People v. Sneed

2021 IL App (4th) 210180, 187 N.E.3d 801, 453 Ill. Dec. 348

• Court: Appellate Court of Illinois
• Decided: November 18, 2021
• Docket: 4-21-0180
• Status: Published

Opinion

2021 IL App (4th) 210180 FILED November 18, 2021 NO. 4-21-0180 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) De Witt County KEIRON K. SNEED, ) No. 21CF13. Defendant-Appellee. ) ) Honorable ) Karle E. Koritz, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices DeArmond and Turner concurred in the judgment and opinion.

OPINION

¶1 In February 2021, the State charged defendant, Keiron K. Sneed, with two counts

of forgery (720 ILCS 5/17-3(a)(1) (West 2020)). The police later sought and obtained a search

warrant for defendant’s cell phone but were unable to execute the search because the cell phone

was passcode-protected and defendant declined to provide the passcode. The State filed a “Motion

to Compel Production of Cellular Phone Passcode,” but the trial court denied that motion. The

court ruled that the fifth amendment privilege against self-incrimination prevented defendant from

being compelled to provide the passcode to his cell phone.

¶2 The State appeals, arguing two reasons why the trial court erred by concluding the

fifth amendment protected defendant from being compelled to provide access to his lawfully seized

cell phone: (1) compelling defendant to provide access to his cell phone is neither testimonial nor

incriminating and (2) the foregone conclusion exception to the fifth amendment applies. Because we agree with both of the State’s arguments, we reverse the judgment of the trial court and remand

for further proceedings consistent with this opinion.

¶3 I. BACKGROUND

¶4 A. The Charges

¶5 In February 2021, the State charged defendant by information with two counts of

forgery (id.). The charging documents alleged defendant made two false paychecks from Dairy

Queen with the intent to defraud Dairy Queen and “financial institutions.” Defendant and his wife,

Allora Spurling, were both arrested in connection with the false paychecks. When they were

arrested, the police seized two cell phones from their persons—one from defendant and one from

Spurling.

¶6 B. The Search Warrant

¶7 In March 2021, Detective Todd Ummel of the Clinton Police Department applied

for a search warrant to search the contents of both phones. He described the items to be searched

as (1) a “Samsung Galaxy A01” “belonging to [defendant]” and (2) a “Samsung Galaxy J2”

“belonging to [Spurling.]”

¶8 In his complaint for search warrant, Ummel attested to the following information.

In January 2021, Sara Schlesinger, a bookkeeper for Dairy Queen in Clinton, Illinois, reported to

the Clinton Police Department that she “came across” a paycheck in the amount of $274.33,

payable to defendant. Defendant had never been an employee of Dairy Queen, but his wife—

Spurling—was a current employee. Schlesinger reported that the paycheck had been cashed with

Citibank via mobile deposit (i.e., through the use of a cell phone). Schlesinger provided Clinton

police officer Alex Lovell with a text message Spurling sent to Schlesinger that stated as follows:

“I didn’t know anything about it. I guess it wasn’t meant to happen for real. It [sic]

-2- was being curious and he didn’t think it would actually work cuz it wasn’t real. He

never got the money. *** I’m upset and embarrassed. And pissed. But please know

I had no clue about it[.] He doesn’t have a card for that bank or anything. Is there a

way to call the bank and get the money back cuz he didn’t get it[.]”

Schlesinger also provided Ummel with a second paycheck she discovered, payable to defendant

in the amount of $423.22. This check was also deposited by mobile deposit. Schlesinger confirmed

the amounts written on the paychecks were taken out of Dairy Queen’s bank account.

¶9 Ummel also stated in his complaint for search warrant that he sought to search

defendant’s phone to “confirm whom [sic] deposited the forged paycheck and to determine if any

additional forged paychecks have been deposited.” He further sought to “confirm that the text

messages from [Spurling] came from her phone.”

¶ 10 The trial court issued a search warrant granting Ummel permission to search both

phones.

¶ 11 C. The State’s Motion To Compel

¶ 12 A few days later, the State filed a “Motion to Compel Production of Cellular Phone

Passcode” in defendant’s case, which requested an order “to compel the entry of a passcode into a

cellular device.” The motion alleged that the police were prevented from executing the search

warrant because both phones were passcode-protected. (We note that this appeal pertains only to

defendant and access to the cell phone identified as his in the search warrant.)

¶ 13 Later that same month, the trial court conducted an evidentiary hearing on the

State’s motion, at which Ummel was the sole witness. He testified that the Clinton Police

Department was contacted by “[m]anagement” at Dairy Queen “[r]egarding fraudulent checks that

were cashed on the account of Dairy Queen.” Defendant had never been employed at Dairy Queen,

-3- but defendant’s wife was an employee at the time the checks were cashed. Ummel testified that

both checks were cashed via mobile electronic deposit from a cellular phone. Ummel explained

that mobile deposit involves taking a photograph of a check and sending it electronically to a

financial institution for deposit.

¶ 14 Ummel further testified that he observed pictures of the two cashed checks. (The

record does not state where Ummel viewed the photographs, who showed him the photographs, or

whether they were physical or electronic photographs.) They were payable to defendant and

endorsed with the signature “Keiron Sneed.” Ummel also stated that Schlesinger provided him

with text messages in which Spurling admitted defendant cashed the checks. Schlesinger also

provided Ummel with bank records that showed the funds were missing from the Dairy Queen

account.

¶ 15 Ummel also testified that he obtained the search warrant to search defendant’s and

Spurling’s cell phones but discovered the phones were locked by security passcodes. He stated

defendant and Spurling would not provide him with the passcodes. The Clinton police did not have

the technology to “crack” the phone, and the agency that assisted him in the past—the Illinois State

Police—would not assist unless his investigation involved narcotics.

¶ 16 Ummel further testified that, following defendant’s arrest, defendant filled out a

bond form and provided a phone number that matched the phone that was seized from him. Ummel

testified he was “hoping to find *** that a photograph exists on that device from submitting the

mobile deposit.”

