People v. Sneed , 2023 IL 127968 ( 2023 )

2023 IL 127968IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 127968)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
KEIRON K. SNEED, Appellant.
Opinion filed June 15, 2023.
JUSTICE OVERSTREET delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Holder White, Cunningham, and Rochford
concurred in the judgment and opinion.
Justice Neville dissented, with opinion.
Justice O’Brien took no part in the decision.
OPINION
¶1 Defendant, Keiron K. Sneed, was charged in the circuit court of De Witt County
with two counts of forgery (720 ILCS 5/17-3(a)(1) (West 2020)). The charges
stemmed from the discovery of two false paychecks that were payable to defendant,
endorsed by him, and cashed and/or deposited via mobile deposit. Police procured
a search warrant for defendant’s cell phone but were unable to execute the warrant
because the cell phone was passcode protected and defendant refused to provide
the passcode. Accordingly, the State filed a motion to compel production of the cell
phone’s passcode.
¶2 The circuit court found the fifth amendment privilege against self-incrimination
prevented the State from compelling defendant to provide the passcode, as doing
so would constitute compelling incriminating testimonial communication. See U.S.
Const., amend. V. The circuit court further concluded that the foregone conclusion
doctrine did not apply as an exception to bypass the fifth amendment privilege.
Therefore, the circuit court denied the State’s motion to compel production. 1 The
State filed a certificate of substantial impairment, and the matter proceeded to the
appellate court.
¶3 After determining that it had jurisdiction over the appeal pursuant to Illinois
Supreme Court Rule 604(a)(1) (eff. July 1, 2017) (2021 IL App (4th) 210180, ¶ 30),
the appellate court concluded that the act of producing a cell phone’s passcode is
not an incriminating, testimonial communication under the fifth amendment and is
therefore not privileged (id. ¶ 63). It further concluded that the foregone conclusion
doctrine applied, 2 rendering the act of producing the passcode outside the scope of
fifth amendment protection. Id. ¶ 102. The appellate court reversed the circuit
court’s order and remanded for further proceedings. Id. ¶ 108. We now affirm the
judgment of the appellate court, albeit on different grounds.
¶4 I. BACKGROUND
¶5 On February 8, 2021, defendant was charged by information with two counts
of forgery (720 ILCS 5/17-3(a)(1) (West 2020)). The information alleged that
1
The circuit court issued its ruling orally at the conclusion of the hearing on the motion to
compel, and a docket entry reflects that the circuit court denied the motion. The record does not
include a written order.
2
Finding the compelled act of producing the passcode was nontestimonial rendered a foregone
conclusion analysis unnecessary. Yet the appellate court considered the issue, asserting its
conclusion that the doctrine applied as “a second and separate reason” that the circuit court erred in
denying the State’s motion to compel.
-2-
defendant created two false paychecks from Dairy Queen with the intent to defraud
Dairy Queen and financial institutions. Defendant and his wife, Allora Spurling
Sneed (Spurling), were both arrested in connection with the false paychecks. Upon
their arrest, officers seized two cell phones—one from defendant and one from
Spurling.
¶6 A. Search Warrant
¶7 On March 1, 2021, Detective Todd Ummel of the Clinton Police Department
applied for a search warrant to search the content of both phones. The complaint
for search warrant provided as follows. On January 5, 2021, Sara Schlesinger—a
bookkeeper for Dairy Queen in Clinton, Illinois—reported that she discovered a
paycheck in the amount of $274.33, payable to defendant. Spurling was an
employee of Dairy Queen at the time, but defendant was not. The paycheck had
been cashed via Citibank mobile deposit. Schlesinger provided text messages
between herself and Spurling, in which Spurling acknowledged a forged paycheck
but claimed that “it wasn’t meant to happen for real. It [sic] was being curious and
he didn’t think it would actually work cuz [sic] it wasn’t real. *** But please know
I had no clue about it[.]” Schlesinger confirmed that funds in the amount of the
paycheck were deducted from Dairy Queen’s account at State Bank of Lincoln.
¶8 The complaint for search warrant further provided that Ummel attempted to
interview Spurling, who agreed to meet him on January 7, 2021. However, Spurling
did not attend the meeting, claiming she had been exposed to COVID-19. The
meeting was rescheduled, but Spurling did not attend, and additional attempts to
contact her were unsuccessful.
¶9 On February 8, 2021, Schlesinger provided police an additional forged
paycheck payable to defendant in the amount of $423.22, which was also deducted
from Dairy Queen’s account via mobile deposit. According to the endorsement on
the back of the check, the amount was to be deposited to Varo Bank.
¶ 10 Ummel’s complaint for search warrant sought the following:
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“Any and all evidence related to the forging and transmission of paychecks
drawn upon the State Bank of Lincoln from the account of Dairy Queen ***, as
well as any other forged checks to include:
Photographs and records of paychecks from Dairy Queen
Records of messages sent from the phones of [defendant] and [Spurling]
pertaining to the forged paychecks from text messaging applications or other
messaging applications such as Facebook, WhatsApp, etc.
Confirmations of deposits from [Citibank], Varo Bank, and any other banks
Emails, messages, and application notifications pertaining to the deposit of
checks.”
¶ 11 On March 1, 2021, the circuit court issued a search warrant granting officers
permission to search both phones. 3
¶ 12 B. State’s Motion to Compel
¶ 13 On March 5, 2021, the State filed a motion to compel production of the
passcode to defendant’s cell phone. The motion alleged that officers were unable
to execute the search warrant because defendant’s phone was passcode protected.
As such, the State requested the circuit court to compel defendant to either provide
the passcode or to enter the passcode into his phone. On March 23, 2021, the circuit
court conducted a hearing on the motion to compel. At the hearing, Detective
Ummel testified that Schlesinger contacted the Clinton Police Department on
January 5, 2021, reporting that defendant had cashed fraudulent checks on Dairy
Queen’s account via mobile deposit from a cell phone. Ummel explained that a
mobile deposit consists of photographing a check and submitting it electronically
to a financial institution for deposit.
3
Though both phones were seized and the search warrant issued for both, this appeal pertains
only to defendant’s phone. As such, we limit the balance of our discussion to defendant’s phone.
-4-
¶ 14 Ummel indicated that he had reviewed photographs of the checks, both of which
were payable to and endorsed by defendant. 4 Ummel testified that Spurling
admitted via text message that defendant cashed the checks but “[i]t was only a
joke, she said,” because defendant did not believe the counterfeit checks would
successfully deposit. Ummel confirmed that defendant was not a Dairy Queen
employee but that Spurling had been and was terminated after the subject events
transpired. Ummel indicated that Dairy Queen’s bank statements reflected that
funds in the amounts of the checks had been deducted from Dairy Queen’s account.
¶ 15 Ummel believed defendant’s phone contained a photograph of the checks, and
he was “hoping to find” such a photograph. Ummel further sought additional files
pertaining to the mobile deposits. He conceded, however, that he did not know for
certain that any such files existed and that there was currently nothing connecting
defendant to the transactions besides Spurling’s statements. Ummel added that he
had not attempted to subpoena records from defendant’s cell phone carrier to obtain
copies of text messages.
¶ 16 Ummel testified that officers were unable to execute the search warrant because
defendant’s phone was passcode protected and defendant refused to provide the
passcode. Ummel explained that he was exercising caution, as he knew that too
many failed attempts to open a cell phone with the incorrect passcode will
permanently lock the phone. Ummel indicated that Clinton Police Department did
not have “cell phone cracking” technology and that Illinois State Police would not
assist in doing so unless the case involved narcotics. Ummel testified that defendant
completed a bond form after his arrest and provided a phone number that matched
the seized phone.
¶ 17 C. Circuit Court’s Judgment
¶ 18 The circuit court observed that the fifth amendment applies when the accused
is compelled to make an incriminating, testimonial communication. See Hiibel v.
District Court of Nevada, 542 U.S. 177, 189 (2004). It further observed that an act
of production is testimonial for fifth amendment purposes when the accused is
4
The record is devoid of further information about these photographs or any additional details
regarding Ummel viewing them.
-5-
compelled to make extensive use of his own mind to communicate a statement of
fact. See United States v. Hubbell, 530 U.S. 27, 43 (2000). The circuit court stressed
that the testimonial nature of compelling the production of the passcode was
diminished in this case because the phone was found on defendant’s person and the
bond sheet reflected that defendant identified the phone number associated with the
phone as his phone number. The circuit court indicated that, under these facts,
defendant’s knowledge of the passcode did not provide any further evidence against
him than that which already existed and that producing the passcode would not
seemingly make extensive use of the contents of defendant’s mind. The circuit court
opined that disclosing the passcode was “no different than compelling a [d]efendant
to disclose a key to a storage unit or a lockbox or something of that nature.”
¶ 19 The circuit court asserted that “an objective, reasonable judge could reach the
conclusion that the production of the [passcode] is not testimonial.” However, it
emphasized that it was obligated to follow the precedent established by the
Appellate Court, Third District, in People v. Spicer, 2019 IL App (3d) 170814,
which made clear that the compelled production of a cell phone passcode is
testimonial and thus privileged under the fifth amendment, and for purposes of the
foregone conclusion exception (see Fisher v. United States, 425 U.S. 391, 411
(1976)), the proper focus is not on the passcode but on the information protected
by the passcode.
¶ 20 Applying those principles, the circuit court observed that Spurling’s statements
were the only evidence linking defendant’s phone to the transactions in question
and it would be speculative to presume that a photograph of the checks would
remain on the phone after the transactions were complete. Though the circuit court
did not perceive the State’s endeavor as a fishing expedition, it concluded that the
State did not establish with reasonable particularity that, at the time it sought the
act of production, it knew the evidence existed, the evidence was in defendant’s
possession, and the evidence was authentic. See Hubbell, 530 U.S. at 40-41. On
that basis, the circuit court concluded that the foregone conclusion doctrine did not
apply as an exception to bypass the protections of the fifth amendment and denied
the State’s motion to compel. The State filed a certificate of substantial impairment,
and the matter proceeded to the appellate court.
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¶ 21 D. Appellate Court’s Judgment
¶ 22 The Appellate Court, Fourth District, accepted the State’s good-faith evaluation
in its certificate of substantial impairment, which indicated that the circuit court’s
order substantially impaired its ability to prosecute the case. 2021 IL App (4th)
210180, ¶¶ 33-34. The appellate court agreed that the order was “like an order
suppressing evidence” and concluded it had jurisdiction to consider the appeal
under Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2017). 2021 IL App (4th)
210180, ¶ 34.
¶ 23 In considering the merits, the appellate court recognized that the circuit court
concluded as it did because it was bound by Spicer, which was the only Illinois
precedent on the issue. Id. ¶ 62. In Spicer, a cell phone was found on the
defendant’s person when he was searched incident to arrest. 2019 IL App (3d)
170814, ¶ 4. Officers procured a search warrant for the phone. Id. The phone was
passcode protected, and because the defendant refused to provide the passcode, the
State filed a motion to compel the defendant to produce the passcode. Id. The circuit
court denied the motion to compel, finding the State’s request implicated
defendant’s fifth amendment right against self-incrimination. Id. ¶ 7. The circuit
court further found the foregone conclusion exception did not apply because the
State did not know what evidence was on the phone but had merely indicated the
phone “probably” contained incriminating evidence. Id.
¶ 24 At the time of the Spicer litigation, there was no Illinois precedent on the issue.
Id. ¶ 16. Accordingly, the Spicer court observed G.A.Q.L. v. State, 257 So. 3d 1058,
1060 (Fla. Dist. Ct. App. 2018), in which the State of Florida moved to compel the
defendant to provide passcodes to his phone and iTunes account. The circuit court
granted the motions to compel. Id. The reviewing court in G.A.Q.L. found that
compelling the production of the passcodes resulted in “ ‘implied factual
statements’ ” and necessitated using the mind, not to “obtain[ ] the decryption for
its own sake, but for the purpose of obtaining the files protected by the encryption.”
Id. at 1062 (quoting In re Grand Jury Subpoena Duces Tecum Dated March 25,
2011, 670 F.3d 1335, 1346 (11th Cir. 2012)). Finding the State did not seek the
passcodes but information on the phone, the reviewing court determined that the
defendant was compelled to use his mind and demonstrate the fact that he could
access his phone. Id. On that basis, the reviewing court concluded that compelling
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the defendant to reveal the passcodes was testimonial for fifth amendment
purposes. Id. at 1062-63.
¶ 25 After determining that the act of producing the passcodes was testimonial, the
G.A.Q.L. court examined the foregone conclusion doctrine. Id. at 1063. In doing
so, the court focused on the contents of the phone rather than the passcode and
concluded that the foregone conclusion exception did not apply because the State
failed to show that it knew with reasonable particularity the existence of the
contents of the phone. Id. at 1064-65. The court indicated it was insufficient to
merely infer that any evidence existed but, rather, the State must identify with
reasonable particularity what evidence existed beyond the passcode wall. Id. at
1064.
¶ 26 The Spicer court adopted the analysis and conclusion of G.A.Q.L., asserting that
likewise, in its case, the State was not pursuing the passcode itself but information
beyond the passcode wall. Spicer, 2019 IL App (3d) 170814, ¶ 21. The Spicer court
noted contrary decisions finding the foregone conclusion exception applicable
because the focus in those cases was on the passcode. Id. Conversely, the Spicer
court concluded that the proper focus is on the information the passcode protects
rather than on the passcode itself. Id. Applied to its case, the Spicer court indicated
that the State was required to show the information on the phone with reasonable
particularity but that it failed to do so. Id. Thus, the Spicer court concluded that the
foregone conclusion exception did not apply to bypass the protections of the fifth
amendment. Id. ¶ 22.
¶ 27 In this case, the appellate court declined to follow Spicer and concluded that the
compelled production of the passcode is nontestimonial, reasoning that a passcode
may be used so often that retrieving it “is a function of muscle memory rather than
an exercise of conscious thought.” 2021 IL App (4th) 210180, ¶ 59. The appellate
court asserted that “a cell phone passcode is more akin to a key to a strongbox than
a combination to a safe.” Id. ¶ 60. See Doe v. United States, 487 U.S. 201, 210 n.9
(1988) (compelling the execution of an authorization is more like surrendering a
key than revealing a combination to a safe); cf. Hubbell, 530 U.S. at 43 (compiling
hundreds of documents analogous to revealing the combination to a wall safe rather
than surrendering a key to a strongbox).
