Evan Kennedy

J.D., 2021, Indiana University Robert H. McKinney School of Law

B.S., 2018, Purdue University Krannert School of Management

Is there anything containing more incriminating evidence than your cell phone? Generally, no. Cell phones have numerous capabilities and could “easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Even greater, modern cell phones contain thousands of texts, hundreds of pictures and videos, internet browsing history, a calendar, and so on.

With this in mind, the issue becomes whether the Fifth Amendment privilege against self-incrimination protects criminal defendants from court orders requiring them to unlock their cell phones. Potential constitutional problems arise when a court orders a criminal defendant to provide his or her passcode in an investigation. One view is that the defendant, by providing his passcode, only implicitly testifies that “I know the password.” A differing perspective is that entering the passcode communicates: “Everything on the phone exists to my knowledge, is authentic, and in my control.” Adopting the latter leads to a self incrimination violation. The former, however, approves of the government forcing a defendant to unlock his phone and obtaining access to all files on the phone via the foregone conclusion doctrine.

The Fifth Amendment’s Self-Incrimination Clause states that no person “shall be compelled in any criminal case to be a witness against himself.” Taking the stand is the traditional mechanism triggering the Self-Incrimination Clause; nevertheless:

the act of producing subpoenaed documents may have a compelled testimonial aspect. That act, as well as a custodian’s compelled testimony about whether he has produced everything demanded, may certainly communicate information about the documents’ existence, custody, and authenticity. It is also well settled that compelled testimony communicating information that may lead to incriminating evidence is privileged even if the information itself is not inculpatory.

Indiana’s Self-Incrimination Clause provides that “[n]o person, in any criminal prosecution, shall be compelled to testify against himself.” Similar to its federal counterpart, the Indiana Supreme Court addressed the act of production, stating that it is “well settled in criminal cases, that the court cannot compel the defendant to produce an instrument in writing, in his possession, to be used in evidence against him, as to do so would be to compel the defendant to furnish evidence against himself, which the law prohibits.” While nearly identical, “[t]he federal constitution establishes rights that the states may choose to expand.” Thus, the Fifth Amendment’s Self-Incrimination Clause establishes the floor of protections for defendants. But Article 1, Section 14 of the Indiana Constitution allows for the expansion of protections.

On June 23, 2020, the Indiana Supreme Court issued a landmark decision, ultimately holding that the government must know—not merely infer—that the evidence it seeks exists on a defendant’s smartphone, is under his or her control, and is authentic in order to overcome the Fifth Amendment protection. Particularly, the government cannot compel a suspect to enter their passcode merely by showing that the defendant knows the passcode to the phone. In rejecting that line of thinking, the Indiana Supreme Court noted that law enforcement could simply fish for “incriminating evidence,” that is, “scour the device for incriminating information.” Put differently, the foregone conclusion exception applies only when the government shows, with sufficient particularity, the documents or files it seeks. This is the proper scope of the protection provided by the Self-Incrimination Clause. Even more, the Indiana Supreme Court expressed concerns with extending the foregone conclusion exception to the compelled production of an unlocked smartphone.

Meanwhile, the Massachusetts Supreme Court paved a simpler route for the government by holding that the defendant must unlock his cell phone if the prosecution can establish the defendant’s knowledge of the passcode beyond a reasonable doubt. This case provided the government access to a defendant’s decrypted cell phone with a minimal showing that the defendant knew the passcode, thereby allowing access to all files on the cell phone. Further, the opinion acknowledged that other witnesses knew the passcode, yet failed to hold that the government should explore those options before compelling a criminal defendant to unlock his cell phone.

This Note argues that the foregone conclusion exception to the act-of production doctrine should only apply to the files or documents on the phone, and not to the testimonial aspect of knowing the phone’s passcode. In other words, the government needs to show with reasonable particularity the files sought rather than merely showing that the defendant knows the passcode to the phone. Providing otherwise would swallow up any Fifth Amendment protections against self-incrimination. This Note further argues that the Indiana Supreme Court adopted the proper framework in Seo v. State, despite the inevitability of the United States Supreme Court weighing in. If and when the highest court issues a decision in the compelled decryption realm, the Indiana Constitution can nevertheless provide a higher ceiling of protections beyond the Fifth Amendment. That is, if the United States Supreme Court adopts the Commonwealth v. Jones framework—where the government satisfies the foregone conclusion exception by proving the defendant knows the passcode.

The Fourth Amendment analysis is beyond the scope of this Note. The Fourth Amendment protects “[t]he rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . . and particularly describing the place to be searched, and the persons or things to be seized.” It is important to keep the Fourth and Fifth Amendments separate, a conflating the two in this situation would swallow up any Fifth Amendment protections with the evolution of technology.

Part I of the Note explains encryption and decryption. This Part compares the readability of cell phone data when the phone is locked and unlocked. Part II examines where federal law currently stands. This Part explains the act-of-production doctrine and foregone conclusion exception and analyzes precedent in light of technological advances. Part III explores both sides of the coin—that is, both arguments in this arena. Part IV explains Indiana’s groundbreaking decision in Seo v. State. This Part provides a thorough explanation of the facts, holding, and ramifications of this decision. Part V explains how and why Indiana got it right and provides the suggested framework when a criminal defendant receives a court order to unlock his phone. Lastly, this Part explores additional protections under the Indiana Constitution for if and when the United States Supreme Court weighs in.

Read the Evan Kennedy’s entire article here.