¶ 17 D. The Trial Court’s Ruling

¶ 18 The trial court denied the State’s motion. The court first noted that the fifth

amendment privilege against self-incrimination applies only when an accused is compelled to

-4- make a testimonial communication that is incriminating. But then, relying on People v. Spicer,

2019 IL App (3d) 170814, 125 N.E.3d 1286, the court found that the act of producing a cell phone

passcode is testimonial.

¶ 19 The trial court then examined whether the foregone conclusion doctrine—an

exception to the fifth amendment privilege—applied to the facts of this case. Again relying on

Spicer, the court found that, for the doctrine to apply, the State must show with reasonable

particularity that, when it sought the act of production, it “knew the evidence existed, the evidence

was in the [d]efendant’s possession and it was authentic.” The court noted (1) a valid search

warrant had issued for the phone’s contents, which defendant did not challenge, and (2) law

enforcement has a right to access the contents of the cell phone. The court concluded, however,

that it “would be speculation *** to presume at this point that the photograph would still be on the

phone,” and it “[could not] find here that it’s more likely to be found on the [d]efendant’s phone

any more than it might be on the [co-defendant’s] phone.” Accordingly, the court found that the

State did not show the foregone conclusion doctrine applied and denied the State’s motion to

compel defendant to provide access to his cell phone.

¶ 20 The State filed a certificate of substantial impairment, and this appeal followed. Ill.

S. Ct. R. 604(a)(1) (eff. July 1, 2017).

¶ 21 II. ANALYSIS

¶ 22 The State appeals, arguing two reasons why the trial court erred by concluding the

fifth amendment protected defendant from being compelled to provide access to his lawfully seized

cell phone: (1) compelling defendant to provide access to his cell phone is neither testimonial nor

incriminating and (2) the foregone conclusion exception to the fifth amendment applies.

¶ 23 Defendant initially responds that the State’s appeal should be dismissed for lack of

-5- jurisdiction because the trial court’s order did not have the substantive effect of quashing the search

warrant and suppressing evidence, as required by Rule 604(a)(1). Id. Alternatively, defendant

argues that (1) the compelled production of a cell phone passcode is an act of production that is

protected by the fifth amendment and (2) the foregone conclusion doctrine does not apply to the

facts of this case.

¶ 24 Because we agree with both of the State’s arguments, we reverse the judgment of

the trial court and remand for further proceedings consistent with this opinion.

¶ 25 A. The Standard of Review

¶ 26 We review de novo whether the State may take an interlocutory appeal under Rule

604(a). People v. Drum, 194 Ill. 2d 485, 488, 743 N.E.2d 44, 46 (2000).

¶ 27 We apply a bifurcated standard of review to the trial court’s determination that the

fifth amendment privilege protects defendant from being compelled to provide his passcode. First,

we “accord great deference to the trial court’s factual findings, and *** reverse those findings only

if they are against the manifest weight of the evidence.” In re G.O., 191 Ill. 2d 37, 50, 727 N.E.2d

1003, 1010 (2000). Next, we review de novo the ultimate question of whether the privilege applies.

Id.; see also Spicer, 2019 IL App (3d) 170814, ¶ 14 (citing People v. McRae, 2011 IL App (2d)

090798, ¶ 25, 959 N.E.2d 1245); In re A.W., 231 Ill. 2d 92, 106, 896 N.E.2d 316, 324 (2008) (“The

standard of review for determining whether an individual’s [fifth amendment] rights have been

violated is de novo.” (Internal quotation marks omitted.)).

¶ 28 In this case, Ummel was the sole witness at the hearing on the State’s motion to

compel, and the trial court appeared to have no difficulty accepting his testimony. Thus, like the

trial court, we will accept his testimony and now review de novo the trial court’s determination

that the fifth amendment privilege against self-incrimination protected defendant from being

-6- compelled to provide his passcode.

¶ 29 B. Jurisdiction

¶ 30 Defendant first argues that the State’s appeal should be dismissed for lack of

jurisdiction under Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2017) because the trial

court’s denial of the State’s motion to compel did not have the substantive effect of quashing the

search warrant and suppressing evidence. Defendant also contends that the impairment of the

State’s case is questionable. The State responds that the court’s order precluded the State from

accessing the information on the phone, which is no different than precluding the State from

presenting the information on the cell phone at trial. We agree with the State.

¶ 31 Rule 604(a)(1) reads as follows: “When State May Appeal. In criminal cases the

State may appeal only from an order or judgment the substantive effect of which results in ***

quashing an arrest or search warrant; or suppressing evidence.” Id.

¶ 32 Before the State may obtain review of a suppression order under Rule 604(a), the

State must certify to the trial court that the suppression order substantially impairs its ability to

prosecute the case. People v. Turner, 367 Ill. App. 3d 490, 494, 854 N.E.2d 1139, 1143 (2006).

“A good-faith evaluation by the prosecutor of the impact of a suppression order is sufficient to

meet the State’s burden.” Id. at 495 (citing People v. Keith, 148 Ill. 2d 32, 40, 591 N.E.2d 449,

452 (1992)); see also People v. Young, 82 Ill. 2d 234, 247-48, 412 N.E.2d 501, 507 (1980). “[T]he

substantive effect of a trial court’s pretrial order, not the label of the order or its underlying motion,

controls appealability under Rule 604(a)(1).” Drum, 194 Ill. 2d at 489. We agree with what the

Third District wrote in Spicer: “When a warrant has issued allowing a search of a defendant’s

phone, an order that denies a motion to compel the defendant to decrypt the phone is like an order

suppressing evidence.” Spicer, 2019 IL App (3d) 170814, ¶ 11.

-7- ¶ 33 Here, the State filed a certificate of substantial impairment, attesting that the trial

court’s order “effectively suppresse[s] evidence and prevent[s] the State from acquiring evidence

pursuant to a search warrant issued by the Court, thereby effectively quashing the search warrant,

substantially impair[ing] [the State’s] ability to prosecute this cause.”