-8-
¶ 28 The appellate court further observed United States v. Oloyede, 933 F.3d 302,
309 (4th Cir. 2019), which suggested that unlocking a phone may not be testimonial
if (1) it is settled the defendant owns the phone, (2) the defendant is not requested
to reveal the passcode to officers, and (3) the defendant makes the contents of the
phone accessible to officers by entering the passcode without revealing it. 2021 IL
App (4th) 210180, ¶ 61. Applying Oloyede here, the appellate court observed the
State requested an order for defendant to “provide entry” to his phone, meaning that
defendant—like the Oloyede defendant—could enter the passcode and make its
contents accessible without revealing it to officers. Id. For these reasons, the
appellate court concluded that compelling defendant to produce the passcode was
nontestimonial for purposes of the fifth amendment. Id. ¶ 63.
¶ 29 Though the appellate court found the act of producing the passcode is
nontestimonial—thus rendering a foregone conclusion analysis unnecessary—it
nevertheless considered the foregone conclusion doctrine as a “second and separate
reason for holding that the trial court erred by denying the State’s motion.” Id. ¶ 66.
The appellate court found that, in applying the foregone conclusion doctrine, the
Spicer court erroneously focused on the contents of the phone. Id. ¶ 81. Opposing
Spicer, the appellate court held that the foregone conclusion test applies to the act
of producing the passcode rather than to the phone’s contents. Id.
¶ 30 Under that framework, the appellate court indicated that, for the foregone
conclusion exception to apply, the State must show with reasonable particularity
that “(1) it knows the passcode exists, (2) the passcode is within the defendant’s
possession or control, and (3) the passcode is authentic.” Id. ¶ 98. The appellate
court found the State met that burden and concluded that the foregone conclusion
exception applied, rendering the act of producing the passcode outside the purview
of fifth amendment protection. Id. ¶ 102. The appellate court reversed the judgment
of the circuit court and remanded for further proceedings. Id. ¶ 108. This court
allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Oct. 1,
2021).
¶ 31 II. ANALYSIS
¶ 32 Defendant raises the following issues on appeal, which we have restated as
follows: (a) whether the circuit court’s order is appealable under Rule 604(a)(1)
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and (b) whether, if compelling defendant to produce the passcode to his cell phone
implicates the fifth amendment privilege against self-incrimination, the foregone
conclusion doctrine applies as an exception to that privilege.
¶ 33 Before proceeding with our analysis, we acknowledge that this court granted a
motion of Indiana, Arkansas, Florida, Idaho, Louisiana, Minnesota, Mississippi,
New Jersey, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota,
Utah, and Virginia (collectively, amici states) to file an amicus curiae brief in
support of the State’s position on appeal. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
Besides agreeing with the State that an order compelling a defendant to unlock a
cell phone does not violate the fifth amendment where the knowledge of the
passcode is a foregone conclusion, the amicus curiae brief also focuses on securing
assistance with unlocking encrypted devices, which the amici states perceive as
important for the effective investigation, prosecution, and prevention of crimes.
¶ 34 We also granted a motion of the American Civil Liberties Union of Illinois, the
Electronic Frontier Foundation, the National Association of Criminal Defense
Lawyers, and the Illinois Association of Criminal Defense Lawyers to file an
amicus curiae brief in support of defendant’s stance that compelling a defendant to
enter a passcode is testimonial under the fifth amendment and that the foregone
conclusion doctrine does not apply as an exception to the fifth amendment
privilege. We bear in mind the respective positions of the amici as we proceed with
our analysis of the issues on appeal.
¶ 35 A. Jurisdiction
¶ 36 At the outset, we consider whether the circuit court’s judgment is appealable
under Rule 604(a)(1). “ ‘Under the 1970 Illinois Constitution, the final authority to
prescribe the scope of interlocutory appeals by the State in a criminal case rests
exclusively with this court [citation], and whether a particular order may be
appealed depends solely upon our construction of our Rule 604(a)(1).’ ” People v.
Drum, 194 Ill. 2d 485, 488 (2000) (quoting People v. Young, 82 Ill. 2d 234, 239
(1980)). Like a statute, the interpretation of a supreme court rule is a question of
law requiring de novo review. Id.- 10 -
¶ 37 Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2017) limits State appeals in
criminal cases, providing, in relevant part: “In criminal cases the State may appeal
only from an order or judgment the substantive effect of which results in ***
quashing [a] *** search warrant[, or] suppressing evidence ***.” The State’s appeal
is also limited to orders that substantially impair the prosecution. Young, 82 Ill. 2d
at 247. Accordingly, an interlocutory appeal by the State is permitted under Rule
604(a)(1) when the substantive effect of the underlying order results in quashing a
search warrant or suppressing evidence and when the prosecutor certifies that the
order “substantially impairs the State’s ability to prosecute the case.” Id.¶ 38 In examining a certificate of substantial impairment, this court “rel[ies] solely
upon the good-faith evaluation by the prosecutor of the impact of the [appealable]
order on his case,” and it is not the role of reviewing courts to second-guess that
evaluation. Id.; see also People v. Keith, 148 Ill. 2d 32, 40 (1992). The principle of
the prosecutor’s good-faith evaluation comes into play only if the circuit court’s
order has the substantive effect of suppressing evidence or quashing the search
warrant. See People v. Truitt, 175 Ill. 2d 148, 152 (1997), abrogated in part on
other grounds by People v. Miller, 202 Ill. 2d 328 (2002). In other words, it must
first be determined that the substantive effect of the order is to suppress evidence
or quash a search warrant before the certificate of substantial impairment is
considered. See id.¶ 39 Here, defendant argues that the circuit court’s judgment denying the motion to
compel did not have the substantive effect of quashing the search warrant or
suppressing evidence. Defendant stresses that the judgment did not invalidate the
search warrant but only limited the means by which the State could pursue the
search warrant. Thus, defendant maintains that the judgment is not appealable under
Rule 604(a)(1).
¶ 40 Defendant cites In re K.E.F., 235 Ill. 2d 530 (2009), and People v. Lee, 2020 IL
App (5th) 180570, to support his argument. In both cases, the State sought to admit
into evidence prior videotaped statements of witnesses, and in both cases, the circuit
court found the statements inadmissible because the State failed to meet the burden
for admitting evidence. K.E.F., 235 Ill. 2d at 539-40; Lee, 2020 IL App (5th)
180570, ¶ 6.
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¶ 41 In K.E.F., this court found the circuit court’s order unappealable because it did
not have the substantive effect of suppressing evidence, as the admissibility of the
evidence was “entirely within the State’s control.” 235 Ill. 2d at 540. This court
observed that the order did not prevent information from being presented to the
factfinder but only impacted the means by which the information could be
presented, which did not constitute suppression of evidence. Id. On that basis, this
court concluded that the circuit court’s order was unappealable under Rule
604(a)(1). Id. at 540-41.
¶ 42 The Lee court observed that the conclusion in K.E.F. was based on the fact that
the circuit court’s judgment left the State with another option to present the
pertinent information through live testimony. Lee, 2020 IL App (5th) 180570, ¶ 23.
The Lee court found “no meaningful distinction on this dispositive point” and
concluded that it lacked jurisdiction to consider the State’s appeal. Id.¶ 43 Here, defendant maintains that K.E.F. and Lee apply, as the circuit court’s
judgment denying the State’s motion to compel only addressed the means by which
the State could pursue the search warrant. He asserts that the circuit court
acknowledged the validity of the search warrant and did not issue an order
preventing the State from pursuing the evidence by some other means. Thus,
defendant contends that the circuit court’s judgment did not have the substantive
effect of quashing the search warrant.
¶ 44 Defendant adds that the circuit court did not suggest that the State would be
barred from presenting any evidence at trial and that the State has not established
that it will actually find any evidence on the phone. As such, defendant maintains
that the circuit court’s judgment did not have the substantive effect of suppressing
evidence.
¶ 45 The State responds that the order prevented police from executing the search
warrant because, unless defendant enters the passcode, there is no means to access
the evidence on the phone. Accordingly, the State contends that the order is
appealable by the plain terms of Rule 604(a)(1) because it had the substantive effect
of quashing the search warrant. The State further contends that the order is
appealable because it had the substantive effect of suppressing evidence. The State
explains that the search warrant issued for evidence that may be stored only on the
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phone and that the order prevented any such evidence from being presented to the
factfinder. We agree with the State.
¶ 46 The existence of another means of pursuing evidence has no bearing on the
ultimate question posed by Rule 604(a)(1) as applied to the facts of this case:
whether the circuit court’s order denying the State’s motion to compel has the
substantive effect of quashing the search warrant or suppressing the evidence. We
find defendant’s cited cases distinguishable on their facts, as neither involved
search warrants or motions to compel production. Rather, both cases involved
motions to admit evidence that was readily presentable to the factfinder, already in
the State’s possession, and “entirely within the State’s control.” See K.E.F., 235 Ill.
2d at 533, 540; Lee, 2020 IL App (5th) 180570, ¶¶ 5, 21. In contrast, here, the
evidence is not in the State’s possession, not “entirely within the State’s control,”
and thus not readily presentable to the factfinder. See K.E.F., 235 Ill. 2d at 533,
540; Lee, 2020 IL App (5th) 180570, ¶¶ 5, 21. Rather, the State sought to obtain
evidence on defendant’s phone by means of the search warrant, and evidence on
the phone was not obtained because the circuit court denied the State’s motion to
compel. Accordingly, we find K.E.F. and Lee inapplicable here.
¶ 47 We further note that in Spicer—the precedent on which defendant relies to
support his fifth amendment arguments—the court considered this jurisdictional
issue and stated that, “[w]hen a warrant has been 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.” 2019 IL App (3d) 170814, ¶ 11.
On that basis, the Spicer court concluded that it had jurisdiction to consider the
appeal under Rule 604(a)(1). Id. ¶ 12. The appellate court here observed the
jurisdictional analysis in Spicer and likewise concluded it had jurisdiction. 2021 IL
App (4th) 210180, ¶ 34.
¶ 48 Defendant cites no Illinois authority contrary to these jurisdictional decisions.
However, defendant argues that Spicer based its conclusion on the Third District’s
previous decision in People v. Krause, 273 Ill. App. 3d 59 (1995), which defendant
contends misinterpreted this court’s decision in Keith as requiring reliance on the
State’s certificate of substantial impairment in determining the substantive effect of
the circuit court’s order. Defendant adds that Krause was decided without the
benefit of the guidance provided by this court in the more recent K.E.F.
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¶ 49 Though we find K.E.F. distinguishable on its facts, defendant cites this court’s
statement in K.E.F. that whether an order is appealable depends on the substantive
effect of the order and, “[i]n making that determination, we do not defer to the
parties or the circuit court.” K.E.F., 235 Ill. 2d at 538. Defendant maintains that,
here, the appellate court relied on the assertions in the State’s certificate of
substantial impairment to determine the substantive effect of the circuit court’s
order under Rule 604(a)(1), which defendant argues “is directly contrary to K.E.F.”
We disagree.
¶ 50 The appellate court did not determine the substantive effect of the order based
on the State’s certificate but on the statement in Spicer that, “ ‘[w]hen 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.’ ”
2021 IL App (4th) 210180, ¶ 32 (quoting Spicer, 2019 IL App (3d) 170814, ¶ 11).
It was after observing this quote in Spicer that the appellate court considered the
State’s certificate, which indicated that the circuit court’s order substantially
impaired its ability to prosecute the case. Id. ¶¶ 32-33.
¶ 51 Subsequently, the appellate court indicated two things: (1) it “accept[ed] the
State’s good[-]faith evaluation of the impact of the trial court’s order on its ability
to prosecute its case,” and (2) it “agree[d] that the trial court’s order [was] like an
order suppressing evidence.” Id. ¶ 34. We agree that the substantive effect of the
underlying order is a separate question that must be addressed before the
prosecutor’s evaluation in the certificate is considered. See Truitt, 175 Ill. 2d at 152.
We further acknowledge that, in the aforementioned statement, the appellate court
noted its acceptance of the prosecutor’s evaluation before assenting that the order
had the substantive effect of suppressing evidence.
¶ 52 Notwithstanding its wording arrangement, the appellate court nonetheless
employed the above quote from Spicer before considering the State’s certificate.
Moreover, in its analysis, the appellate court separated the principles of the
substantive effect of the circuit court’s order and the State’s certificate and made
two independent findings based on those principles.
¶ 53 The appellate court’s statement that the order was “like an order suppressing
evidence” was a clear reference to the quote in Spicer, upon which the appellate
court based its determination regarding the substantive effect of the order. See 2021
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IL App (4th) 210180, ¶ 34. There is no indication that the appellate court deferred
to the State or relied on its certificate to determine the substantive effect of the
circuit court’s order as defendant suggests.
¶ 54 It is of no consequence that, in the State’s certificate, the prosecutor commented
on the substantive effect of the order by indicating that the order “effectively
suppress[ed] evidence and *** effectively quash[ed] the search warrant.”
Notwithstanding these assertions, the appellate court’s conclusion regarding the
substantive effect of the order was independent of its consideration of the
certificate. As such, we reject defendant’s argument that the appellate court relied
on the State’s certificate of substantial impairment to determine the substantive
effect of the circuit court’s order under Rule 604(a)(1).
¶ 55 The search warrant issued allowing a search of defendant’s phone, and the
circuit court entered an order denying the State’s motion to compel defendant to
provide the passcode to the phone. In determining whether the circuit court’s order
effectively quashed the search warrant, we observe that the definition of “quash” is
“[t]o annul or make void; to terminate.” Black’s Law Dictionary (11th ed. 2019).
Here, the search warrant authorized officers to search defendant’s phone and
required defendant to unlock the phone so officers could execute the warrant. The
circuit court’s denial of the motion to compel eliminated the requirement for
defendant to comply with the search warrant. As such, we conclude that the circuit
court’s order annulled or voided the search warrant; thus, it had the substantive
effect of quashing the search warrant.
