State v. Pittman

• Citation: 367 Or. 498,479 P.3d 1028
• Decision Date: 28 January 2021
• Docket Number: SC S067312
• Parties: STATE of Oregon, Respondent on Review, v. Catrice PITTMAN, Petitioner on Review.
• Court: Supreme Court of Oregon

367 Or. 498

479 P.3d 1028

STATE of Oregon, Respondent on Review,

v.Catrice PITTMAN, Petitioner on Review.

SC S067312

Supreme Court of Oregon, En Banc.

Argued and submitted September 15, 2020.

January 28, 2021

Ernest G. Lannet, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Sarah Laidlaw, Deputy Defender.

Jonathan N. Schildt, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Kendra M. Matthews, Boise Matthews Ewing LLP, Portland, filed the brief for amici curiae ACLU of Oregon, American Civil Liberties Union, and Electronic Frontier Foundation. Also on the brief was Kelly Simon, ACLU Foundation of Oregon.

Franz H. Bruggemeier, Portland, filed the brief for amici curiae Oregon Justice Resource Center and Laurent Sacharoff.

WALTERS, C.J.

In connection with a criminal prosecution for delivery of methamphetamine, the trial court ordered defendant to unlock a passcode-protected cell phone that had been found in her purse. Defendant resisted, contending that the order required that she perform an act that would provide incriminating, testimonial evidence, violating her right against self-incrimination under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. The trial court concluded 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, section 12, the record in this case does not include a factual finding by the trial court that would allow us to conclude that those circumstances are present here. Accordingly, we reverse.

I. BACKGROUND

Early one morning, defendant crashed her vehicle into a tree, injuring herself and the passengers in the car. Defendant and the passengers were transported to the hospital where staff provided defendant with trauma care and removed her clothing. While doing so, hospital staff discovered that defendant possessed a large amount of cash, a clear plastic baggie containing white powder, and a pipe, and they turned those items over to police officers. The officers believed (and later confirmed) that the white substance was methamphetamine. The officers also discovered that, inside the baggie containing methamphetamine, there were multiple smaller clear plastic baggies. The officers believed that the baggies were of the type commonly used to sell smaller amounts of drugs and that defendant was selling or distributing drugs. At the hospital, Officer Brian Frazzini attempted to take defendant's statement, and he observed that she appeared to be under the influence of a stimulant. Based on the totality of that evidence, the state eventually charged defendant with crimes, including delivery of methamphetamine, and booked her into jail.

While at the hospital, Officer Frazzini also made another observation that led to the seizure of the phone that is the focus of this case: He observed a "white smart phone style cell phone" in defendant's purse. The police obtained a warrant to seize and search the phone. After seizing the phone, they realized that it was passcode-protected and that they could not unlock it. Supported by Frazzini's affidavit reporting what he had observed at the hospital, Officer Garon Boyce applied for a second search warrant and requested that the court "compel" defendant to provide the "numeric PIN numbers, alphanumeric passwords, patterns codes or other coded information to unlock the phone." The court granted the second search warrant, and another officer, Officer Angus Emmons, met with defendant at the jail. He provided defendant with a copy of the warrant and asked her to unlock the phone. Defendant did not comply.

The state then filed a motion to compel defendant to unlock the phone. In its motion, the state acknowledged that, by unlocking the phone, defendant would "inferentially" communicate that she had control over, or access to, the phone, but "given that the defendant's phone was located in her purse, the defendant's words will not be an admission that the phone was in her control since the state has already established that fact." Accordingly, the state argued, compelling defendant to unlock the phone would not violate defendant's right against self-incrimination.

Defendant opposed the motion. She contended, among other things,¹ that compelling her to provide the passcode to the phone would violate her rights against self-incrimination under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. She asserted that the acts of providing the passcode and unlocking the phone were each testimonial and could incriminate defendant because they would indicate that the phone belonged to her or that she had access to the contents of the phone.

At a hearing, Officer Emmons testified. He explained that his role at the Salem Police Department was to conduct technological investigations, and that the phone at issue was an iPhone, which is produced by Apple. Emmons explained that,

"With Apple specifically, and other phones sometimes, the phone is encrypted by default, which means that all the data on the phone, any potential evidence on the phone, is encrypted to the point where we can't access it unless it's unlocked with either a user code or that biometric data that's sometimes available to unlock the phone."

He also testified that there was practically no way to break the encryption on the phone or to manually remove the memory chip from the phone—even if the chip were removed, the data on the chip would still be encrypted, and to use a computer to decrypt the data, a passcode would still be necessary.

The trial court granted the state's motion to compel. In a letter opinion, the trial court rejected defendant's argument that the state had failed to establish that she knew the passcode or contents of the phone. The trial court explained that, "[b]ased on defendant's possession of the iPhone, Officer Boyce's training and experience, and Officer Emmons’ testimony," there was "probable cause to believe that defendant has knowledge of the passcode and contents of the iPhone." Therefore, the trial court ordered defendant to unlock the phone.

After issuance of its letter opinion, the court held a hearing.² The court did not instruct defendant to reveal the passcode to the phone; the court instructed her to unlock it. When defendant was handed the phone to enter the passcode, a detective observed that she entered, "123456." The phone did not unlock. The court again instructed defendant that she was under court order to unlock the phone and warned her that she would be held in contempt if she did not comply. Defendant again entered "123456," and the phone did not unlock. The court found defendant in contempt and sentenced her to 30 days in jail.

Defendant appealed the contempt judgment, raising, among other things,³ a challenge to the constitutionality of the trial court's underlying order requiring her to unlock the phone.⁴ She argued that the order compelling her to enter the passcode violated her rights under Article I, section 12, and the Fifth Amendment because the act of entering the passcode would be testimonial and incriminating: The act would have communicated that defendant owned or had access to the phone and its contents. Defendant also argued that the doctrine on which the trial court had relied—the so-called "foregone conclusion doctrine"—was inapplicable. Defendant argued that, to prevail under that doctrine, the state was required to establish that it could prove the facts that her act could reveal, i.e. , that she owned the phone and knew its passcode. Defendant asserted that the state had not met that burden. Defendant acknowledged that, because the police had found the phone in her purse, the state had evidence that permitted an inference that defendant owned the phone. Defendant argued, however, that she had not admitted owning the phone and that "the act of typing a correct passcode into the phone would be new and stronger evidence that defendant owned the phone and was connected to any inculpatory evidence discovered in the phone." Moreover, defendant asserted, because of the vast amount of private information maintained on cell phones, the state should be required to show that it already knew the incriminating information that the phone contained. According to defendant, because the state had to prove the facts that the act of unlocking the phone would provide and had not done so, the trial court's order was not lawful, and the court had erred in holding her in contempt for failing to unlock the phone.

In its response, the state acknowledged that the court's order compelling defendant to unlock the phone could be considered an order compelling "testimony" under Article I, section 12, and the Fifth Amendment, because the act would communicate that defendant "had control over the phone." The state argued, however, that the testimonial aspects of the act were significant only to the extent that the act communicated facts that the state did not already know.

The Court of Appeals affirmed. Pittman , 300 Or. App. at 164, 452 P.3d 1011. The court agreed with defendant that the act of entering the passcode was testimonial, explaining that entering the passcode "requires the suspect to reveal her knowledge of the passcode and, by extension, allows a factual inference that she has access to the device and its contents." Id. at 153, 452 P.3d 1011. The court then turned to the state's argument that such testimony could be compelled under the "foregone conclusion doctrine," which the state asserted had...