¶ 34 We accept the State’s good faith evaluation of the impact of the trial court’s order

on its ability to prosecute its case and agree that the trial court’s order is like an order suppressing

evidence. Accordingly, we conclude that we have jurisdiction to hear this appeal.

¶ 35 C. The Fifth Amendment Privilege Against Self-Incrimination

¶ 36 1. The Applicable Law

¶ 37 The fifth amendment to the United States Constitution provides that “[n]o person

*** shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend.

V. The Illinois Constitution similarly provides, “No person shall be compelled in a criminal case

to give evidence against himself ***.” Ill. Const. 1970, art. I, § 10. The state and federal

constitutional privileges against self-incrimination “differ in semantics rather than in substance

and have received the same general construction.” People ex rel. Hanrahan v. Power, 54 Ill. 2d

154, 160, 295 N.E.2d 472, 475 (1973).

¶ 38 The privilege against self-incrimination is intended to protect an accused “from

having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from

having to share his thoughts and beliefs with the Government.” Doe v. United States, 487 U.S.

201, 213 (1988) (Doe II). “[T]he Fifth Amendment does not independently proscribe the

compelled production of every sort of incriminating evidence but applies only when the accused

is compelled to make a testimonial communication that is incriminating.” (Emphasis omitted.)

Fisher v. United States, 425 U.S. 391, 408 (1976). “To establish a fifth amendment violation,

-8- appellants must therefore demonstrate the existence of three elements: 1) compulsion, 2) a

testimonial communication, and 3) the incriminating nature of that communication.” In re Grand

Jury Subpoena, 826 F.2d 1166, 1168 (2d Cir. 1987).

¶ 39 a. What Constitutes a Testimonial Communication

¶ 40 “[T]o be testimonial, an accused’s communication must itself, explicitly or

implicitly, relate a factual assertion or disclose information.” Doe II, 487 U.S. at 210. It is “the

attempt to force [a suspect] ‘to disclose the contents of his own mind,’ [citation] that implicates

the Self-Incrimination Clause.” Id. at 211 (quoting Curcio v. United States, 354 U.S. 118, 128

(1957)). This requirement that the compelled communication assert a fact or disclose information

explains why certain acts, although incriminating, are not testimonial and do not enjoy fifth

amendment protection. See, e.g., Schmerber v. California, 384 U.S. 757, 765 (1966) (a suspect

may be compelled to furnish a blood sample); Gilbert v. California, 388 U.S. 263, 266-67 (1967)

(handwriting exemplar); United States v. Dionisio, 410 U.S. 1, 7 (1973) (voice exemplar); United

States v. Wade, 388 U.S. 218, 221-22 (1967) (stand in a lineup). The United States Supreme Court

has explained that the fifth amendment’s protections are limited to “testimonial” communications

because “there is a significant difference between the use of compulsion to extort communications

from a defendant and compelling a person to engage in conduct that may be incriminating.” United

States v. Hubbell, 530 U.S. 27, 34-35 (2000).

¶ 41 For example, in Doe II, 487 U.S. at 215-19, the Supreme Court held that an order

compelling the petitioner—who was the target of a grand jury investigation—to sign an

authorization that permitted foreign banks to disclose records of his accounts (if any existed) had

no testimonial significance because the mere act of signing the form made no statement, implicit

or explicit, regarding the existence of any foreign bank account, control over any such account, or

-9- the authenticity of any records produced by any bank. The authorization was carefully drafted in

the hypothetical to not refer to any specific bank or account number so that it would not serve as

an acknowledgement by the target of the existence of any foreign bank account, his control over

any bank account, or the authenticity of any documents produced. Id. at 215-16. The Court rejected

the petitioner’s “blanket assertion” that a statement is testimonial if its content can be used to

obtain evidence. Id. at 208 n.6. In doing so, the Court reasoned that this argument “confuses the

requirement that the compelled communication be ‘testimonial’ with the separate requirement that

the communication be ‘incriminating.’ ” Id. “If a compelled statement is ‘not testimonial and for

that reason not protected by the privilege, it cannot become so because it will lead to incriminating

evidence.’ ” Id. (quoting In re Grand Jury Subpoena, 826 F.2d at 1171 n.2 (Newman, J.,

concurring)).

¶ 42 Certain communicative acts, however, may be testimonial for purposes of the fifth

amendment. For example, the act of producing documents in response to a subpoena could have

“communicative aspects of its own, wholly aside from the contents of the papers produced.”

Fisher, 425 U.S. at 410; see also Hubbell, 530 U.S. at 36 (“[T]he act of producing documents in

response to a subpoena may have a compelled testimonial aspect.”). “Compliance with [a]

subpoena tacitly concedes the existence of the papers demanded and their possession or control by

the [person subpoenaed].” Fisher, 425 U.S. at 410. This is known as the “act of production”

doctrine, which “permits an individual to assert his fifth amendment privilege against

self-incrimination and refuse to produce subpoenaed documents where the mere act of production,

rather than the content of the documents, has testimonial ramifications.” In re Grand Jury

Subpoena Duces Tecum No. 001144, 164 Ill. App. 3d 344, 347, 517 N.E.2d 1157, 1159 (1987).

¶ 43 b. The Foregone Conclusion Doctrine

- 10 - ¶ 44 A corollary doctrine—also formulated in Fisher—that serves as an exception to the

act of production doctrine is the “foregone conclusion” doctrine. Under this doctrine, the

testimonial value of the act of production is lost where the information conveyed by the act of

production is already known by the State. Fisher, 425 U.S. at 411. For this exception to apply, the

State must establish its knowledge of (1) the existence of the information demanded, (2) the

possession or control of that information by the defendant, and (3) the authenticity of the

information. Commonwealth v. Gelfgatt, 11 N.E.3d 605, 614 (Mass. 2014) (citing Fisher, 425 U.S.

at 410-13); see also United States v. Bright, 596 F.3d 683, 692 (9th Cir. 2010). Where these

elements are satisfied, the testimony implied by the defendant’s act of production is a “foregone

conclusion” that “adds little or nothing to the sum total of the Government’s information.” Fisher,

425 U.S. at 411. In that case, “no constitutional rights are touched. The question is not of testimony

but of surrender.” (Internal quotation marks omitted.) Id.

