by Mark Wilson

In a case of first impression, the Oregon Court of Appeals held that entering a passcode into a smartphone is testimonial in nature and subject to the self-incrimination protections of Article I, § 12 of the Oregon Constitution and the Fifth Amendment to the United States Constitution. The court further held, however, that a suspect may be compelled to enter the passcode if the prosecution establishes that defendant’s knowledge of the passcode is a “foregone conclusion.”

Catrice Pittman was involved in a single-vehicle accident and transported to the hospital. White powder, drug paraphernalia and cash were discovered on her person and given to police. Pittman had a purse containing an iPhone with her at the hospital.

Police suspected Pittman of driving under the influence of intoxicants, operating a vehicle while distracted, delivering methamphetamine and/or conspiring to deliver methamphetamine. After obtained a warrant to search Pittman’s iPhone, police quickly discovered that they could not access the iPhone without a passcode.

The police department’s technology investigator claimed that using “the fastest computer we have access to,” it would take “approximately a thousand years” to access the information in the iPhone without the passcode. He also noted that an iPhone can be set to “delete itself” after 10 incorrect passcode entries.

The prosecution moved to compel Pittman to disclose the iPhone’s passcode. Anticipating a constitutional challenge, prosecutors argued that even if disclosing a passcode is a testimonial act, the court could compel disclosure because it was a foregone conclusion that Pittman had control over the phone.

The trial court agreed with the prosecution on the “foregone conclusion” issue and held, subject to certain limitations, that the warrant was not overbroad.

The trial court then ordered Pittman to enter the passcode into the iPhone. She entered “123456,” which did not unlock the iPhone. The court again ordered her “to enter the appropriate code,” warning that she would be in contempt of court if she entered the wrong code again. Pittman again entered “123456,” which again failed. The court found Pittman in contempt of court and sentenced her to 30 days in jail.

Pittman appealed the contempt judgment, arguing that the underlying order requiring her to disclose her passcode violated her right against self-incrimination under Article I, section 12, and the Fifth Amendment. She also argued that the court improperly held her in contempt because the evidence was insufficient to establish a “willful” violation.

The Oregon Court of Appeals held that “the act of entering a passcode into a smartphone is testimonial in nature, because it requires the suspect to reveal knowledge of the passcode and, by extension, allows a factual inference that she has access to the device and its contents.” Moreover, “a court order is an ‘obvious example’ of compulsion” and “there is no question that, if incriminating evidence is found on the iPhone, evidence of defendant’s access to the iPhone could be used against her in a criminal case.”

Observing that the dispute turned upon the proper application of the “foregone conclusion” doctrine that was first articulated by the Supreme Court in Fisher v. United States, 425 U.S. 391, 411, 96 S.Ct. 1569 (1976), the Court agreed that the doctrine applies under Article I, § 12.

“After careful consideration of the principles underlying the 'foregone conclusion' doctrine,” the Court agreed “with the state that it is only the testimonial aspect of the compelled act that must be a foregone conclusion,” not “the iPhone's contents,” as Pittman had argued.

The Court found that the testimonial act was entering the correct passcode. “The act communicates to the court, the prosecution, and potentially a jury that defendant knows the passcode and, by extension, has access to the device and its contents,” the court explained. Accordingly, “the state had to establish that defendant's knowledge of the passcode was a foregone conclusion before the trial court could compel defendant to reveal that knowledge through a testimonial act. The state did not need to establish, however, that the contents of the iPhone were a foregone conclusion.”

Finding “no reason to interpret the Fifth Amendment differently than Article I, section 12,” the court ultimately held that the trial court did not err in concluding that ordering Pittman to disclose the passcode would not violate Article I, § 12, or the Fifth Amendment. See: State v. Pittman, 300 Or App 147, _ P3d _ (Or App 2019).

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