, 96 S.Ct. 1569. The attorneys responded that complying with the subpoenas would violate

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their clients' rights against self-incrimination. Id. at 395–96, 96 S.Ct. 1569.² The Court disagreed. Id. at 414, 96 S.Ct. 1569.

In reaching that conclusion, Fisher considered what, if any, incriminating testimony would be compelled by responding to a documentary summons. Id. at 409, 96 S.Ct. 1569. It was here that the Court created the act of production doctrine: producing documents in response to a subpoena can be testimonial if the act concedes the existence, possession, or authenticity of the documents ultimately produced. Id. at 410, 96 S.Ct. 1569. But when the government can show that it already knows this information, then the testimonial aspects of the act are a "foregone conclusion," id. at 411, 96 S.Ct. 1569, and complying with the subpoena becomes a question "not of testimony but of surrender," id. (quoting In re Harris , 221 U.S. 274, 279, 31 S.Ct. 557, 55 L.Ed. 732 (1911) ). This was the situation in Fisher —the Government knew who possessed the tax documents, and it could independently confirm the documents' existence and authenticity through the accountants who prepared them. Id. at 412–13, 96 S.Ct....