¶ 45 Thus, the United States Supreme Court has identified two means by which an act

of production is not testimonial and, as such, falls outside the protection of the fifth amendment:

(1) where the act of production compels a mere physical act (Doe II, 487 U.S. at 215) and (2) where

the act of production conveys information that is a “foregone conclusion” (Fisher, 425 U.S. at 410-

14). For the reasons that follow, we conclude the trial court erred because both means apply to the

¶ 46 2. This Case

¶ 47 a. Testimonial vs. Non-testimonial

¶ 48 The State first argues that compelling defendant to provide entry to his

passcode-protected phone is not a testimonial act of production because it is a mere physical act,

such as providing a thumbprint, blood sample, or voice exemplar. Defendant responds that

- 11 - compelling him to provide access to his passcode-protected phone is a testimonial act of

production because it requires him to utilize the “contents of his mind.” See Hubbell, 530 U.S. at

43; Doe II, 487 U.S. at 210 n.9. Defendant contends the act of providing entry to his cell phone is

more like “telling an inquisitor the combination to a wall safe” than “being forced to surrender the

key to a strongbox.” See Hubbell, 530 U.S. at 43; see also Doe II, 487 U.S. at 210 n.9.

¶ 49 Consistent with defendant’s position, several courts have held the compelled

production of a passcode or decryption key to be a testimonial act because it reveals the “contents

of the person’s mind.” See, e.g., In re Search Warrant Application for [Redacted Text], 279 F.

Supp. 3d 800, 806 (N.D. Ill. 2017); In re Grand Jury Subpoena Duces Tecum Dated March 25,

2011, 670 F.3d 1335, 1346 (11th Cir. 2012); United States v. Kirschner, 823 F. Supp. 2d 665,

668-69 (E.D. Mich. 2010). Under this rationale, the “physical/mental production” dichotomy is “a

critical distinction” in determining whether an act is testimonial or non-testimonial.

Commonwealth v. Davis, 220 A.3d 534, 547-48 (Pa. 2019) (“Consistent with a physical/mental

production dichotomy, in conveying the combination to a wall safe, versus surrendering a key to

a strongbox, a person must use the ‘contents of [his] own mind.’ ”).

¶ 50 However, an examination of the origin of the “mental/physical production”

dichotomy leads us to question whether it is properly applied in the context of compelled access

to a passcode-protected phone.

¶ 51 i. The Origins of the Mental/Physical Production Dichotomy

¶ 52 The dichotomy originates in Doe II, where the United States Supreme Court

determined that the petitioner was not protected by the fifth amendment from being compelled to

sign an authorization that would allow foreign banks to disclose documents relating to his

accounts, if those accounts existed. Doe II, 487 U.S. at 203, 215. Justice Stevens dissented and

- 12 - opined that a defendant cannot “be compelled to use his mind to assist the prosecution in convicting

him of a crime.” Id. at 219 (Stevens, J., dissenting). He reasoned that a defendant “may in some

cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not

believe he can be compelled to reveal the combination to his wall safe—by word or deed.” Id. The

majority addressed Justice Stevens’s analogy and expressed its agreement that “[t]he expression

of the contents of an individual’s mind” is testimonial but disagreed that the execution of the

authorization at issue “forced [the] petitioner to express the contents of his mind.” (Internal

quotation marks omitted.) Id. at 210 n.9 (majority opinion). The majority believed the compelled

execution of the authorization was more like surrendering a key than providing a combination. Id.

¶ 53 Thereafter, in Hubbell, a case involving a subpoena duces tecum, the Supreme

Court rejected the government’s argument that the respondent’s act of producing documents was

merely a physical act. Hubbell, 530 U.S. at 41-43. The government’s subpoena sought the

production of 11 categories of documents. Id. at 31. The respondent “produced 13,120 pages of

documents and records and responded to a series of questions that established that those were all

of the documents in his custody or control that were responsive to the commands in the subpoena.”

Id. The Court observed the following:

“The assembly of literally hundreds of pages of material in response to a request

for ‘any and all documents reflecting, referring, or relating to any direct or indirect

sources of money or other things of value received by or provided to’ an individual

or members of [respondent’s] family during a 3-year period *** is the functional

equivalent of the preparation of an answer to either a detailed written interrogatory

or a series of oral questions at a discovery deposition.” Id. at 41-42.

The Court also observed that the respondent “took the mental and physical steps necessary to

- 13 - provide the prosecutor with an accurate inventory of the many sources of potentially incriminating

evidence sought by the subpoena.” Id. at 42. The Court explained the government’s possession of

the documents was not the fruit of a mere physical act of production. Instead, “it was

unquestionably necessary for respondent to make extensive use of ‘the contents of his own mind’

in identifying the hundreds of documents responsive to the requests in the subpoena.” Id. at 43.

The Court then repeated Justice Stevens’s analogy from Doe II, observing, “[t]he assembly of

those documents was like telling an inquisitor the combination to a wall safe, not like being forced

to surrender the key to a strongbox.” Id.

¶ 54 ii. Lower Courts’ Interpretations

¶ 55 Several courts have since held that the compelled production of a passcode (or

unlocked/decrypted device) is a testimonial act of production because it requires the use of the

“contents of the mind.” See, e.g., In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011,

670 F.3d at 1346 (“[T]he decryption and production of the hard drives would require the use of

the contents of [the defendant’s] mind.”); G.A.Q.L. v. State, 257 So. 3d 1058, 1061 (Fla. Dist. Ct.

