Locked Out
These days, everyone has a cell phone. They are mini-computers, used for a variety of tasks. Owners secure important information using passwords. The downside of cell phones for law enforcement is that, unfortunately, criminals also regularly use these devices in their unlawful activity. That same password that law-abiding citizens use to keep their information safe can be a significant deterrent in criminal investigations.
Even though cell phones are common, the issue of forcing a suspect to give the password to a locked cell phone is a new one for the courts. It has not yet been addressed in either Kentucky courts or the Sixth Circuit courts at the federal level. The decisions issued by courts that have evaluated this question are often inconsistent. Most cases start the same way. A crime has been committed.
The officer legally seizes a cell phone. The cell phone is password protected and law enforcement cannot access information on the phone without the password. The defendant refuses to provide the password. The prosecutor files a motion for an order compelling the defendant to provide the password. The court will compel the defendant to produce the password or deny the motion. No matter the outcome, the case ends up on appeal. There, the appellate court evaluates two questions.
The first question is, “Does requiring an act of production (providing the password) trigger the defendant’s Fifth Amendment protection against self-incrimination?” The Fifth Amendment states, “No person . . . shall be compelled in any criminal case to be a “witness against himself.” There must be a compulsion of testimony that is incriminating.
In Fisher v. the United States, 425 U.S. 391, 408 (1976), compulsion is clear via the court order. Is the giving of the password then incriminating testimony? Requiring a defendant to provide a fingerprint to unlock a cell phone does have Fifth Amendment protection; it is analogous to giving a handwriting sample. However, requiring a defendant state or write down the password is considered an incriminating testimony by most courts. State of Missouri v. Johnson, 576 S.W.3d 205, 225-226 (2019)
The second question that needs to be answered is, “Does the ‘foregone conclusion’ doctrine apply to this testimony?” When it is applicable, then Fifth Amendment protection is not triggered, and the defendant can be compelled to provide the information. This is where courts across the country have diverged in their opinions, following two different schools of analysis. The U.S. Supreme Court has not addressed this issue; state courts rely on U.S. District Court or Court of Appeals opinions for guidance.
The Eleventh Circuit has stated the “foregone conclusion” exception will apply if the government describes with “reasonable particularity” that (1) the information exists in a specified location, (2) the defendant possesses the information, and (3) the information is authentic. Nissman, David M. and Hagen, Ed, Law of Confessions, 2d ed., §3.19 (June 2019). The information sought by law enforcement is not the password itself but the content behind the password. In Re Grand Jury Subpoena Duces Tecum Dated March 25, 670 F.3d 1335 at 1346. This is a higher standard.
The Third Circuit has opined that a defendant can be compelled under the foregone conclusion exception if, in the application for the search warrant, the officer documents the following: “. . . that (1) the Government had custody of the device; (2) before the seizure, [the defendant] possessed, accessed, and owned the device; and (3) there is [evidence] on the device” associated with the crime. In other words, if law enforcement is already aware of the testimonial part of complying with the order of compulsion, and they are not trying to prove that testimony via the order, then the defendant cannot hide behind the Fifth Amendment. Law of Confessions, 2d ed., §3.19.
The biggest problem that results from inconsistent court opinions is what needs to be a foregone conclusion. Courts have focused on the password itself, the defendant’s knowledge of the password and/or the contents of the device itself. State of Oregon v. Pittman, 300 Or.App. 147 (2018)
How is this applicable for law enforcement in Kentucky? The most recent cases come out of Massachusetts, Missouri and Oregon, issued in 2019. These decisions followed the requirements outlined by the Third Circuit. However, Kentucky law enforcement investigations should strive to meet the requirements of the Eleventh Circuit, as it is the higher standard.
An officer meets the “reasonable particularity” standard required under In Re Grand Jury is met when probable cause is established in a search warrant application for the cell phone. The prosecutor will incorporate the affidavit in any motion to compel. The facts include telling how the officer encountered the defendant, the crime believed to have been committed, how the phone was obtained, what evidence is contained on the phone, and where that information might be within the phone’s contents. The officer should also include as many facts as possible about the defendant’s possession of, access to and ownership of the cell phone, as well as knowledge of the cell phone’s password.
Commonwealth v. Jones, 117 N.E.3d 702 (2019) demonstrates how this standard is met. Police were dispatched on a theft call. Sarah reported Dennis Jones had stolen her purse. She met Jones on a dating website, but Jones’ intent was to traffic Sarah as a prostitute. Sarah stated that Jones used an LG cell phone in communication via calls and texts. Sarah had the number connected to this LG phone listed in her phone as “Dennis.” An examination of Sarah’s phone showed calls and texts related to prostitution, including customer communications responding to online ads and instructions on how Sarah should perform certain sexual acts. Police also found postings on backpage.com advertising Sarah as an escort, providing the LG cell phone number for contact purposes.
Jones was indicted for human trafficking. In a search incident to arrest, the officer found an LG cell phone in his front pants’ pocket. He had previously acknowledged ownership of the phone. The LG phone number was listed as a “back-up” number for another phone with his cell phone provider, including Jones’ social security number and birthdate. Finally, the officers provided cell-site location information (CSLI) as to the phone’s location at various times, in relation to where Sarah’s location.
Officers provided particular facts showing emails, texts, online dating sites, phones call records and voicemails would be on the LG cell phone; the defendant owned the LG phone (found in his pants’ pocket, records connecting it to Jones); and the information is authentic as items on LG phone were also on Sarah’s phone.
While it may seem like an impossible task given the lack of guidance from the Sixth Circuit and Kentucky’s appellate courts, legal precedent from other jurisdictions demonstrates that it is possible to compel a defendant to provide the password to a locked cell phone.
