State v. Pittman
| Decision Date | 16 October 2019 |
| Docket Number | A162950 |
| Citation | 452 P.3d 1011,300 Or.App. 147 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Catrice PITTMAN, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
This appeal presents a question of first impression for us under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution: whether a court ordering a suspect to enter the passcode into a smartphone, which the police have lawfully seized and have a warrant to search but are unable to access without the passcode, violates the suspect’s rights against compelled self-incrimination. In this case, defendant was held in contempt after failing to comply with a court order to enter the correct passcode into a seized iPhone.
We agree with the trial court and the parties that the act of entering a passcode into a smartphone is testimonial in nature. It communicates an assertion of fact—specifically that the suspect knows the passcode and, by extension, has access to the device (as its owner or otherwise)—and therefore is subject to protection under Article I, section 12, and the Fifth Amendment. We also agree with the trial court and the parties that it was appropriate to apply the "foregone conclusion" doctrine recognized under the Fifth Amendment and, as a matter of first impression, adopt that doctrine for purposes of Article I, section 12. As for how that doctrine applies in this context, we conclude that, before the court could order defendant to enter the passcode into the iPhone, the state had to prove that defendant’s knowledge of the passcode was a foregone conclusion. The state did not, however, have to prove that the contents of the iPhone were a foregone conclusion. Given the latter conclusion, defendant’s challenge to the court’s ruling (as presented in her opening brief) is not viable, and we affirm.
Defendant was the suspected driver in a single-vehicle accident in which a car struck a tree. At the hospital, hospital employees found white powder, drug paraphernalia, and cash on her person, which they gave to the police. Defendant also had a purse with her at the hospital; the purse contained an iPhone.
Based on evidence collected, the police suspected that defendant had operated a vehicle under the influence of intoxicants, operated a vehicle while distracted, delivered methamphetamine, and/or conspired to deliver methamphetamine. As relevant here, the police obtained a warrant to search the iPhone in defendant’s purse. The police soon determined that they could not access the iPhone without a passcode. According to the police department’s technological investigator, it would take "approximately a thousand years" using "the fastest computer we have access to" to access the information in the iPhone without the passcode. Further, the investigator testified, an iPhone can be set to "delete itself" after 10 incorrect passcode entries, posing an additional risk.
The state moved to compel defendant to disclose the iPhone’s passcode. Anticipating a constitutional challenge, the state asserted that, to the extent that disclosing a passcode is a testimonial act, in that it "inferentially communicate[s] that [defendant] ha[s] control over—or at least access to—the phone," the trial court nonetheless could compel the disclosure, because it was already a foregone conclusion that defendant had control over the phone. As discussed later, "foregone conclusion" is a term of art from Fifth Amendment jurisprudence. Defendant opposed the state’s motion, arguing, first, that the warrant was overbroad and, second, that compelling her to disclose the passcode to the iPhone would violate Article I, section 12, and the Fifth Amendment. On the latter issue, defendant focused on the act being testimonial in nature and did not directly address the "foregone conclusion" issue. In reply, the state defended the warrant, and it reiterated its "foregone conclusion" argument in more detail.
The trial court held a hearing on the state’s motion. The state argued, consistently with its briefing, that it was a foregone conclusion that defendant knew the passcode and had access to the iPhone and that compelling her to disclose the passcode therefore would not violate Article I, section 12, or the Fifth Amendment. In response, defendant argued that the foregone conclusion doctrine did not apply because the state failed to establish that the "desired evidence" actually existed on the iPhone, that defendant was in control of the iPhone and its passcode, and that the "desired evidence" on the iPhone was authentic. Defendant asserted that the state had to satisfy all three requirements for the doctrine to apply.1 The state argued in rebuttal that it had established that defendant was in control of the iPhone and passcode and that requiring it to prove what was on the iPhone before searching it would "put[ ] the cart before the horse." In the state’s view, there was no need for it to prove what was on the iPhone, beyond meeting the probable-cause requirements for the warrant.
After the hearing, the trial court issued a letter opinion, ruling in the state’s favor on the "foregone conclusion" issue and also ruling, subject to certain limitations, that the warrant was not overbroad. The trial court began its analysis by making several statements about "probable cause," including that there was "probable cause to believe that defendant has knowledge of the passcode and contents of the iPhone." The court then described its understanding of the foregone conclusion doctrine in a manner consistent with defendant’s argument—and inconsistent with the state’s argument—but nonetheless agreed with the state as to the result, i.e. , that ordering defendant to disclose the passcode would not violate Article I, section 12, or the Fifth Amendment:
On the same day that the trial court issued its letter opinion, the parties appeared before the court, and the court orally ordered defendant to enter the passcode into the iPhone. An officer observed defendant enter "123456," which failed to unlock the iPhone. The court again ordered defendant "to enter the appropriate code," warning her that, "[i]f you enter a wrong code again, you would be in contempt of court." Defendant again entered "123456," which again failed. The court found defendant in contempt of court and sentenced her to 30 days in jail.
Defendant appeals the contempt judgment, challenging both the underlying order requiring her to disclose the passcode and the contempt judgment itself, which the state agrees is permissible under the circumstances of this case.2 Defendant raises two assignments of error. First, she argues that the trial court erred in ordering her to enter the passcode into the iPhone, because it violated her rights under Article I, section 12, and the Fifth Amendment. We address that issue below. Second, she argues that the trial court plainly erred in holding her in contempt, because the evidence was insufficient to establish a "willful" violation. Applying the standard for plain error review, we reject the second assignment of error without written discussion.
We begin with Article I, section 12, because we typically "consider[ ] state constitutional claims before considering federal constitutional claims." State v. Cookman , 324 Or. 19, 25, 920 P.2d 1086 (1996).
Under Article I, section 12, a person cannot be compelled to testify against himself or herself in a criminal prosecution. Or. Const, Art. I, § 12 (). That protection applies "to any kind of judicial or nonjudicial procedure in the course of which the state seeks to compel testimony that may be used against the witness in a criminal prosecution." State v. Langan , 301 Or. 1, 5, 718 P.2d 719 (1986). There are three requirements to trigger Article I, section 12, protection: (1) testimony; (2) that is compelled; and (3) that could be used against the person in a criminal prosecution. State v. Fish , 321 Or. 48, 53, 893 P.2d 1023 (1995). "Testimony" includes not only speech but also acts that communicate a person’s "beliefs, knowledge, or state of mind." Id . at 56, 893 P.2d 1023. "For an individual to reveal his or her thoughts is necessarily to make a communication, whether by words or actions." Id .
In this case, there is no real dispute that the three requirements for Article I, section 12, protection are met. The trial court necessarily concluded that the act of entering a passcode into an iPhone is testimonial, that a court order is compulsory, and that the state could use defendant’s implicit testimony against her in a criminal prosecution—otherwise the court never would have reached the "foregone conclusion" issue. The state also appropriately concedes each of those points on appeal, and we agree. The act of entering a passcode into a smartphone is testimonial in nature, because it requires the suspect to reveal her...
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State v. Pittman
...that the order was lawful and held defendant in contempt. The Court of Appeals affirmed the contempt judgment. State v. Pittman , 300 Or. App. 147, 164, 452 P.3d 1011 (2019). Although we agree with the state that there are circumstances in which such an order would not violate Article I, se......
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