App. 2018) (“[R]evealing one’s password *** probes into the contents of an individual’s mind.”);

Davis, 220 A.3d at 548 (“[O]ne cannot reveal a passcode without revealing the contents of one’s

mind.”). This group includes the only Illinois court to address the issue, Spicer, 2019 IL App (3d)

170814, discussed in further detail infra, ¶¶ 72-81.

¶ 56 Other courts have questioned whether the strongbox key/wall safe combination

analogy is appropriate for the digital world. See State v. Stahl, 206 So. 3d 124, 135 (Fla. Dist. Ct.

App. 2016) (“We question whether identifying the key which will open the strongbox—such that

the key is surrendered—is in fact, distinct from telling an officer the combination. More

importantly, we question the continuing viability of any distinction as technology advances.”);

- 14 - State v. Andrews, 234 A.3d 1254, 1274 (N.J. 2020) (“[I]n some cases, a biometric device lock can

be established only after a passcode is created, calling into question the testimonial/non-testimonial

distinction in this context.”). Although the Andrews court ultimately held that the production of a

passcode is testimonial, it noted that “passcodes are a series of characters without independent

evidentiary significance and are therefore of ‘minimal testimonial value’—their value is limited to

communicating the knowledge of the passcodes.” Id. at 1274 (citing United States v. Apple

MacPro Computer, 851 F.3d 238, 248 n.7 (3d Cir. 2017)).

¶ 57 The Andrews and Stahl courts also expressed concern that, under the

physical/mental dichotomy, fifth amendment protection may apply to a phone that is protected by

a numeric passcode, but not to a phone protected by a thumbprint. See, e.g., Andrews, 234 A.3d at

1274 (“We also share the concerns voiced by other courts that holding passcodes exempt from

production whereas biometric device locks may be subject to compulsion creates inconsistent

approaches based on form rather than substance.”); Stahl, 206 So. 3d at 135 (“[W]e are not inclined

to believe that the Fifth Amendment should provide greater protection to individuals who passcode

protect their iPhones with letter and number combinations than to individuals who use their

fingerprint as the passcode.”).

¶ 58 iii. This Court’s Conclusion: Production of a Passcode Is Non-testimonial

¶ 59 The questions raised in Stahl and Andrews regarding the continued viability of the

key/combination analogy (i.e., mental/physical dichotomy) in the digital age deserve

consideration. We, too, observe that a cell phone passcode is string of letters or numbers that an

individual habitually enters into his electronic device throughout the day. A passcode may be used

so habitually that its retrieval is a function of muscle memory rather than an exercise of conscious

thought. A fair question that arises, then, is whether the rote application of a series of numbers

- 15 - should be treated the same as the Hubbell respondent’s “exhaustive use of the ‘contents of his

mind’ ” to produce hundreds of pages of responsive documents. The two scenarios appear to bear

no resemblance to each other.

¶ 60 We share the concerns expressed in Stahl and Andrews and observe that, given the

advancements in technology, a cell phone passcode is more akin to a key to a strongbox than a

combination to a safe. Or, at the very least, perhaps in this digital age the distinction between a

physical key and a combination to a safe has become blurred, with a cellular phone passcode

encompassing both. This blurring of distinctions would diminish the analytical value of the

analogy that so many courts have relied on to hold that the act of providing a passcode is

testimonial.

¶ 61 Moreover, at least one federal court has hinted that the act of unlocking a phone

may not be testimonial if (1) no dispute exists that the suspect owns the phone, (2) the suspect is

not asked to reveal the passcode to the police, and (3) the suspect makes the contents of her cell

phone accessible to the police by entering it herself without telling the police the passcode. See

United States v. Oloyede, 933 F.3d 302, 309 (4th Cir. 2019) (“[Defendant] has not shown that her

act communicated her cell phone’s unique passcode. Unlike a circumstance, for example, in which

she gave the passcode to an agent for the agent to enter, here she simply used the unexpressed

contents of her mind to type in the passcode herself.”). In Oloyede, the defendant entered the

passcode herself and gave the unlocked phone to the police officer. Id. at 308. The officer did not

ask for the passcode or observe the defendant enter the passcode, and the defendant did not reveal

the passcode to the police. Id. Similarly, in the case before us, the State is requesting an order that

the defendant “provide entry” to his cell phone. That means that defendant, like the defendant in

Oloyede, could simply enter his passcode into his phone and thereby make its contents accessible

- 16 - to the police without ever telling the police the passcode.

¶ 62 Notably, the trial court in this case, when ruling on the State’s motion, expressed

its belief that the facts here were “no different than compelling a Defendant to disclose a key to a

storage unit or a lockbox or something of that nature.” The court then observed, “Here, disclosing

the passcode would not seem to make extensive use of the contents of the Defendant’s mind” and

expressed its opinion that “an objective, reasonable judge could reach the conclusion that the

production of the pass code is not testimonial.” However, the court correctly acknowledged that it

was obligated to follow the Third District’s holding in Spicer that the production of a passcode is

testimonial because no other Illinois court of review had yet spoken on the issue.

¶ 63 For the reasons stated, we conclude that requiring defendant to provide entry or the

passcode to the phone does not compel him to provide testimony within the meaning of the fifth

amendment.

¶ 64 b. The Foregone Conclusion Doctrine

¶ 65 The State also argues that even if we conclude that the act of providing entry or the

passcode to defendant’s phone is testimonial, the foregone conclusion doctrine applies. The State

contends the trial court erred in its application of the foregone conclusion doctrine because it

equated the act of providing access to the phone with the act of collecting the evidence from the

phone. Defendant responds that the trial court properly found the foregone conclusion doctrine did

not apply because the State did not establish that, at the time it requested production, it knew of

the existence, possession, and authenticity of the information it sought within the phone.

¶ 66 We agree with the State that the foregone conclusion doctrine applies. This

conclusion is a second and separate reason for holding that the trial court erred by denying the

State’s motion.