¶ 56 We further conclude that the circuit court’s denial of the motion to compel
effectively suppressed evidence. Although the denial did not directly suppress
specifically identified evidence, it prevented the State from accessing any evidence
on the phone and presenting it to the factfinder, thereby having the substantive
effect of suppressing evidence. See K.E.F., 235 Ill. 2d at 540.
¶ 57 Having determined the substantive effects of the circuit court’s judgment, we
now consider the State’s certificate. Defendant argues that the circuit court’s order
did not substantially impair the State’s ability to prosecute this case and that any
impairment is questionable at best. Citing Keith, defendant contends that, although
a reviewing court is permitted “to rely somewhat on the State’s certificate as to the
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issue of impairment [citation], it does not seem necessary for a court to abandon
logic in doing so.” (Emphasis added.)
¶ 58 Defendant misrepresents Keith, in which this court articulated and implemented
its former statement in Young that “ ‘we rely solely upon the good-faith evaluation
by the prosecutor of the impact of the *** order on his case.’ ” (Emphasis added.)
Keith, 148 Ill. 2d at 40 (quoting Young, 82 Ill. 2d at 247). We reject defendant’s
suggestion to rely somewhat on the State’s certificate. In the State’s certificate, the
prosecutor evaluated the effect of the circuit court’s order and indicated that the
order substantially impaired the ability to prosecute the case. We accept that good-
faith evaluation. See Young, 82 Ill. 2d at 247.
¶ 59 We conclude that we have jurisdiction to consider this appeal under Rule
604(a)(1), as the substantive effect of the underlying order results in both quashing
the search warrant and suppressing evidence, and the order substantially impaired
the State’s ability to prosecute the case.
¶ 60 B. Fifth Amendment Privilege and the
Foregone Conclusion Doctrine
¶ 61 Having established our jurisdiction over this appeal, we turn to the merits and
address the remaining issue: whether, if compelling defendant to produce the
passcode to his cell phone implicates the fifth amendment privilege against self-
incrimination, the foregone conclusion doctrine applies as an exception to that
privilege. “The standard of review for determining whether an individual’s
constitutional rights have been violated is de novo.” In re Robert S., 213 Ill. 2d 30,
45 (2004). However, we give substantial deference to any factual findings made by
the circuit court with regard to defendant’s fifth amendment challenge and will
reverse those findings only where they are against the manifest weight of the
evidence. People v. Braggs, 209 Ill. 2d 492, 505 (2003).
¶ 62 1. United States and Illinois Constitutions
¶ 63 The fifth amendment to the United States Constitution provides that no person
“shall be compelled in any criminal case to be a witness against himself.” U.S.
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Const., amend. V. Strikingly similar, article I, section 10, of the Illinois Constitution
provides that “[n]o person shall be compelled in a criminal case to give evidence
against himself.” Ill. Const. 1970, art. I, § 10. These provisions of the federal and
state constitutions “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 (1973). The provisions are “virtually identical” and are to be interpreted in
lockstep absent substantial grounds to depart from the federal interpretation.
Relsolelo v. Fisk, 198 Ill. 2d 142, 149-50 (2001).
¶ 64 Though defendant suggests that the rights protected by the privilege “can be
[broader] under the State constitution in some cases,” he fails to provide the
substantial grounds necessary to justify a departure from the lockstep interpretation
in this case. See id. Attempting to support his claim, defendant asserts that the
Illinois Constitution of 1970 “reflected an intention that the existing state of the law
remain unchanged” and that the existing law when the Illinois Constitution was
adopted was that the fifth amendment applied not only to compelled testimony but
also to the compelled production of private books and papers. See Boyd v. United
States, 116 U.S. 616, 630-35 (1886).
¶ 65 Defendant avers that it was not until Fisher, 425 U.S. 391, that the United States
Supreme Court narrowed the rule in Boyd by establishing that the compelled
production of private papers is permissible if facets of the production are
invalidated by the State’s knowledge. Defendant urges that—to the extent the
Illinois Constitution recognized the rule in Boyd as the existing law—this court
should not apply Fisher, which restricts that rule as it applies to the Illinois privilege
against self-incrimination. We decline to honor defendant’s request.
¶ 66 This court established that “[t]here is nothing in the proceedings of the
constitutional convention to indicate an intention to provide, in article I, section 10,
protections against self-incrimination broader than those of the Constitution of the
United States.” People v. Rolfinsmeyer, 101 Ill. 2d 137, 142 (1984). Indeed, those
proceedings “reflect[ ] a general recognition and acceptance of interpretations by
the United States Supreme Court” (id.) and an intent “that the existing state of the
law would remain unchanged” (internal quotation marks omitted) (id.), with “[t]he
existing state of the law at that time [being] lockstep interpretation of identical or
nearly identical language” (People v. Caballes, 221 Ill. 2d 282, 293-94 (2006)).
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¶ 67 Furthermore, Fisher is wholly applicable to the instant case, as it is the seminal
precedent for the act of production doctrine. We refuse to disregard it to
accommodate defendant’s attempt to broaden the scope of the privilege under the
Illinois Constitution as opposed to the United States Constitution. For these
reasons, we find defendant failed to provide the substantial grounds necessary to
warrant departing from the lockstep interpretation and to interpret the Illinois
provision as “applying more expansively” than the federal provision in this case.
See Relsolelo, 198 Ill. 2d at 149-50.
¶ 68 2. Fifth Amendment Principles
¶ 69 A communication violates the fifth amendment if it is testimonial,
incriminating, and compelled. Hiibel, 542 U.S. at 189. Notably, in the appellate
court, the State argued—and the appellate court concluded—that the compelled act
of producing the passcode to the phone is nontestimonial for fifth amendment
purposes. See 2021 IL App (4th) 210180, ¶ 63. However, before this court, the State
now concedes that the compelled act of entering the passcode is testimonial, 5 thus
satisfying the testimonial requirement. 6 The compulsion requirement is also
satisfied, as the State filed a motion to compel defendant to produce the passcode
to his phone.
¶ 70 Regarding the incrimination requirement, defendant maintains that the privilege
applies to compelled communication that leads to the discovery of incriminating
evidence even if the communication itself is neither incriminating nor introduced
into evidence. See Hubbell, 530 U.S. at 37. We agree but stress that the requirement
for the compelled production to be “testimonial” is separate from the requirement
for the production to be “incriminating.” Moreover, “[i]f a compelled statement is
‘not testimonial and for that reason not protected by the privilege, it cannot become
[testimonial] because it will lead to incriminating evidence.’ ” Doe, 487 U.S. at 208
5
The State notes the distinction between producing a passcode by entering it, as opposed to
disclosing it to officers. Because the State’s motion to compel sought an order that defendant either
enter the passcode or disclose it to officers, compliance with the order would not require that
defendant disclose the passcode. Thus, the State’s discussion of the act of producing a passcode
refers to the act of producing it by entering in into an encrypted phone rather than by disclosing it.
6
Though the State concedes that the act is testimonial, we discuss this aspect in greater detail,
infra, because the parties disagree as to why the act is testimonial.
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n.6 (quoting In re Grand Jury Subpoena, 826 F.2d 1166, 1171 n.2 (2d Cir. 1987)
(Newman, J., concurring)).
¶ 71 Although the State concedes that the act of entering the passcode is testimonial,
we ultimately conclude that the testimony implicit in that act is a “foregone
conclusion” and thus insufficiently testimonial to be privileged under the fifth
amendment. See Fisher, 425 U.S. at 411. Accordingly, it is irrelevant that
producing the passcode may lead to incriminating evidence. See Doe, 487 U.S. at
208 n.6.
¶ 72 3. Act of Production Doctrine
¶ 73 The United States Supreme Court articulated the act of production doctrine in
Fisher, asserting that “[t]he act of producing evidence in response to a subpoena
*** has communicative aspects of its own, wholly aside from the contents of the
[evidence] produced.” 425 U.S. at 410. Therefore, the act of production doctrine
allows a person to assert his fifth amendment privilege where the mere act of
production itself—as opposed to the content of what is being produced—has
testimonial implications. See id.¶ 74 4. Testimonial
¶ 75 Again, the State concedes that the compelled act of entering the passcode is
testimonial, thus implicating the fifth amendment. However, the parties’
disagreement as to why the act is testimonial merits discussion. Acts that produce
evidence are testimonial under the fifth amendment to the extent that performing
such acts “implicitly communicate[s] statements of fact.” (Internal quotation marks
omitted.) Hubbell, 530 U.S. at 36; see also Doe, 487 U.S. at 210 (to be testimonial,
an act must implicitly or explicitly disclose information or convey a factual
assertion). Under this rubric, in Hubbell, the United States Supreme Court
concluded that the testimonial aspect of a compelled act of production “does
nothing more than establish the existence, authenticity, and custody of items that
are produced.” 530 U.S. at 40-41. Put another way, there are three assertions of fact
implicit in a compelled act of producing evidence because the facts are necessary
prerequisites to the performance of the act. Those implicit facts are that (1) the
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evidence exists, (2) the person producing the evidence possesses or controls it, and
(3) the evidence produced is authentic. Id.¶ 76 The State concedes that compelling the production of the passcode is
testimonial, but only to the extent that the act implicitly asserts the fact that
defendant is able to unlock the phone, which establishes that the passcode exists,
defendant possesses or controls the passcode, and the passcode produced is
authentic. See id. The State acknowledges that many other facts may be inferred by
a person entering a passcode, i.e., the phone is registered in the person’s name, the
person made phone calls or sent text messages using the phone, or the person knows
what information is stored on the phone. However, the State explains that, because
none of those facts must be true for the person to have entered the passcode, none
of them are implicitly asserted by the act of entering the passcode.
¶ 77 The State proposes that a cell phone is a container, that entering the phone’s
passcode merely opens the container, and that the testimony implicit in producing
access to the container is different from the testimony implicit in producing the
contents of the container. The State explains that compelling a defendant to unlock
a phone by entering its passcode is analogous to compelling a defendant to unlock
a door by using its key; entering the passcode says nothing about what lies beyond
the passcode wall just as unlocking a door says nothing about what lies behind the
door.
¶ 78 We find that compelling the act of entering a passcode to a cell phone is
testimonial to the extent that performing the act implicitly asserts that the person
entering it has the ability to unlock the phone. This implicit assertion is broken
down into three components: (1) the passcode exists, (2) the person producing the
passcode possesses or controls it, and (3) the passcode produced is authentic. See
id.¶ 79 Defendant argues that the compelled act of producing the passcode to his cell
phone is testimonial, as it requires “delving into the contents” of his mind (see
Hubbell, 530 U.S. at 43) and revealing facts not already known by the State.
Defendant cites Seo v. State, 148 N.E.3d 952, 953 (Ind. 2020), in which the Indiana
Supreme Court concluded that compelling the defendant to unlock her phone
violated her fifth amendment privilege. The Seo court determined that compelling
the production of the passcode conveys that (1) the person knows the passcode,
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(2) the files on the phone exist, and (3) the person has control over and possession
of those files. Id. at 955.
¶ 80 Applying Seo here, defendant contends that the compelled act of producing the
passcode conveys information to the State that it did not previously know, i.e., that
defendant knows the passcode, that files exist on the phone, and that defendant has
possession and control of those files. See id. Defendant adds that the act is protected
by the fifth amendment privilege unless the State can show it already knew this
information under the foregone conclusion exception. We disagree.
¶ 81 In Seo, the court conflated the act of entering a phone’s passcode with the act
of producing files from the phone and intermingled those two acts in reaching its
conclusion. We agree with Seo to the extent that a fact implicit in the act of entering
a passcode is that the person knows the passcode. See id. However, unlike Seo, we
observe that the passcode may be entered, regardless of whether any files exist on
the phone and regardless of whether the person even has knowledge of—much less
possession of or control over—any files. See id. For these reasons, Seo has no
application here.
¶ 82 We further disagree that compelling defendant to enter the passcode is
testimonial because it delves into the contents of defendant’s mind. The appellate
court in this case aptly observed that “a cell phone passcode is a string of letters or
numbers that an individual habitually enters into his electronic device throughout
the day” and it “may be used so habitually that its retrieval is a function of muscle
memory rather than an exercise of conscious thought.” 2021 IL App (4th) 210180,
¶ 59. We agree that entering a passcode to a cell phone bears no resemblance to the
“extensive use of the contents of [the respondent’s] mind” that was required to
produce the hundreds of documents in Hubbell. (Internal quotation marks omitted.)
Hubbell, 530 U.S. at 43.
¶ 83 We find it fitting to compare the phone to a container and the passcode to a key
and that entering the phone’s passcode opens the container just as using a key
unlocks a door. There are many ways to unlock modern cell phones. Besides
entering a passcode using a series of letters and/or numbers, cell phones may also
be unlocked biometrically by using one’s fingerprint, facial recognition technology,
or retina scans. See State v. Stahl, 206 So. 3d 124, 135 (Fla. Dist. Ct. App. 2016);
- 21 -
State v. Andrews, 234 A.3d 1254, 1274 (N.J. 2020); Thomas A. Drysdale, I Can’t
Quite Put My Finger on It, 108 Ill. B.J. 26 (2020).
¶ 84 Regardless of what method is used to unlock a cell phone, we find them all
equally comparable to using a key to unlock a door, and we decline to distinguish
between the methods for purposes of fifth amendment application. We would place
form over substance to grant greater fifth amendment protection to those who
choose to secure their cell phones with a numeric passcode than to those who
choose to do so biometrically. See Stahl, 206 So. 3d at 135 (no greater fifth
amendment protection warranted for those using number and letter combinations
to protect their phones over those using their fingerprints); see also Andrews, 234
A.3d at 1274 (holding passcodes exempt from compelled production and biometric
codes subject to compelled production is inconsistent and places form over
substance).