- 17 - ¶ 67 i. The Proper Focus of the Foregone Conclusion Analysis

¶ 68 (a) Passcode vs. Contents of the Phone

¶ 69 The parties’ initial disagreement centers upon whether a court conducting a

foregone conclusion analysis should focus on (1) the compelled communication itself (i.e., the

entry of the passcode) or (2) the information to be revealed by the entry of the passcode. One

scholar has helpfully described these competing focuses as (1) the act that opens the door and

(2) the treasure that lies beyond the door. See Orin S. Kerr, Compelled Decryption and the

Privilege Against Self-Incrimination, 97 Tex. L. Rev. 767, 777 (2019).

¶ 70 Courts are also split on this issue. Several courts have held that the proper focus of

the foregone conclusion analysis is on the testimonial value of the act of producing the passcode.

See Andrews, 234 A.3d at 1273 (“[W]e find that the foregone conclusion test applies to the

production of the passcodes themselves, rather than to the phones’ contents.”); Stahl, 206 So. 3d

at 136 (“[T]he relevant question is whether the State has established that it knows with particularity

that the passcode exists, is within the accused’s possession or control, and is authentic.”); Gelfgatt,

11 N.E.3d at 615 (“[W]e conclude that the factual statements that would be conveyed by the

defendant’s act of entering an encryption key in the computers are ‘foregone conclusions’ and,

therefore, the act of decryption is not a testimonial communication that is protected by the Fifth

Amendment.”); State v. Johnson, 576 S.W.3d 205, 227 (Mo. 2019) (“The focus of the foregone

conclusion exception is the extent of the State’s knowledge of the existence of the facts conveyed

through the compelled act of production. Here, [defendant] was ordered to produce the passcode

to his phone.”); Commonwealth v. Jones, 117 N.E.3d 702, 710 (Mass. 2019) (“[F]or the foregone

conclusion exception to apply, the Commonwealth must establish that it already knows the

testimony that is implicit in the act of the required production. [Citation.] In the context of

- 18 - compelled decryption, the only fact conveyed by compelling a defendant to enter the password to

an encrypted electronic device is that the defendant knows the password, and can therefore access

the device.”).

¶ 71 Other courts have placed the focus of the foregone conclusion analysis on the files

stored on the device. See In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670

F.3d at 1346 (“Nothing in the record before us reveals that the Government knows whether any

files exist and are located on the hard drives ***.”); Seo v. State, 148 N.E.3d 952, 958 (Ind. 2020)

(“This leads us to the following inquiry: has the State shown that (1) [defendant] knows the

password for her iPhone; (2) the files on the device exist; and (3) she possessed those files?”);

G.A.Q.L., 257 So. 3d at 1063 (“It is not the verbal recitation of a passcode, but rather the

documents, electronic or otherwise, hidden by an electronic wall that are the focus of this

exception.”).

¶ 72 (b) People v. Spicer: Focus on the Contents of the Phone

¶ 73 The only Illinois court to consider the application of the foregone conclusion

doctrine in the context of a motion to compel production of a cell phone passcode is Spicer. In

Spicer, the defendant was pulled over for a traffic violation. Spicer, 2019 IL App (3d) 170814, ¶ 3.

A drug dog alerted on the vehicle, and officers found a pill bottle containing cocaine inside a bag

in the area where the defendant had been sitting. Id. ¶ 5. The police arrested the defendant for

possession of a controlled substance, and the State later charged him with possession with intent

to deliver. Id. ¶ 3. The police obtained a search warrant for a cell phone they seized from the

defendant during his arrest. Id. ¶ 4. After the defendant declined to provide the passcode to the

phone, the State filed a motion to compel its production. Id.

¶ 74 The Third District concluded the foregone conclusion exception did not apply

- 19 - because the State did not establish with reasonable particularity “the contents of the phone.” Id.

¶ 21. In framing its analysis, the court noted that “Illinois courts [had] not decided whether

compelling a defendant to provide his passcode is testimonial,” and acknowledged the analytical

split among foreign jurisdictions on the issue. Id. ¶¶ 16-17. For guidance, the Third District looked

to a case from the Florida District Court of Appeals, G.A.Q.L., 257 So. 3d at 1062, which examined

the compelled production of an iTunes password. Spicer, 2019 IL App (3d) 170814, ¶ 19.

¶ 75 In G.A.Q.L., the court first determined that the compelled production of the

password was testimonial because it necessitates the use of the mind. G.A.Q.L., 257 So. 3d at 1062.

The court next determined that “the object of the foregone conclusion exception is not the

password itself, but the data the state seeks behind the passcode wall.” Id. at 1063. The court then

held that foregone conclusion doctrine did not apply because the State “fail[ed] to identify any

specific file locations or even name particular files that it [sought] from the *** passcode-protected

phone.” Id. at 1064. Instead, it “generally [sought] essentially all communications, data, and

images on the locked iPhone” based on “the prosecutor’s statement at the hearing that the surviving

passenger [of a DUI-related accident] had been communicating with [the defendant] via Snapchat

and text message on the day of the accident and after the accident.” Id.

¶ 76 The Third District found G.A.Q.L. persuasive and held that the focus of a foregone

conclusion analysis should be placed on the contents of the phone instead of the production of the

passcode. Spicer, 2019 IL App (3d) 170814, ¶ 21.

¶ 77 In applying this analytical framework to the facts before it, the Third District

concluded that the State “does not know what information might be on [the defendant’s] phone

but surmises that cell phones are often used in unlawful drug distribution and such information

would be available on [the defendant’s] phone.” Id. ¶ 22. The court noted that the search warrant

- 20 - permitted the State to access “most of the information” on the defendant’s phone, and the State

“[did] not identify any documents or specific information it [sought] with reasonable particularity.”

Id.

¶ 78 We view Spicer and G.A.Q.L. as factually distinguishable. In contrast to those

cases, here, the State has described with reasonable particularity the information it seeks.

¶ 79 Ummel testified he believed he would find on defendant’s phone photographs of

the false paychecks and evidence of their electronic deposit. Ummel also testified he observed

photographs of the false paychecks, which were payable to defendant and endorsed in defendant’s

name for mobile deposit to Citibank and Varo Bank. Ummel also observed Spurling’s text message

to Schlesinger, which stated that defendant deposited the checks by mobile deposit. Ummel also

explained that mobile deposit involves taking a photograph of a check and sending it electronically

to a financial institution.