¶ 85 In sum, we conclude that compelling defendant to enter the passcode to his cell
phone is testimonial—not because it involves delving into the contents of
defendant’s mind—but because entering the passcode implicitly asserts that
defendant is able to unlock the phone, which establishes that the passcode exists,
defendant possesses or controls the passcode, and the passcode is authentic. See
Hubbell, 530 U.S. at 40-41. Because the act of entering the passcode is testimonial,
the fifth amendment is implicated, thus warranting a foregone conclusion analysis.
¶ 86 5. Foregone Conclusion Doctrine
¶ 87 The foregone conclusion doctrine is an exception to the fifth amendment
privilege. Fisher, 425 U.S. at 411. If the testimony implicit in a compelled act is a
“foregone conclusion,” it “adds little or nothing to the sum total of the [State’s]
information” and is thus insufficiently testimonial to be privileged under the fifth
amendment. Id. In other words, the act of production is a foregone conclusion and
has no testimonial value where the information derived from the act is already
known by the State. See id. The foregone conclusion exception applies where the
State establishes that, at the time it sought the act of production, it knew with
“reasonable particularity” that (1) the evidence existed, (2) the evidence was in
defendant’s possession or control, and (3) the evidence was authentic. See Hubbell,
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530 U.S. at 40-41.
¶ 88 a. Whether the Foregone Conclusion Doctrine Applies at All
¶ 89 At the outset, defendant argues that the foregone conclusion doctrine does not
apply to the circumstances of this case, reasoning that, historically, the foregone
conclusion exception applied to cases involving subpoenaed tax documents or
business records and the exception should not be extended to apply to the
production of a cell phone passcode.
¶ 90 Defendant cites Seo, which raised three concerns with applying the exception
to cases involving the unlocking of phones. See 148 N.E.3d at 958-62. First, the
Seo court opined that, when the Fisher court introduced the foregone conclusion
exception in the context of the compelled production of business records, it is
unlikely the court imagined it applying to the compelled production of passcodes
to cell phones, which are capable of storing massive amounts of information. Id. at
959-60.
¶ 91 Second, the Seo court asserted that the foregone conclusion exception may
prove unworkable, given the amount of information contained on modern phones
to which access would be provided. Id. at 960. The Seo court noted—in the context
of focusing on the content of the phone—that under the foregone conclusion
exception, the government should only be provided those files it can establish
knowledge of with reasonable particularity and that unlocking a phone provides
broad access not only to the known files, but also to the phone in its entirety. Id.
¶ 92 Third, the Seo court stated that existing precedent and the narrow application of
the foregone conclusion exception weighs against extending it, noting that Fisher
is the only United States Supreme Court decision in which the foregone conclusion
exception has ever applied and that the only two cases discussing the exception—
without applying it—did so in the context of grand jury proceedings involving
subpoenaed business records. Id. at 961. The Seo court highlighted the United
States Supreme Court’s caution that “when ‘confronting new concerns wrought by
digital technology,’ [the Court] ‘has been careful not to uncritically extend existing
precedents.’ ” Id. (quoting Carpenter v. United States, 585 U.S. ___, ___, 138 S.
Ct. 2206, 2222 (2018)).
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¶ 93 In addition to Seo, defendant cites Commonwealth v. Davis, 220 A.3d 534 (Pa.
2019), in which the Pennsylvania Supreme Court refused to apply the foregone
conclusion exception to the compelled production of computer passwords (id. at
550-52), reasoning that it would significantly expand the rationale of the exception
to apply it beyond the context of business records (id. at 549). The Davis court
asserted that applying “the foregone conclusion rationale in these circumstances
would allow the exception to swallow the constitutional privilege.” Id.¶ 94 Defendant stresses that modern phones are capable of storing vast amounts of
information and that compelling the production of a phone’s passcode compels
production of all the information on the phone, in contrast to the specific documents
at issue in Fisher and its progeny. Accordingly, defendant maintains that applying
the foregone conclusion exception here risks allowing the exception to swallow the
privilege as applying it to the computer password in Davis would have.
¶ 95 The State responds that the foregone conclusion exception applies here because
cell phone passcodes have no characteristics requiring that they be uniquely
privileged under the fifth amendment. The State notes that, while the Fisher court
did not announce a universal test to determine the scope of the fifth amendment,
the foregone conclusion test was created by applying basic fifth amendment
principles and the test has since been repeatedly described in broad terms and has
applied to compelled acts besides the production of documents.
¶ 96 The State submits that Davis is an outlier with unsound reasoning. The Davis
court stated that the cases in which the foregone conclusion test applied concerned
production of business records, which Davis identified as “a unique category of
material” for fifth amendment purposes. Id. The State points out that, though the
Davis court described business records as “unique,” it did not elaborate on what
was unique about acts of producing business records in comparison to acts of
producing other evidence.
¶ 97 Moreover, Davis determined that the foregone conclusion exception does not
apply to acts of producing passcodes because those acts reveal “information arrived
at as a result of using one’s mind.” Id. at 549-50. The State responds that this
conclusion rests on a fundamental misunderstanding of the test. The State explains
that an individual may be compelled to perform an act that implicitly admits to facts
that reveal “information arrived at as a result of using one’s mind” (id.), so long as
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those implicitly admitted facts are foregone conclusions. See Fisher, 425 U.S. at
411. We agree with the State.
¶ 98 It is settled that “the attempt to force [a defendant] ‘to disclose the contents of
his own mind’ ” necessarily implicates the fifth amendment. See Doe, 487 U.S. at
210 (quoting Curcio v. United States, 354 U.S. 118, 128 (1957)). However, while
disclosing the contents of a defendant’s mind is a relevant consideration in
determining whether an act is testimonial for purposes of implicating the fifth
amendment, it has no bearing on whether the foregone conclusion test applies. The
court in Davis conflated these two scenarios. Indeed, where a compelled act of
production is deemed testimonial because it requires a defendant to disclose the
contents of his mind, a foregone conclusion analysis is necessary, and the exception
applies so long as the implicitly admitted facts—even facts that are conveyed as a
result of using one’s mind—are foregone conclusions. See Fisher, 425 U.S. at 411.
Thus, we find Davis inapplicable.
¶ 99 Nor is it relevant to the application of the foregone conclusion doctrine that
modern phones are capable of storing large amounts of information in comparison
to physical documents. As noted supra, a cell phone is like a container, and the
phone’s passcode is like a key that unlocks the container. The testimony implicit in
the act of unlocking a container is the same, regardless of the container’s capacity.
Likewise, the testimony implicit in the act of entering the passcode to a cell phone
is the same, regardless of the phone’s capacity.
¶ 100 Defendant’s concern—that cell phones contain large amounts of information
and that compelling the production of a passcode compels production of all the
information on the phone—would be more suitably raised as a challenge to the
scope of the search of his phone, which is a fourth amendment issue. Unless the
incriminating evidence in question is compelled testimony under the fifth
amendment, “its protection stems from other sources.” Id. at 401. The fourth
amendment protects “against seizures without warrant or probable cause and
against subpoenas which suffer from ‘too much indefiniteness or breadth in the
things required to be “particularly described.” ’ ” Id. (quoting Oklahoma Press
Publishing Co. v. Walling, 327 U.S. 186, 208 (1946)). A defendant is free to
challenge a search warrant under the fourth amendment if he believes it is too broad.
See People v. McCavitt, 2021 IL 125550, ¶ 92 (search exceeding scope of search
- 25 -
warrant presumptively invalid under the fourth amendment). In this case, defendant
did not contest the validity of the search warrant under the fourth amendment, and
we find the concern with the phone’s storage capacity is an unsuitable challenge
under the fifth amendment.
¶ 101 Defendant’s reliance on Carpenter is misplaced, as that case involved fourth
amendment implications of “the ability to chronicle a person’s past movements
through the record of his cell phone signals.” 585 U.S. at ___, 138 S. Ct. at 2216.
Carpenter’s caution against extending existing precedent was made in response to
a fourth amendment challenge of using cell phone tower location information to
determine whether it was subject to a reasonable expectation of privacy. Id. at ___,
138 S. Ct. at 2222. Unlike the fourth amendment, the fifth amendment focuses
narrowly on whether a person is compelled to provide self-incriminating testimony.
Though advanced technology providing cell phones with greater storage capacity
is significant under the fourth amendment, we find it irrelevant to the issue of
whether the foregone conclusion exception to fifth amendment protection applies
in the context of the compelled production of a cell phone’s passcode.
¶ 102 Excluding Davis—which we deemed inapposite—there is nothing in the history
of the foregone conclusion doctrine to suggest that it does not apply to acts of
producing passcodes to cell phones. The consensus of Illinois courts is that the
foregone conclusion doctrine applies to the compelled production of cell phone
passcodes. Though courts have disagreed as to what facts must be foregone
conclusions, none have disputed the actual application of the test in this context.
Accordingly, we find the foregone conclusion doctrine is applicable here.
¶ 103 b. Whether the Proper Focus Is on the
Passcode or the Contents of the Phone
¶ 104 Having found the foregone conclusion doctrine applicable, we observe the
conflict among Illinois Appellate Court decisions is whether, in applying the test,
the proper focus is on the passcode itself or on the information contained on the
phone. In resolving this conflict, we direct our attention to the act at issue: the act
of entering the passcode. The State’s motion to compel requested the circuit court
to order defendant to either provide or enter the passcode. The State did not seek to
compel defendant to produce any information contained on the phone, as a search
- 26 -
warrant issued entitling the State to certain information it believes is contained on
the phone. In a foregone conclusion analysis, focusing on the contents of the phone
would disregard the fact that accessing the contents previously passed a probable
cause determination by the circuit court by virtue of the search warrant.
Accordingly, any information that may be found on the phone after it is unlocked
is irrelevant, and we conclude that the proper focus is on the passcode. As such,
Spicer is overruled.
¶ 105 c. Applying the Passcode to the
Foregone Conclusion Analysis
¶ 106 In focusing on the passcode for purposes of our foregone conclusion analysis,
for the exception to apply, the State must establish that, at the time it sought the act
of production, it knew with reasonable particularity that (1) the passcode existed,
(2) the passcode was within defendant’s possession or control, and (3) the passcode
was authentic. See Hubbell, 530 U.S. at 40-41.
¶ 107 Here, Detective Ummel testified that the phone was passcode protected,
defendant had not provided the passcode, and the Clinton Police Department does
not have the technology to “crack” the cell phone. This establishes that at the time
it sought the act of production, the State knew with reasonable particularity that a
passcode existed.
¶ 108 Ummel testified further that the phone was seized from defendant’s person upon
his arrest and that, on the bail bond sheet, defendant identified the phone number
associated with the phone as his own phone number. This establishes that, at the
time it sought the act of production, the State knew with reasonable particularity
that defendant possessed the passcode.
¶ 109 Finally, we consider the authenticity of the passcode. The Spicer court
concluded that the State could not satisfy the requirements of the foregone
conclusion test because it could not confirm the authenticity of the passcode until
after it was used to decrypt the defendant’s phone. 2019 IL App (3d) 170814, ¶ 23;
see also Pollard v. State, 287 So. 3d 649, 656 (Fla. Dist. Ct. App. 2019) (same). On
the other hand, the appellate court in this case adopted the views of Andrews, 234
A.2d at 1275, and Stahl, 206 So. 3d at 136, and concluded that the authenticity
- 27 -
element is satisfied because the passcode is self-authenticating. 2021 IL App (4th)
210180, ¶ 101. Put another way, if the passcode unlocks the phone, the passcode is
authentic, and such will be determined when the passcode is entered. Id.¶ 110 We likewise conclude that the authenticity element is satisfied here by the self-
authenticating nature of the passcode. We overrule Spicer, as its conclusion would
not allow the State to utilize the foregone conclusion doctrine unless it could first
somehow obtain the passcode by another means, which would necessarily obviate
the need for a motion to compel the production of a passcode.
¶ 111 We adopt the reasoning of Stahl, in which the court observed:
“[T]he act of production and foregone conclusion doctrines cannot be
seamlessly applied to passcodes and decryption keys. If the doctrines are to
continue to be applied to passcodes, decryption keys, and the like, we must
recognize that the technology is self-authenticating—no other means of
authentication may exist. [Citation.] If the phone or computer is accessible once
the passcode or key has been entered, the passcode or key is authentic.” 206 So.
3d at 136.
¶ 112 We further observe that, if a valid passcode is not entered, the phone will not
open, thus rendering it impossible for an invalid passcode to open the phone. The
passcode self-authenticates by opening the phone, which in turn validates the
passcode’s authenticity. For these reasons, we conclude that, for purposes of the
authentication requirement of the foregone conclusion doctrine, the passcode to a
cell phone is self-authenticating when it is entered.
¶ 113 To summarize, the State established that, at the time it sought the act of
production, it knew with reasonable particularity that the passcode existed, the
passcode was in defendant’s possession or control, and the passcode was self-
authenticating. These implicit facts add “little or nothing to the sum total of the
[State’s] information.” Fisher, 425 U.S. at 411. In other words, the act of entering
the passcode has no testimonial value, as the facts implicit in the act are already
known by the State. Therefore, the facts are foregone conclusions and insufficiently
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testimonial to be privileged under the fifth amendment. 7 For these reasons, we
conclude that the foregone conclusion doctrine applies as an exception to the fifth
amendment privilege in this case.
¶ 114 III. CONCLUSION
¶ 115 We conclude as follows: (1) we have jurisdiction to consider this appeal under
Rule 604(a)(1), as the substantive effect of the circuit court’s judgment results in
quashing the search warrant and suppressing evidence and the prosecutor certified
that the circuit court’s judgment substantially impaired the State’s prosecution of
the case; (2) compelling the act of producing the passcode to a cell phone by
entering it into the phone is testimonial to the extent that performing the act of
entering the passcode implicitly asserts that the person entering it has the ability to
unlock the phone 8; (3) the foregone conclusion test is applicable in the context of
the compelled production of cell phone passcodes; (4) in applying the foregone
conclusion test in this context, the proper focus is on the passcode itself rather than
on the contents of the phone; and (5) the foregone conclusion doctrine applies as
an exception to the fifth amendment privilege in this case.
¶ 116 For the foregoing reasons, we affirm the judgment of the appellate court, which
reversed the circuit court’s judgment denying the State’s motion to compel and
remand for further proceedings.