¶ 80 Dairy Queen’s bank records confirmed that the false paychecks were deposited in

this manner and the funds were missing from Dairy Queen’s accounts. In other words, Ummel

described the documents and evidence he was looking for and explained why he expected it to be

found on defendant’s phone.

¶ 81 In addition to viewing Spicer and G.A.Q.L. as factually distinguishable, we also do

not believe—for reasons we discuss in greater detail infra, ¶¶ 82-95—that the Third District was

correct to conclude that the focus of the foregone conclusion doctrine is properly placed on the

information on the phone. On that issue, we find more persuasive the reasoning of the New Jersey

Supreme Court in Andrews, 234 A.3d at 1273, which held that “the foregone conclusion test

applies to the production of the passcodes themselves, rather than to the phones’ contents.”

¶ 82 (c) State v. Andrews: Focus on the Passcode

- 21 - ¶ 83 In Andrews, the defendant was a former sheriff’s deputy who was charged with

official misconduct for revealing the existence of an undercover narcotics investigation to its

target. Id. at 1261. According to the target, the defendant also advised him to (1) remove a tracking

device from his vehicle and (2) discard cell phones. Id. at 1259. The communications occurred

largely through the iPhone FaceTime application and text messages. Id. at 1260. The State seized

the defendant’s cell phones and obtained a warrant to search them but was unable to access the

phones’ contents without the passcodes. Id. at 1261. The State moved to compel the defendant to

disclose the passcodes to his two phones. Id.

¶ 84 In considering whether the fifth amendment protected the defendant from

disclosing the passcodes to his phones, the court first examined the history of the fifth amendment

privilege in the context of compelled communications, including United States v. Doe, 465 U.S.

605 (1984) (Doe I), Fisher, and Hubbell. Andrews, 234 A.3d at 1266-69. The court noted that these

cases all involved the production of documents and gave rise to the inference that the act of

production “must be considered in its own right, separate from the documents sought.” Id. at 1269

(citing Fisher, 425 U.S. at 410 (“The act of producing evidence *** has communicative aspects of

its own, wholly aside from the contents of the papers produced.”), Doe I, 465 U.S. at 612

(“Although the contents of a document may not be privileged, the act of producing the document

may be.”), and Hubbell, 530 U.S. at 40 (“The ‘compelled testimony’ that is relevant in this case is

not to be found in the contents of the documents produced in response to the subpoena. It is, rather,

the testimony inherent in the act of producing those documents.”)).

¶ 85 The Andrews court concluded, “To be consistent with the Supreme Court case law

that gave rise to the exception, we find that the foregone conclusion test applies to the production

of the passcodes themselves, rather than to the phones’ contents.” Andrews, 234 A.3d at 1273.

- 22 - ¶ 86 (d) Our Conclusion: The Focus Is on the Passcode

¶ 87 We agree with Andrews and find further support for its conclusion in Doe II, in

which the Supreme Court rejected “[p]etitioner’s blanket assertion that a statement is testimonial

for Fifth Amendment purposes if its content can be used to obtain evidence” because it “confuses

the requirement that the compelled communication be ‘testimonial’ with the separate requirement

that the communication be ‘incriminating.’ ” Doe II, 487 U.S. at 208 n.6. As the Supreme Court

observed, “If a compelled statement is not testimonial and for that reason not protected by the

privilege, it cannot become so because it will lead to incriminating evidence.” (Internal quotation

marks omitted.) Id. at 208 n.6.

¶ 88 Additionally, the Hubbell court noted, “Whether the constitutional privilege ***

protects the act of production itself, is a question that is distinct from the question whether the

unprotected contents of the documents themselves are incriminating.” Hubbell, 530 U.S. at 37.

¶ 89 Placing the focus of the foregone conclusion doctrine on the passcode rather than

the documents or evidence contained on the phone appears to strike the most appropriate balance

between fifth amendment concerns and fourth amendment concerns. In this case, the State’s

motion seeks the compelled production of the passcode. The production of the passcode will lead

to the contents of the phone, for which the State has obtained a valid search warrant that defendant

does not challenge.

¶ 90 In ruling on the State’s motion to compel, the trial court addressed whether “the

evidence sought for purposes of the foregone conclusion doctrine consist[s] of the pass code or the

contents of the phone.” The court observed, “perhaps the better-reasoned argument is that *** the

foregone conclusion exception should only apply to the pass code,” but again acknowledged its

obligation, in the absence of any binding authority to the contrary, to follow the Third District’s

- 23 - holding in Spicer.

¶ 91 In applying the Third District’s analytical framework (placing the focus on the

contents of the phone rather than the passcode), the trial court observed that, to obtain a search

warrant, the State “must articulate with particularity the person and place to be searched and the

person and things to be seized. But for the foregone conclusion exception to apply, the State must

know—it requires knowledge, but that knowledge is qualified with reasonable particularity.” This

observation illustrates how the Spicer approach conflates the act of production with the contents

of the phone. That is to say, it allows the fifth amendment to swallow the fourth amendment,

thereby permitting a suspect to “hide” behind a passcode evidence to which the State is lawfully

entitled pursuant to the issuance of the search warrant.

¶ 92 The contents of the phone are protected by the fourth amendment, and in this case,

the State followed proper procedures to obtain a valid search warrant to seize that information.

The testimonial value of the act of producing the passcode—a series of letters or numbers which

“opens the door” to permit the State to execute that valid warrant—must be analyzed separately

from the State’s authority to seize the evidence on the phone. And it bears repeating that defendant

does not challenge the probable cause supporting the search warrant that authorizes seizure of the

contents of his phone. Instead, he seeks to utilize the fifth amendment to prevent the operation of

the fourth amendment, which authorizes (as here) the issuance of a search warrant based upon a

verified complaint showing probable cause for the presence of evidence of a crime in the premises

(here, the cell phone) to be searched.