¶ 117 Appellate court judgment affirmed.
¶ 118 Circuit court judgment reversed.
¶ 119 Cause remanded.
7
Because the State’s motion to compel sought an order for defendant to either enter the passcode
or provide it to officers, compliance with the order would not require defendant to disclose the
passcode, and this court need not consider whether disclosing the passcode is sufficiently testimonial
to be privileged where entering the passcode would not be.
8
We reject the appellate court’s conclusion that the compelled act of producing the passcode is
nontestimonial.
- 29 -
¶ 120 JUSTICE NEVILLE, dissenting:
¶ 121 Police, executing a search warrant, obtained the contents of Keiron Sneed’s cell
phone, but they could not read the encrypted contents. The appellate court ordered
Sneed to enter into his cell phone a code that instructs the cell phone to decrypt for
police all of its encrypted contents. Because police have all the cell phone’s
contents, they may use any means at their disposal to decrypt the contents but one:
they must not compel Sneed to decrypt or translate the contents of the cell phone.
The Illinois Constitution provides: “No person shall be compelled in a criminal case
to give evidence against himself ***.” Ill. Const. 1970, art. I, § 10. Prosecutors
intend to use the decrypted contents to prove Sneed committed forgery. The
appellate court’s order compels Sneed “in a criminal case to give evidence against
himself,” and therefore it violates article I, section 10, of the Illinois Constitution.
Accordingly, as a consequence of the constitutional restriction, I would affirm the
circuit court’s order denying the State’s motion to compel Sneed to enter the code
to decrypt the cell phone’s contents.
¶ 122 I. FACTS
¶ 123 Sneed owned a cell phone, which held his phone records, his photographs,
records of his searches, his e-mails and text messages, and other personal
information. The cell phone automatically coded all of the information Sneed wrote
into it and translated the information back from the code when Sneed punched in a
brief instruction directing the phone to decrypt its contents.
¶ 124 Police obtained a warrant to arrest Sneed based on allegations that Sneed
fraudulently cashed checks from Dairy Queen totaling less than $1000. When
police arrested Sneed, they seized his cell phone. Police subsequently obtained a
warrant permitting them to search the cell phone. Police could not decipher the
phone’s coded contents.
¶ 125 The State filed a motion asking the court to compel Sneed to direct the cell
phone to translate for police the cell phone’s coded contents so that prosecutors
could use the contents to prove Sneed committed forgery. The circuit court denied
the motion, and the appellate court reversed. The appellate court, like the majority
here, never directly addressed the question of whether the order the State sought
- 30 -
would compel Sneed “in a criminal case to give evidence against himself.”
¶ 126 II. ANALYSIS
¶ 127 We review de novo the issue of whether the order the State sought would violate
Sneed’s constitutional rights. In re Robert S., 213 Ill. 2d 30, 45 (2004). After
finding that this court has jurisdiction over the appeal, the majority holds (1) that,
under the lockstep doctrine, this court must treat the United States Supreme Court’s
interpretation of the fifth amendment (U.S. Const., amend. V) as a binding
interpretation of article I, section 10, of the Illinois Constitution (supra ¶¶ 63-66);
(2) that the United States Supreme Court’s interpretation of the fifth amendment
permits a court to order Sneed to decrypt, decode, or translate the contents of his
cell phone for use against him in a criminal case (supra ¶¶ 103-13); (3) that the fifth
amendment protects only very limited inferences from the act of producing the
decryption of the cell phone’s contents (supra ¶¶ 72-85); and (4) that the limited
protection disappears altogether when the court can find the compelled production
amounts to a foregone conclusion (supra ¶¶ 86-113). I disagree with the majority’s
four propositions.
¶ 128 A. Jurisdiction
¶ 129 The majority asserts the circuit court’s order denying the motion to compel
“annulled or voided the search warrant” that permitted the State to search Sneed’s
cell phone. Supra ¶ 55. The majority misstates the order’s effect. Police have
already seized the phone and executed the search warrant. They have the cell
phone’s contents, but they cannot read them.
¶ 130 At least two private companies, Cellebrite and Grayshift, claim they can decrypt
all cell phones on the market. See, e.g., Mikey Campbell, Grayshift Claims It
Defeated Apple’s Forthcoming “USB Restricted Mode” Security Feature, Apple
Insider (June 14, 2018), https://appleinsider.com/articles/18/06/14/grayshift-
claims-it-defeated-apples-forthcoming-usb-restricted-mode-security-feature
[https://perma.cc/RY9D-FCDP ]; Thomas Brewster, The Feds Can Now (Probably)
Unlock Every iPhone Model in Existence, Forbes (Feb. 26, 2018),
https://www.forbes.com/sites/thomasbrewster/2018/02/26/government-can-
- 31 -
access-any-apple-iphone-cellebrite/#9b41da1667a0 [https://perma.cc/4FFH-
Y8GL]; see Orin S. Kerr & Bruce Schneier, Encryption Workarounds, 106
Georgetown L.J. 989 (2018). Also, “[m]any law enforcement agencies around the
country already use one method of gathering encrypted evidence: state-sanctioned
hacking.” Adriana Christianson, Locked Out or Locked Up: The Need for New
Guidelines for Compelled Decryption, 55 Suffolk U.L. Rev. 237, 263 (2022). But
the commercial services charge thousands of dollars per project (see Thomas
Brewster, Mysterious $15,000 “GrayKey” Promises to Unlock iPhone X for the
Feds, Forbes (Mar. 5, 2018), https://www.forbes.com/sites/thomasbrewster/2018/
03/05/apple-iphone-x-graykey-hack/#7683b3a2950f [https://perma.cc/6GJR-
CDDU]; Cellebrite UFED Series, SC Mag. (Oct. 1, 2015),
https://www.scmagazine.com/review/cellebrite-ufed-series
[https://perma.cc/4TJD-ZT9Z]), and “[h]acking can be slow and expensive, costing
thousands of dollars per device and taking a few weeks or longer, and sometimes it
does not even work.” Christianson, supra, at 264.
¶ 131 The Illinois State Police, De Witt County, and the Clinton Police Department
understandably decided that the prosecution of Sneed for forging less than $1000
worth of checks did not justify the expense of hacking or commercial decryption.
The circuit court’s order denying the State’s motion to compel Sneed to decrypt the
cell phone’s contents left the police and prosecutors with a choice of either spending
thousands in pursuit of decryption to lead to a conviction for a relatively minor
offense or trying to obtain the conviction without the decryption.
¶ 132 Although the order did not annul or void the executed search warrant, it
increased the cost of decrypting the cell phone’s contents. The order, by presenting
the State with limited choices, effectively suppressed evidence and “substantially
impair[ed]” prosecution of Sneed for forgery, and therefore the appellate court had
jurisdiction over the State’s appeal. See People v. Drum, 194 Ill. 2d 485, 489
(2000); Ill. S. Ct. R. 604(a)(1) (eff. Jan. 1, 2023) (“In criminal cases the State may
appeal *** from an order or judgment the substantive effect of which results in ***
suppressing evidence ***.”).
- 32 -
¶ 133 B. This Court Should Reject the Lockstep Doctrine
¶ 134 To avoid the central issue in this case—whether the order the State seeks will
compel Sneed to give evidence against himself for use in a criminal case—the
majority resorts to the lockstep doctrine adopted in People v. Caballes, 221 Ill. 2d
282, 312-14 (2006). Supra ¶¶ 63, 66. Under the lockstep doctrine, this court must
adopt United States Supreme Court interpretations of the United States
Constitution, no matter how poorly reasoned, as this court’s interpretation of
similar provisions of the Illinois Constitution, unless
“ ‘ “[w]e *** find in the language of our constitution, or in the debates and the
committee reports of the constitutional convention, something which will
indicate that the provisions of our constitution are intended to be construed
differently than are similar provisions in the Federal Constitution.” ’ ” People
v. Fitzpatrick, 2013 IL 113449, ¶ 15 (quoting Caballes, 221 Ill. 2d at 310,
quoting People v. Tisler, 103 Ill. 2d 226, 245 (1984)).
¶ 135 Most importantly, flawed analysis and unpersuasive reasoning do not qualify
under Caballes as grounds for refusing to adopt the United States Supreme Court’s
interpretation of the United States Constitution as a binding interpretation of a
parallel provision of the Illinois Constitution. The Caballes court discussed other
jurisdictions that view flawed reasoning as grounds not to follow United States
Supreme Court interpretations of constitutional language (Caballes, 221 Ill. 2d at
308), but the majority rejected that approach as one that would leave Illinois with
an undesirable “jurisprudence of state constitutional law without regard to federal
decisional law except, perhaps, as persuasive authority” (id. at 312-13). The
Caballes court reasserted the limitations first stated in Tisler, which did not permit
flawed federal analysis to serve as grounds for refusing to adopt a United States
Supreme Court interpretation of the United States Constitution as a binding
interpretation of similar language in the Illinois Constitution.
¶ 136 The lockstep doctrine received its clearest expression in People v. Fitzpatrick,
2011 IL App (2d) 100463, ¶ 12, aff’d, 2013 IL 113449, where the court said, “the
lockstep doctrine would be largely meaningless if Illinois courts interpreting state
constitutional provisions followed only those United States Supreme Court
decisions with which they agreed.”
- 33 -
¶ 137 The application of lockstep here particularly lacks justification. This court has
expressly held that article I, section 10, of the Illinois Constitution differs
significantly from the fifth amendment to the United States Constitution. People v.
McCauley, 163 Ill. 2d 414, 424 (1994).
¶ 138 McCauley asked the circuit court to suppress the statement he made to police
after police prevented his attorney from speaking with him. The McCauley court
noted that binding United States Supreme Court precedent (Moran v. Burbine, 475
U.S. 412, 422-23 (1986)) established that the interrogation did not violate the fifth
amendment. McCauley, 163 Ill. 2d at 454. The McCauley court held that three
Illinois Supreme Court decisions, “along with the 1970 Constitutional Convention
proceedings, demonstrate that requirements under our State constitutional
guarantee (Ill. Const. 1970, art. I, § 10) differ substantially from the Federal and
support suppression of defendant’s statements under the circumstances presented
here.” McCauley, 163 Ill. 2d at 424. The court unequivocally rejected the lockstep
doctrine, as the court said,
“in the context of deciding State guarantees, Federal authorities are not
precedentially controlling; they merely guide the interpretation of State law.
[Citation.] [W]hile this court may, in construing State [constitutional]
guarantee[s], look for guidance and inspiration to constructions of Federal
guarantee[s] by Federal courts, final conclusions on construction of State
guarantee[s] are for this court to decide.” (Internal quotation marks omitted.)
Id. at 436.
This court later reiterated the principle: “rather than ‘blindly follow the reasoning
of a United States Supreme Court decision at all costs,’ this court should rely on its
own case law, wisdom and reason to construe our state constitutional provisions.”
People v. Lindsey, 199 Ill. 2d 460, 467-68 (2002) (quoting McCauley, 163 Ill. 2d at
439).
¶ 139 The McCauley court emphasized that Bernard Weisberg, the delegate to the
constitutional convention who advocated adoption of article I, section 10, assured
the other delegates that the section would retain the law then in effect regarding
self-incrimination. McCauley, 163 Ill. 2d at 440 (citing 3 Record of Proceedings,
Sixth Illinois Constitutional Convention 1377 (statements of Delegate Weisberg)).
At the time Illinois adopted the 1970 Constitution, the United States Supreme Court
- 34 -
had not yet ruled that police could bar an attorney from contacting a suspect in
custody without violating the fifth amendment. The McCauley court held that the
prior law, the interpretation of the self-incrimination clause in effect in 1970,
remained the law in Illinois. Id. Again, the McCauley court’s reasoning conflicts
directly with lockstep reasoning.
¶ 140 The Caballes majority claimed the lockstep doctrine accorded with McCauley
while flagrantly ignoring the reasoning of McCauley. The Caballes majority said
“In McCauley, however, we did not ascribe a different interpretation to a provision
of the state constitution than the Supreme Court had ascribed to the corresponding
federal constitutional provision. Rather, we determined that the police conduct at
issue implicated state due process concerns.” Caballes, 221 Ill. 2d at 300-01. I
cannot reconcile the Caballes court’s statement with the McCauley court’s explicit
rejection of the lockstep doctrine and its explicit holding that “requirements under
our State constitutional guarantee (Ill. Const. 1970, art. I, § 10) differ substantially
from the Federal.” McCauley, 163 Ill. 2d at 424.
¶ 141 The three justices who dissented from the majority opinion in Caballes
reasserted that “ ‘flawed federal analysis’ ” must remain grounds for the Illinois
Supreme Court to reject the United States Supreme Court’s interpretation of the
United States Constitution as a binding interpretation of the Illinois Constitution.
Caballes, 221 Ill. 2d at 337 (Freeman, J., dissenting, joined by McMorrow and
Kilbride, JJ.) (quoting State v. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M 777, 932
P.2d 1). Flawed federal analysis has no bearing on the applicability of United States
Supreme Court precedent under any form of lockstep. See Thomas B. McAffee,
The Illinois Bill of Rights and Our Independent Legal Tradition: A Critique of the
Illinois Lockstep Doctrine, 12 S. Ill. U. L.J. 1, 36-43 (1987).
¶ 142 1. Illinois Supreme Court Justices Have
Rejected the Lockstep Doctrine
¶ 143 Apart from the majorities in McCauley and Lindley and the three justices who
dissented in Caballes, at least five other justices of the Illinois Supreme Court have
rejected the lockstep doctrine.
- 35 -
¶ 144 Justice Clark pointed out that nothing in the history of the Illinois Constitution
showed the drafters intended to have the United States Supreme Court finally
determine the meaning of the Illinois Constitution. People ex rel. Daley v. Joyce,
126 Ill. 2d 209, 223 (1988) (Clark, J., concurring). By the time of the adoption of
the Illinois Constitution in 1970, the United States Supreme Court had made most
of the federal bill of rights applicable to the states. Id. at 226. Justice Clark noted
that “there would be little point in writing parallel guarantees into any State
constitution if those guarantees were never to be interpreted more broadly. *** [The
drafters] wanted the ‘double protection’ that only State constitutional guarantees
could provide.” Id.¶ 145 Justice Heiple emphasized this court’s “nondelegable duties” as the final
interpreter of the Illinois Constitution. People v. Mitchell, 165 Ill. 2d 211, 234
(1995) (Heiple, J., dissenting). Justices Nickels and Goldenhersh similarly
disagreed with the lockstep doctrine. See In re P.S., 175 Ill. 2d 79, 96-97 (1997)
(Nickels, J., dissenting, joined by Heiple, C.J.); People v. Exline, 98 Ill. 2d 150, 157
(1983) (Goldenhersh, J., dissenting, joined by Simon, J.).
¶ 146 Justice Simon persuasively argued,
“As justices of the highest court of the State of Illinois we take an oath of office
to faithfully uphold the provisions of the State Constitution. We cannot delegate
that duty to anyone—not to the legislature, nor the Governor, nor to any Federal
court.
***
In fulfilling our obligation to interpret and apply the Illinois Constitution
we are obliged to broadly balance the basic principles contained in that
document, and in doing so we are not limited by precedents of the United States
Supreme Court. [Citations.] Of course, when we believe that a decision of that
court ‘achieves a fair balance between [the relevant] competing objectives’
(People v. Smith (1983), 95 Ill. 2d 412, 422), we may choose to follow it.
However, when a majority of the United States Supreme Court has adopted an
interpretation of the Bill of Rights that we believe is insufficiently ample to
effectively implement those guarantees, we are not frozen by it in interpreting
the comparable provisions of our State Constitution. [Citations.]
- 36 -
***
*** [W]hat five United States Supreme Court justices decide is only a
binding interpretation of the Federal Constitution. It is the nature of the Federal
system that we, as the justices of the Illinois Supreme Court, are sovereign in
our own sphere; in construing the State Constitution we must answer to our own
consciences and rely upon our own wisdom and insights.” People v.
Rolfingsmeyer, 101 Ill. 2d 137, 143-47 (1984) (Simon, J., specially concurring).
¶ 147 I agree with Justices Simon, Clark, Freeman, Nickels, Goldenhersh,
McMorrow, Kilbride, and the majorities in McCauley and Lindsey. This court
should not treat United States Supreme Court decisions as binding interpretations
of the Illinois Constitution. Each supreme court justice should rely on her or his
own conscience and wisdom in interpreting the Illinois Constitution.
¶ 148 2. Commentators Argue Lockstep Improperly Prevents
This Court From Interpreting the Illinois Constitution
¶ 149 Several commentators agree with Justice Simon and the other justices who
would reject the lockstep doctrine. “ ‘Lockstep’ provides for mindless, formalist
uniformity. When a state uses ‘lockstep’ it is actually abdicating its role in our
federal system.” Timothy P. O’Neill, Escape From Freedom: Why “Limited
Lockstep” Betrays Our System of Federalism, 48 J. Marshall L. Rev. 325, 332
(2014); see Robert F. Williams, In the Glare of the Supreme Court: Continuing
Methodology and Legitimacy Problems in Independent State Constitutional Rights
Adjudication, 72 Notre Dame L. Rev. 1015 (1997).
¶ 150 Professor Paul Kauper told the delegates to our constitutional convention that
“a state supreme court is free to give the freedoms recognized in the state
constitution a reach that transcends interpretations given the fundamental rights by
the United States Supreme Court. A state is free to develop its own higher
standards.” Paul G. Kauper, The State Constitution: Its Nature and Purpose, in
Con-Con: Issues for the Illinois Constitutional Convention 3, 23-24 (Victoria
Ranney ed., 1970).
¶ 151 Another commentator observed:
- 37 -
“[Lockstep analysis] is a peculiarly uncritical form of realism that takes no
account of the possibility of error by the United States Supreme Court. ***
***
*** When the only justification offered both for adopting, and later
rejecting, a given rule of law, is that in both instances it was the rule of decision
in a Supreme Court case, it becomes difficult to imagine defending the
practice.” McAffee, supra, at 36-43.
¶ 152 McAffee sharply criticized the mistaken assertions about Illinois constitutional
history the Caballes court used as support for the lockstep doctrine. See id. at 20-
28. James K. Leven more fully explored the history of the Illinois constitutions in
A Roadmap to State Judicial Independence Under the Illinois Limited Lockstep
Doctrine Predicated on the Intent of the Framers of the 1970 Illinois Constitution
and Illinois Tradition, 62 DePaul L. Rev. 63 (2012). Leven notes first that, when
the Illinois Supreme Court summarized constitutional history as justification for
lockstep interpretations in Caballes, the court ignored several cases in which
Illinois courts had treated United States Supreme Court cases “as a guide in the
search for state constitutional meaning, not the exclusive source of wisdom that it
would have been if the Illinois Supreme Court applied a strict lockstep approach.”
Id. at 73. The Caballes majority also misinterpreted the two primary resources on
which the constitution’s drafters relied.
¶ 153 According to Leven, George Braden and Rubin Cohn in their treatise, The
Illinois Constitution: An Annotated and Comparative Analysis (1969),
“noted that one of the reasons for state retention [of the bill of rights] was the
primacy of state constitutional law protecting individual rights in circumstances
in which the U.S. Supreme Court had denied such protection.
Another reason for retaining state constitutional provisions that are parallel
to provisions in the U.S. Bill of Rights, according to Braden and Cohn, was the
possibility that the U.S. Supreme Court could, in the future, dilute, weaken, or
eliminate U.S. constitutional protection of individual rights in state court
proceedings.” Leven, supra, at 86.
- 38 -
¶ 154 Leven concluded, “the delegates strived to preserve the power of state court
judges to determine the meaning of the Illinois constitution, unshackled from U.S.
Supreme Court precedent.” Id. at 88. Justice Clark summarized the appropriate
standard. “[A]s to our State constitutional provisions, Federal precedents are not
stare decisis. They are persuasive and not determinative. Where their reasoning
persuades us, we should follow them. Where they do not, we should not.” Joyce,
126 Ill. 2d at 225 (Clark, J., concurring).
¶ 155 3. Under the Lockstep Doctrine, This Court Lacks the
Power to Protect Illinois Citizens
¶ 156 This court must recognize the stakes involved in the debate over lockstep
interpretation of the Illinois Constitution. Under the lockstep doctrine,
“this court would be precluded from protecting the civil liberties of Illinois
citizens should the United States Supreme Court decide to consistently favor
police efficiency over the rights of the accused. *** [The lockstep doctrine]
would preclude this court from protecting the individual liberties of Illinois
citizens should such protection become essential in the future.” Tisler, 103 Ill.
2d at 259 (Clark, J., specially concurring).
When the United States Supreme Court expands its interpretation of the rights
protected by the United States Constitution, the expanded rights apply to citizens
throughout the country, and no interpretation of a state constitution can authorize
governmental intrusion on the protected right. See People v. Aguilar, 2013 IL
112116. When the United States Supreme Court diminishes the rights of citizens
and permits the expansion of governmental powers over the citizens, under the
lockstep doctrine, Illinois must expand the government’s powers to the full extent
permitted by the United States Supreme Court, in all but very limited
circumstances. See O’Neill, supra, at 329-31.
¶ 157 The United States Supreme Court has broadly expanded governmental powers
over citizens, leading commentators to advocate for a more federalist approach to
constitutional interpretation, under which state courts would recognize that United
States Supreme Court interpretations do not bind state court interpretations of state
constitutions. “A primary focal point of this new federalism has been state courts’
- 39 -
reliance on state constitutions to provide rights no longer available under the
Supreme Court’s increasingly restrictive interpretation of the United States
Constitution.” Robert L. Brown, Expanded Rights Through State Law: The United
States Supreme Court Shows State Courts the Way, 4 J. App. Prac. & Process 499,
501-02 (2002).
¶ 158 In the years since Illinois adopted its latest constitution, the United States
Supreme Court’s expansion of government power has affected many different areas
of constitutional interpretation. The Court permitted broad restrictions on students’
rights to free speech in Morse v. Frederick, 551 U.S. 393 (2007). The Court
expanded governmental immunity when it ruled victims of violent crimes
committed by police lacked standing to sue the city for an injunction against further
violent crimes committed by police. City of Los Angeles v. Lyons, 461 U.S. 95(1983). The Court expanded the government’s powers of eminent domain when it
ruled that a city’s use of eminent domain for economic development did not offend
the takings clause of the fifth amendment (U.S. Const., amend. V). Kelo v. City of
New London, 545 U.S. 469 (2005). Further, in McCauley, this court responded to
the restriction of fifth amendment rights in Burbine, 475 U.S. at 422-23. McCauley,
163 Ill. 2d at 435.
¶ 159 The United States Supreme Court has especially expanded government power
in the context of the fourth amendment (U.S. Const., amend. IV).
“The government’s power to seize individuals who are suspected of
crimes—by arresting, stopping, or otherwise detaining them—has expanded
significantly in the twenty-first century. The Supreme Court’s gradual
redefinition of what constitutes a reasonable Fourth Amendment seizure has
occurred without meaningful evaluation of whether the government needs
additional seizure or detention power.” Lauryn P. Gouldin, Redefining
Reasonable Seizures, 93 Denv. L. Rev. 53, 53 (2015).
See Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) (highway
sobriety checkpoints do not violate fourth amendment); Illinois v. Wardlow, 528
U.S. 119, 124-25 (2000) (police did not violate the fourth amendment when they
searched a citizen in a high-crime area because he ran from police); Kentucky v.
King, 563 U.S. 452, 462-63 (2011) (the exigency exception to the warrant
requirement applies even if the police have created the exigency themselves by
- 40 -
knocking and announcing their presence rather than simply obtaining a warrant
when possible).
¶ 160 We cannot forget that the United States Supreme Court recently overruled Roe
v. Wade, 410 U.S. 113 (1973), and restricted the rights of women by holding that
the federal constitution does not provide women with a right to abortion. See Dobbs
v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228 (2022).
The Court also limited the voting rights of citizens when it struck down as
unconstitutional the protections of the Voting Rights Act of 1965 (52 U.S.C.
§ 10101 et seq. (2012)). Shelby County v. Holder, 570 U.S. 529, 556-57 (2013).
One Supreme Court justice has recommended revisiting the constitutionality of the
following established rights: (1) a citizen’s right to use contraceptives (Griswold v.
Connecticut, 381 U.S. 479 (1965)); (2) the right of same-sex couples to marry
(Obergefell v. Hodges, 576 U.S. 644 (2015)); and (3) the right of same-sex couples
to have sexual relations in the privacy of their homes (see Lawrence v. Texas, 539
U.S. 558 (2003)). See Dobbs, 597 U.S. at ___, 142 S. Ct. at 2301 (Thomas, J.,
concurring).
¶ 161 The limited lockstep doctrine adopted in Caballes requires this court to allow
the expansion of governmental powers whenever five justices of the United States
Supreme Court approve such expansion, even when this court believes the United
States Supreme Court’s decision does not persuasively state the intention of the
framers of the Illinois Constitution, unless this court finds one of the very limited
bases allowed under Caballes for refusing to adopt the United States Supreme
Court’s interpretation. To stress again the most significant aspect of Caballes, the
decision, like all lockstep (or limited lockstep) decisions, does not allow this court
to reject United States Supreme Court decisions based on their flawed analysis or
unpersuasive reasoning.
¶ 162 In accord with our responsibility as final authoritative interpreters of the Illinois
Constitution, and as protectors of the constitutional rights of Illinois citizens, we
must reject the lockstep doctrine entirely. The Illinois Supreme Court justices cited
above and the cited commentary persuade me that, especially in light of the rights
and principles at stake, this court should partially overrule Caballes insofar as the
Caballes court adopted the limited lockstep doctrine.
- 41 -
¶ 163 4. Stare Decisis Should Not Bar This Court From
Reconsidering the Lockstep Doctrine
¶ 164 The four justices who signed on the decision in Caballes resolved the issue of
how this court should interpret provisions of the Illinois Constitution that use
language similar to provisions of the United States Constitution. The decision
operates as stare decisis on the issue.
¶ 165 This court has explained the reasons for adhering to our past decisions:
“The doctrine of stare decisis expresses the policy of the courts to stand by
precedents and not to disturb settled points. [Citation.] This doctrine is the
means by which courts ensure that the law will not merely change erratically,
but will develop in a principled and intelligible fashion. ***
To be sure, stare decisis is not an inexorable command. [Citation.]
However, we have consistently held that any departure from stare decisis must
be specially justified [citation] and that prior decisions should not be overruled
absent good cause [citations] or compelling reasons [citations]. *** [W]hen a
rule of law has once been settled, contravening no statute or constitutional
principle, such rule ought to be followed unless it can be shown that serious
detriment is thereby likely to arise prejudicial to public interests.” (Internal
quotation marks omitted.) Vitro v. Mihelcic, 209 Ill. 2d 76, 81-82 (2004).
¶ 166 “[S]tare decisis must not be allowed to obscure the changing needs of society
or to veil the injustice resulting from a doctrine in need of re-evaluation.” (Internal
quotation marks omitted.) Froud v. Celotex Corp., 98 Ill. 2d 324, 336 (1983). “The
tenets of stare decisis cannot be so rigid as to incapacitate a court in its duty to
develop the law.” Alvis v. Ribar, 85 Ill. 2d 1, 24 (1981), superseded by statute on
other grounds as stated in Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d
429, 440-41 (1992). “Stare decisis ought not to be the excuse for decision where
reason is lacking. [Citation.] *** [Our] law is free neither of some anomalies, nor
of everything illogical, but this is no reason for extending them.” (Internal quotation
marks omitted.) Dini v. Naiditch, 20 Ill. 2d 406, 416 (1960).
¶ 167 The lockstep doctrine makes no difference for cases in which the United States
Supreme Court has reasoned persuasively about the meaning of a provision parallel
- 42 -
to a provision of the Illinois Constitution. The lockstep doctrine also makes no
difference when an unpersuasive case expands the rights of individual citizens and
restricts the reach of the government, as the individual rights apply to all citizens
including the people of Illinois. The lockstep doctrine functions only when the
United States Supreme Court uses faulty, unpersuasive reasoning to expand the
reach of governmental powers and restrict the rights of citizens. The narrow
majority in Caballes imposes on the State of Illinois the worst, most poorly
reasoned decisions of the United States Supreme Court on the sole grounds that this
court cannot find one of the limited bases permitted by Caballes for distinguishing
the Illinois Constitution from the United States Constitution.