¶ 93 By focusing (1) the fifth amendment analysis on the production of the passcode and

(2) the fourth amendment analysis on the evidence contained on the phone, one constitutional

provision does not become either superior or subservient to the other. Further, doing so ensures

- 24 - that the protection against compelled self-incrimination and the interests of law enforcement in

executing a valid search warrant are both respected.

¶ 94 These considerations provide further support for our conclusion that the Third

District in Spicer erroneously relied on the faulty reasoning of the G.A.Q.L. court to hold that the

proper focus of a foregone conclusion analysis is on the contents of the phone instead of the

production of the passcode. Spicer, 2019 IL App (3d) 170814, ¶ 21. The G.A.Q.L. court reasoned

that the phone’s contents is where the proper focus should lie because that is what the government

truly seeks, not the passcode itself. G.A.Q.L., 257 So. 3d at 1062. However, as illustrated above,

this reasoning conflates fourth amendment concerns with fifth amendment concerns.

¶ 95 As the Fisher court explained,

“We cannot cut the Fifth Amendment completely loose from the moorings

of its language, and make it serve as a general protector of privacy[,] a word not

mentioned in its text and a concept directly addressed in the Fourth Amendment.

We adhere to the view that the Fifth Amendment protects against ‘compelled self-

incrimination, not (the disclosure of) private information.’ ” Fisher, 425 U.S. at 401

(quoting United States v. Nobles, 422 U.S. 225, 233 n.7 (1975)).

¶ 96 We acknowledge the Illinois Supreme Court’s recent decision in People v.

McCavitt, 2021 IL 125550, ¶ 4, which addressed “a person’s reasonable expectation of privacy in

data on an electronic storage device that is subject to search” and “the fourth amendment’s

particularity requirement as applied to electronic storage devices.” However, in the case before us,

defendant has not challenged the validity of the search warrant, which authorizes the State to seize

the contents of his phone. McCavitt does not address the application of the fifth amendment where

a phone that is the subject of a lawful search warrant is passcode-protected and the owner of the

- 25 - phone declines to provide the passcode.

¶ 97 ii. Application of the Foregone Conclusion Doctrine to This Case

¶ 98 Applying these principles to the case before us, for the forgone conclusion doctrine

to apply, the State must establish with reasonable particularity (1) it knows the passcode exists,

(2) the passcode is within the defendant’s possession or control, and (3) the passcode is authentic.

See Andrews, 234 A.3d at 1274-75; Stahl, 206 So. 3d at 136.

¶ 99 Ummel testified that (1) the phone is locked by a security passcode, (2) defendant

has not provided him with the passcode, and (3) Ummel does not have the technology to “crack”

the passcode. This evidence establishes with reasonable particularity that a passcode for the phone

exists.

¶ 100 Ummel further testified that one phone was retrieved from defendant and another

was retrieved from Spurling. Defendant provided his phone number on a jail form when bonding

out. When Ummel dialed that phone number, the phone Ummel identified as belonging to

defendant in the complaint for search warrant would ring. This evidence establishes with

reasonable particularity that defendant has had possession or control of the phone and, accordingly,

has possession or control of the passcode required to access and utilize the phone.

¶ 101 Last, the courts in Andrews and Stahl addressed the authenticity element in the

context of a cell phone passcode, noting that a passcode is self-authenticating. Stahl, 206 So. 3d at

136; Andrews, 234 A.3d at 1275. That is, if the passcode provides entry to the phone, the passcode

is authentic. Stahl, 206 So. 3d at 136; Andrews, 234 A.3d at 1275. Therefore, the authenticity

element will be determined when the passcode is entered into the phone.

¶ 102 Accordingly, the State has shown with reasonable particularity that the passcode

exists and is within defendant’s possession or control. The passcode will self-authenticate if it

- 26 - unlocks the phone. As such, the foregone conclusion doctrine is satisfied, rendering the act of

producing the passcode non-testimonial and outside the protection of the fifth amendment

privilege against self-incrimination.

¶ 103 Even applying Spicer’s analytical framework to the facts of this case, the foregone

conclusion doctrine applies because, as discussed supra, ¶¶ 78-80, the State has also established

with reasonable particularity the “contents of the phone.”

¶ 104 c. Evidence of the Act of Production at Trial

¶ 105 At the hearing on the motion to compel, and in its brief before this court, the State

represented that it would not use at trial evidence of defendant’s act of production of the passcode.

The State explained that it “doesn’t need an intricate pass code to prove ownership of the phone

or its contents.” That is precisely the point of the foregone conclusion doctrine; the testimony

implied by the act of producing the passcode—i.e., the defendant has knowledge of the passcode—

“adds little or nothing to the sum total of the Government’s information.” Fisher, 425 U.S. at 411.

¶ 106 We agree with the State that the defendant’s knowledge of the phone’s passcode

and his knowledge of the phone’s contents are two different things. Because of the commitment

the State has made to the trial court—namely, that it will not use evidence of defendant’s act of

production at trial—the State will be required to prove defendant’s knowledge of the phone’s

contents through other means. And on remand, the State’s commitment is enforceable by the trial

court.

¶ 107 III. CONCLUSION

¶ 108 For the reasons stated, we reverse the judgment of the trial court and remand for

further proceedings consistent with this opinion.

¶ 109 Reversed and remanded.

- 27 - - 28 - No. 4-21-0180

Decision Under Review: Appeal from the Circuit Court of De Witt County, No. 21-CF-13; the Hon. Karle E. Koritz, Judge, presiding.

Attorneys Daniel Markwell, State’s Attorney, of Clinton (Patrick Delfino, for David J. Robinson, David E. Mannchen, and James C. Majors, of Appellant: State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Attorneys James E. Chadd, Catherine K. Hart, and Joshua Scanlon, of State for Appellate Defender’s Office, of Springfield, for appellee. Appellee:

- 29 -