¶ 168 As the Caballes dissenters noted, and as Justices Simon, Clark, Heiple,
Goldenhersh, and Nickels argued, we must not abdicate our responsibility as final
interpreters of the Illinois Constitution. We must not apply United States Supreme
Court interpretations of constitutional rights whenever a five-justice majority of the
United States Supreme Court adopts an incorrect interpretation of a federal
constitutional provision that parallels an Illinois constitutional provision. This case
falls within the limited class of cases where this court should not apply stare decisis.
See Froud, 98 Ill. 2d at 336; Dini, 20 Ill. 2d at 416. We must not permit our usual
adherence to prior decisions to bar us from partially overruling Caballes insofar as
it adopted the limited lockstep doctrine.
¶ 169 C. This Court Should Not Apply Fisher to This Case
¶ 170 The majority uses the lockstep doctrine as authority for inflicting dicta from
Fisher v. United States, 425 U.S. 391, 409 (1976), on the citizens of Illinois, despite
the unpersuasive reasoning of Fisher and the inapplicability of the case to the facts
in Sneed’s case. Supra ¶¶ 63-67.
¶ 171 The Fisher majority had no grounds for making broad pronouncements on the
applicability of the fifth amendment to documents a defendant possessed or
prepared. The Internal Revenue Service demanded from Fisher’s attorneys
documents Fisher’s accountants prepared. Fisher, unlike Sneed, neither possessed
nor wrote the documents. The Fisher majority itself specifically distinguished the
facts of that case from circumstances like the facts of the case against Sneed, as the
- 43 -
court said, “Special problems of privacy which might be presented by subpoena of
a personal diary [citation] are not involved here.” Fisher, 425 U.S. at 401 n.7.
¶ 172 Despite the factual limits the Fisher Court acknowledged, excepting from its
reach personal papers like virtually all of the content of cell phones, the majority
here expands Fisher, treating it as binding authority for the propositions that (1) the
Illinois Constitution permits the State to compel defendants to produce self-
incriminating documents, because the self-incrimination clause does not apply to
any documents, (2) the self-incriminating aspects of an “act of production” receive
only very limited constitutional protection, and (3) the limited protection
disappears entirely under the “foregone conclusion” doctrine if the State can show
that it already knew what the act of production disclosed. Supra ¶¶ 63-102.
¶ 173 1. This Court Should Not Apply Fisher to Digital Technology
¶ 174 The expansion of Fisher to cases involving demands for owners to decrypt the
contents of their cell phones ignores the United States Supreme Court’s warning:
“When confronting new concerns wrought by digital technology, [courts should be]
careful not to uncritically extend existing precedents.” Carpenter v. United States,
585 U.S. ___, ___, 138 S. Ct. 2206, 2222 (2018) (citing Riley v. California, 573
U.S. 373, 386 (2014)).
¶ 175 In Riley, a police officer seized Riley’s decrypted cell phone in the course of a
lawful arrest and found on the phone evidence of criminal activity. Riley, 573 U.S.
at 378-79. The trial court found the fourth amendment permitted the search. Id. at
379. Prosecutors used the evidence from the phone to convict Riley for attempted
murder. The California Court of Appeals affirmed the conviction. Id. at 379-80.
¶ 176 The United States Supreme Court first noted that in United States v. Robinson,
414 U.S. 218 (1973), the court established the principle that a lawful arrest justifies
a search incident to the arrest “and a mechanical application of Robinson might well
support the warrantless searches at issue” in Riley. Riley, 573 U.S. at 386. The court
emphasized the “immense storage capacity” of cell phones, which “could just as
easily be called cameras, video players, rolodexes, calendars, tape recorders,
libraries, diaries, albums, televisions, maps, or newspapers.” Id. The Riley Court
said:
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“First, a cell phone collects in one place many distinct types of information—
an address, a note, a prescription, a bank statement, a video—that reveal much
more in combination than any isolated record. Second, a cell phone’s capacity
allows even just one type of information to convey far more than previously
possible. The sum of an individual’s private life can be reconstructed through a
thousand photographs labeled with dates, locations, and descriptions ***. ***
***
*** [A] cell phone search would typically expose to the government far
more than the most exhaustive search of a house: A phone not only contains in
digital form many sensitive records previously found in the home; it also
contains a broad array of private information never found in a home in any
form—unless the phone is.” (Emphasis in original.) Id. at 394-97.
¶ 177 The Riley court concluded:
“[W]hile Robinson’s categorical rule strikes the appropriate balance in the
context of physical objects, neither of its rationales has much force with
respect to digital content on cell phones. ***
We therefore decline to extend Robinson to searches of data on cell
phones, and hold instead that officers must generally secure a warrant
before conducting such a search” Id. at 386.
¶ 178 Under the reasoning of Riley, this court should not mechanically apply Fisher
to the content of cell phones. To decide whether to apply Fisher under the
circumstances of this case, this court should consider the purpose of the protection
against compelled self-incrimination and the probable effect of its ruling.
¶ 179 The majority here, like the Fisher Court, largely ignores the purposes of the
constitutional protection against compelled self-incrimination. The United States
Supreme Court explained:
“[The constitutional privilege against self-incrimination] grows out of the high
sentiment and regard of our jurisprudence for conducting criminal trials and
investigatory proceedings upon a plane of dignity, humanity and impartiality.
It is designed to prevent the use of legal process to force from the lips of the
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accused individual the evidence necessary to convict him or to force him to
produce and authenticate any personal documents or effects that might
incriminate him. Physical torture and other less violent but equally
reprehensible modes of compelling the production of incriminating evidence
are thereby avoided. The prosecutors are forced to search for independent
evidence instead of relying upon proof extracted from individuals by force of
law. The immediate and potential evils of compulsory self-disclosure transcend
any difficulties that the exercise of the privilege may impose on society in the
detection and prosecution of crime. While the privilege is subject to abuse and
misuse, it is firmly embedded in our constitutional and legal frameworks as a
bulwark against iniquitous methods of prosecution. It protects the individual
from any disclosure, in the form of oral testimony, documents or chattels,
sought by legal process against him as a witness.” United States v. White, 322
U.S. 694, 698-99 (1944).
¶ 180 The appellate court’s order here undermines the dignity, humanity, and
impartiality of proceedings against Sneed by forcing him to produce for prosecutors
decryptions of documents the State will use to prove him guilty of forgery.
¶ 181 The court should also consider the likely effects of extending Fisher to digital
devices. As one commentator pointed out, “allowing law enforcement such easy
access to devices [by compelling defendants to decrypt their phones] does not
restore some pre-existing status quo or ideal balance. Rather, it shifts to the
government an unprecedented ability to scour very personal and private data that
did not even exist twenty years ago.” Laurent Sacharoff, What Am I Really Saying
When I Open My Smartphone? A Response to Orin S. Kerr, 97 Tex. L. Rev. Online
63, 72 (2019).
¶ 182 Another commentator said:
“the easier it is for police to obtain compelled decryption orders, the more they
will do so. ***
***
*** [W]hen the government seizes a device pertinent to a serious or violent
crime, it can invest its resources in unlocking the device or forcing the help of
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third parties to try to get what’s inside. But government resources are finite. A
low bar is an invitation to conduct more searches in more cases by making
available at a relatively low cost such a substantial quantum of intimate
information about any person. Greater protection will require law enforcement
to use these encryption workarounds, forcing the government to pick and
choose when it will invest its finite resources and try to decrypt seized devices.
It will naturally reserve its finite resources for more serious cases. *** But
making it easy for the government to obtain compelled decryption orders
ensures that cell phone searches will occur more often. Imposing a state
constitutional barrier will reserve this intrusive investigative practice for the
serious cases that deserve it.” (Internal quotation marks omitted.) David
Rassoul Rangaviz, Compelled Decryption & State Constitutional Protection
Against Self-Incrimination, 57 Am. Crim. L. Rev. 157, 197-98 (2020).
¶ 183 The majority asserts that Sneed’s argument concerning the extensive
information police will acquire under the appellate court’s order reflects only fourth
amendment issues. Supra ¶ 100. Sneed concedes that police complied with the
fourth amendment when they obtained the contents of his cell phone, and he
concedes police and prosecutors will not violate his constitutional rights by using
those contents to prosecute him. Sneed contests only the means by which
prosecutors seek to derive evidence they can present in court from the cell phone.
Although police and prosecutors may use any other means available to them to
decrypt the cell phone without violating Sneed’s rights, Sneed argues they violate
the Illinois Constitution if they compel him to give evidence against himself by
decrypting the phone. The court must acknowledge the extent of the phone’s
contents in deciding how and whether to apply existing case law regarding self-
incrimination to digital devices. See Riley, 573 U.S. at 386-97.
¶ 184 2. This Court Should Not Adopt as Illinois
Constitutional Law the Fisher Court’s Holding
That the Self-Incrimination Clause Does
Not Apply to Documents
¶ 185 In accord with the reasoning of White and the purpose of the self-incrimination
clause, Illinois courts have held that the constitution forbids the State from
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compelling a defendant to produce documents the State could use as a step in
prosecuting the defendant for a crime. People ex rel. Bowman v. Woodward, 63 Ill.
2d 382, 386-87 (1976) (constitution forbids the State from compelling the
defendant to produce expert witness reports and X-rays); 10-Dix Building Corp. v.
McDannel, 134 Ill. App. 3d 664, 671 (1985) (“cancelled checks and bank deposit
slips sought in discovery were precisely the types of documents entitled to fifth
amendment protection under Fisher”). Finally, this court stated:
“The privilege against self-incrimination forbids the compulsory production
of documents, containing assertions made by the person invoking the privilege,
[citation] and it has also been held to preclude compulsory production of
documents in his possession, even though they do not contain assertions by him,
where such documents will furnish a link in the chain of evidence by which he
might be convicted of a crime.” People v. Myers, 35 Ill. 2d 311, 333 (1966).
¶ 186 Courts of other states have reached similar conclusions. First, in Armitage v.
State, 13 Ind. 441 (1859), prosecutors charged Armitage with possessing
counterfeit bills and sought an order directing Armitage to produce some of the
bills. The Supreme Court of Indiana held, “If the notes were really in the possession
of the defendant, as alleged in the indictment, the Court could not compel him to
produce them on the trial, for the reason that he might be, and if the charge was
true, certainly would thereby be, furnishing evidence against himself.” Id. at 443.
Second, in Riddle v. Blackburne, 110 N.Y.S. 748, 748 (App. Div. 1908)
(per curiam), the plaintiff accused the defendant of libel and sought an order
compelling the defendant to produce the allegedly libelous document. The Riddle
court denied the request, as it said, “[t]he effect of granting this application would
compel the defendant to furnish evidence which might be used against him in a
criminal prosecution.” Id. Third, a Pennsylvania court considering a charge of
forgery held the courts could not compel the defendant to produce the allegedly
forged document, “for it is a constant and invariable rule that in criminal cases the
party shall never be obliged to furnish evidence against himself.” (Internal
quotation marks omitted.) Commonwealth v. Meads, 11 Pa. D. 10, 12 (1901).
Fourth, the prosecutor in Phillips v. State, 480 S.W.2d 648 (Tex. Crim. App. 1972),
charged the defendant with forging a check, and the trial court ordered the
defendant to produce the forged instrument. The court of criminal appeals said,
“Requiring the appellant to produce an instrument, in the presence of the jury,
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which was the basis of his prosecution violated his Fifth Amendment right to be
free from self-incrimination. Appellant’s objection that the prosecutor’s demand
violated that right should have been sustained.” Id. at 649.
¶ 187 Prior to today, the Illinois Constitution precluded the State from compelling a
defendant to produce documents, like cancelled checks, bank records, diaries,
phone logs, or Internet search histories, for use against the defendant in a criminal
case. See Lamson v. Boyden, 160 Ill. 613 (1896); Myers, 35 Ill. 2d at 333. This court
should reject as unpersuasive the Fisher Court’s holding that protections against
self-incrimination do not apply to demands for documents the defendant wrote or
kept.
¶ 188 3. This Court Should Not Adopt the Act of Production
Doctrine as Part of Illinois Constitutional Law
¶ 189 The Fisher Court, in dicta inapplicable to the facts of the case before it, held
that the United States Constitution permitted the federal government to compel a
defendant to produce documents the defendant himself wrote because the
government had not compelled him to write the documents. Fisher, 425 U.S. at
409-10. The Fisher Court held that the fifth amendment protected the defendant
from only the testimonial implications arising from the act of production. Id. at 410-
11. The court then radically and indefensibly circumscribed the implications that it
would count, ignoring all the implications prosecutors would actually ask triers of
fact to draw from the compelled act of production.
¶ 190 Professor Nagareda pedagogically explained with examples some of the errors
of the Fisher majority:
“The crucial starting point of the act-of-production doctrine is to decouple
the content of documents from the act by which they are produced. To
determine whether a given act of production triggers the Fifth Amendment,
under the logic of Fisher, one must look only to that act itself. Most importantly,
one must ignore that the documents themselves are incriminatory in content. As
such, the perspective mandated by Fisher takes on an unreal, make-believe
quality. It is rather like the Wizard of Oz imploring supplicants to pay no
attention to the man behind the curtain. As one commentator accurately
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observes: ‘[T]he act-of-production theory is woefully out of touch with the
realities of subpoena practice,’ for ‘[b]oth prosecutors and witnesses served
with document subpoenas are invariably interested in the documents’ contents,
not the testimonial component of the act of production.’ ***
***
*** [I]t is the compulsion of that act of giving evidence in itself—whether
in the form of speech, production of preexisting documents, or otherwise—that
violates the Fifth Amendment. To put the point another way, the compulsion of
a person to engage in any production of self-incriminatory ‘evidence’ is
unconstitutional, not just compulsion of those acts of production that happen to
incriminate the producer above and beyond the content of what is produced.”
Richard A. Nagareda, Compulsion “to Be a Witness” and the Resurrection of
Boyd, 74 N.Y.U. L. Rev. 1575, 1601-03 (1999).
¶ 191 For his argument that the act of production doctrine violated the fifth
amendment, Professor Nagareda elucidated the history of the protection against
compelled self-incrimination starting with an eighteenth-century case, The King v.
Purnell (1748) 96 Eng. Rep. 20 (KB). The government charged Purnell with
criminal neglect of his duties as vice chancellor of Oxford University because he
failed to punish two persons who spoke treasonable words. Id. at 20. The
government sought to compel the university to produce university statutes
establishing the duties of the vice chancellor—but Purnell, as vice chancellor, bore
responsibility for responding to the request for documents. Id. The court refused to
issue the order because courts may not “make a man produce evidence against
himself, in a criminal prosecution.” Id. The documents constituted evidence of the
vice chancellor’s duties because of their contents, not because of an inference
arising from the act of production. The Purnell court observed the government had
a right to inspect the university statutes, including the statutes establishing the vice
chancellor’s duties. The court emphasized that the government’s right to the
documents did not give the government a right to compel Purnell to produce the
documents. Id.
¶ 192 Prior to 1769, Lord Mansfield stated as established common law, “in a criminal
or penal cause, the defendant is never forced to produce any evidence; though he
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should hold it in his hands, in Court.” Roe v. Harvey (1769) 98 Eng. Rep. 302, 305
(KB).
¶ 193 Early in the nineteenth century, the United States Supreme Court explained the
fifth amendment in a manner that accorded with Purnell: “The rule clearly is, that
a party is not bound to make any discovery which would expose him to penalties
***.” United States v. Saline Bank of Virginia, 26 U.S. (1 Pet.) 100, 104 (1828).
State courts followed the same rule. See Armitage, 13 Ind. at 442-43; Riddle, 110
N.Y.S. at 748; Meads, 11 Pa. D. at 12; Phillips, 480 S.W.2d at 649.
¶ 194 Illinois courts found defendants protected from compelled document discovery
based on the potentially incriminating aspects of the evidence sought without regard
to any inference from the act of production. In Lamson, 160 Ill. at 617, the plaintiff
sought an order compelling the defendant to produce documents showing the
defendant cornered the market on corn and doubled its price. The trial court refused
to grant the order (id.), and the Lamson court affirmed, noting that cornering the
market on a commodity violated criminal laws and holding that, “[w]henever a
witness is excused from giving testimony upon the ground, that his answers will
tend to criminate him, or subject him to fines, penalties or forfeitures, he cannot be
compelled to produce books or papers which will have the same effect” (id. at 618).
The content of the books or papers, not the limited inferences the Fisher Court
permits from an act of production, would show the offense.
¶ 195 The trier of fact would infer from the X-rays and the expert witness reports in
Woodward that the content of the documents accurately reflected the conditions of
their subjects. Woodward, 63 Ill. 2d at 386-87. The checks and bank records at issue
in 10-Dix would support an inference that certain transactions occurred, based on
the content of the documents and not based on an inference from an act of
production. 10-Dix, 134 Ill. App. 3d at 671. In People v. Zazove, 311 Ill. 198, 206
(1924), the court held, “the production of the paper would furnish a link in the chain
of evidence by which [the defendant] might be convicted of perjury on the criminal
trial, and he was entitled to the benefit of his constitutional right to refuse to furnish
that link.”
¶ 196 Professor Sacharoff explains that the inferences arising from an act of
production include inferences based on the documents’ content.
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“[T]he witness who produces the documents does not intend, by that act, to
communicate any message at all. The person producing child pornography does
not intend that act to be symbolically understood to mean ‘I possess these
images.’ Rather, as an inadvertent by-product of the act, we may draw the
ordinary inferences that the person possesses the files because that person was
able to physically produce them. Or, if a person produces a bank account
statement, we may infer the piece of paper is authentic because it came from
the person’s files.
The act of producing documents is thus not testimonial or communicative
in the ordinary way. ***
***
*** Producing a hard copy of child pornography *** implicitly and directly
communicates possession of the child pornography and likely knowing
possession—both central elements of the crime.
***
*** The use of a password to open a device also communicates that the
device likely belongs to the person and that the person possesses, perhaps
knowingly, the files on the device.” (Emphasis in original.) Sacharoff, supra, at
66-67.
¶ 197 The “fundamental folly of [the Fisher Court’s] effort to decouple document
content from the act of document production” (Nagareda, supra, at 1594) has
especially pernicious effect in the context of compelled decryption of cell phone
contents. By translating the contents of his cell phone, Sneed will give the State
evidence that he possessed specific photographs, he sent specific text messages and
e-mails on specific dates, he made specific calls to specific phones, he searched the
web for specific information, he videorecorded certain performances of material
possibly protected by copyright, or he offered to share videorecordings of
copyrighted material in exchange for specific favors (see United States v. Anderson,
741 F.3d 938, 946 (9th Cir. 2013) (“a person is guilty of criminal copyright
infringement if he or she ‘willfully’ infringes a copyright for the purpose of
commercial advantage or private financial gain”)), along with nearly endless
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personal information about himself. The cell phone would show (1) whether Sneed
received a phone call from a relative or friend from Texas or Florida or Idaho and
(2) whether, after he received the phone call, he searched the Internet for
information from Planned Parenthood and (3) whether he then contacted an
obstetrician or a medical clinic and (4) whether his friend or relative from Texas or
Florida or Idaho then came to Illinois for a brief visit and (5) whether the GPS
tracker on his phone showed a trip to the obstetrician’s office or medical clinic.
¶ 198 Prosecutors will ask the trier of fact here to infer from the content of Sneed’s
cell phone that he sent a specific image of a check to a bank on a specific date.
Supra ¶ 15. Prosecutors would not have the evidence of that specific image of a
check if Sneed did not instruct the cell phone to decrypt its contents. The fanciful
limitation the majority seeks to impose on the implications arising from the
compelled production bears no relation to the reality of the inferences the State will
tell triers of fact to draw from the production. See Nagareda, supra, at 1601-02. The
majority expands Fisher far beyond its own limits (see Fisher, 425 U.S. at 401 n.7),
ignoring the United States Supreme Court’s warnings about applying prior
precedent to the novel circumstances presented by current cell phone and computer
technology (see Carpenter, 585 U.S. at ___, 138 S. Ct. at 2222). The majority uses
Fisher, treated as binding authority interpreting the Illinois Constitution, first to
abolish Illinois’s long-standing protection from compelled production of
incriminating documents (supra ¶ 65; see Woodward, 63 Ill. 2d at 386-87; Zazove,
311 Ill. at 206; Lamson, 160 Ill. at 618), and second as authority for ordering Sneed
to produce for the State the most private and personal information about all aspects
of his life. Because the act of production doctrine willfully ignores the most basic
implications from a defendant’s act of producing incriminating documents, which
effectively states “I wrote these incriminating words” or “I kept this incriminating
record of my acts,” this court should not adopt the act of production doctrine as part
of its interpretation of the self-incrimination clause of the Illinois Constitution.
¶ 199 4. This Court Should Not Adopt the Foregone
Conclusion Doctrine as Part of Illinois Constitutional Law
¶ 200 The majority finds the production compelled here fits under the Fisher Court’s
doctrine that compelled testimony does not offend the fifth amendment if it counts
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as a “foregone conclusion” in that it “adds little or nothing to the sum total of the
Government’s information.” Fisher, 425 U.S. at 411; supra ¶ 87. Professor
Nagareda persuasively explains that the doctrine violates the constitutional
protection against self-incrimination.
“Whether a person is compelled to assume the status of a ‘witness against
himself’ turns upon what the person is compelled to do by the government—to
utter self-incriminatory speech, in the case of interrogation, or to produce self-
incriminatory documents, in the case of a subpoena. The status of being a
witness against oneself has nothing to do with the extent of the government’s
preexisting knowledge of what the witness might have to say, whether orally
through speech or implicitly through action. In the trial context, for instance, a
witness is no less of a witness when the attorney doing the questioning already
knows the answers to the questions that she poses.
*** In no other area of Fifth Amendment discourse does the Court make
the protection of that provision depend upon the degree to which the
government already knows what the witness is compelled to disclose. To the
contrary, it would be just as unconstitutional for the government to compel self-
incriminatory oral statements from a person whom the government already
knows, to a moral certainty, to have committed a given crime as it would be for
the government to compel the exact same statements where the government has
little preexisting knowledge of the person’s guilt. When it comes to self-
incriminatory oral statements, in other words, the government’s preexisting
knowledge is irrelevant. The Fifth Amendment, instead, stands as a prohibition
upon a particular method of information gathering in itself, apart from the extent
of information that the government already has.” Nagareda, supra, at 1597-98.
¶ 201 In Commonwealth v. Davis, 220 A.3d 534 (Pa. 2019), the Commonwealth
argued that, under the foregone conclusion doctrine, the court should compel the
defendant to decrypt his cell phone. The Pennsylvania Supreme Court echoed
Nagareda’s observation, saying,
“ ‘It is as if we were asked to rule that a confession could be coerced from an
accused as soon as the government announced (or was able to show) that [in] a
future trial it could produce enough independent evidence to get past a motion
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for a directed verdict of acquittal.’ ” (Emphasis omitted.) Id. at 550 (quoting
Goldsmith v. Superior Court, 152 Cal. Rptr. 3d 76, 87 n.12 (Ct. App. 1984)).
The court held, “we conclude the compulsion of a password to a computer cannot
fit within [the foregone conclusion] exception.” Id.¶ 202 I would hold that, under article I, section 10, of the Illinois Constitution, the
extent of the government’s knowledge can never provide grounds for compelling a
citizen to produce evidence for the government to use in a criminal prosecution of
the citizen. The court should not import from the unpersuasive decision in Fisher
the ill-considered foregone conclusion doctrine and use it to eliminate the
protections promised to Illinois citizens in article I, section 10, of the Illinois
Constitution and to expand the government’s power to intrude into all aspects of its
citizens’ lives.
¶ 203 D. The Illinois Constitution Forbids Compelled
Decryption of Cell Phones
¶ 204 Because the majority ignores the text of the Illinois Constitution, it never
addresses the question of whether the order the State seeks would compel Sneed
“in a criminal case to give evidence against himself,” in violation of article I,
section 10, of the Illinois Constitution.
“One way to think about compelled decryption is to imagine requiring a
witness to take the stand and translate a secret language into English. While one
can argue that physically taking the stand and translating a language is unlike
unlocking a cell phone, does it not produce the same result? Both require using
mental processes to relay facts that are unknown to the prosecution.” Evan
Kennedy, Protecting the Fifth Amendment: Compelled Decryption in Indiana,
54 Ind. L. Rev. 691, 701 (2021).
¶ 205 One scholar who has advocated for the wide expansion of the government’s
power to compel defendants to divulge all the contents of their cell phones,
Professor Kerr, argues that entering the code does not translate the documents
because the person who enters the code could not, without use of the cell phone,
decrypt the text. Because the user does not know how the cell phone encodes and
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decodes the text, his acts cannot constitute translation. Orin S. Kerr, Compelled
Decryption and the Privilege Against Self-Incrimination, 97 Tex. L. Rev. 767, 781
(2019).
¶ 206 Kerr’s argument ignores the fact that we often use tools to perform tasks we
could not perform without the tools. The use of a tool to perform a task one cannot
perform without the tool does not change the nature of the act. Punching a telephone
number into a telephone’s keypad is an act of making a telephone call. Punching
the passcode into the cell phone is an act of translating or decrypting all the encoded
information back into English.
¶ 207 The order the State seeks here compels Sneed to direct his cell phone to translate
for police all the documents stored on his cell phone. A defendant who translates
his own diary and phone log into English for police does not assert only that he
knows how to translate the documents. He gives police and prosecutors—to use as
evidence against him—documents showing that he sent specified text messages or
made phone calls to specified phone numbers at specified times, he made specified
searches of the Internet, he took specific photographs, and he went to places
specified by the cell phone’s GPS. He provides police and prosecutors with almost
limitless personal information. The appellate court’s order compels Sneed, in a
criminal case, to give evidence against himself in violation of article I, section 10,
of the Illinois Constitution.
¶ 208 E. A Ruling in Favor of Sneed Will Not
Foreclose the Government From Obtaining
Decryptions in Appropriate Circumstances
¶ 209 In cases where the government especially needs the decrypted contents of a cell
phone, it has one means always available for overcoming the restrictions of article
I, section 10: “the court on motion of the State may order that any material witness
be released from all liability to be prosecuted or punished on account of any
testimony or other evidence he may be required to produce.” 725 ILCS 5/106-1
(West 2020). When the court grants such immunity, the witness can no longer claim
the protection of section 10, because he no longer faces any threat of criminal
prosecution. See People ex rel. Cruz v. Fitzgerald, 66 Ill. 2d 546, 549 (1977).
“[I]mmunity from use and derivative use is coextensive with the scope of the
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privilege against self-incrimination, and therefore is sufficient to compel testimony
over a claim of the privilege.” Kastigar v. United States, 406 U.S. 441, 453 (1972).
¶ 210 III. CONCLUSION
¶ 211 I agree with the majority that police did not violate Sneed’s constitutional rights
when they obtained the encrypted contents of his cell phone. I also agree with the
majority that prosecutors would not violate Sneed’s constitutional rights if they use
those contents to prosecute Sneed for forgery. However, article I, section 10, of the
Illinois Constitution forecloses police and prosecutors from compelling Sneed to
decrypt, decode, or translate those contents for use against him in prosecution of
criminal charges.
¶ 212 The justices of this court have taken an oath to uphold the Illinois Constitution.
In accord with that oath, before this court adopts the United States Supreme Court’s
interpretation of constitutional language as a binding interpretation of the Illinois
Constitution, this court must critically assess the United States Supreme Court’s
reasoning and reject it when it fails to persuade us. Insofar as Caballes binds this
court to the United States Supreme Court’s constitutional interpretations, even
when those interpretations result from unpersuasive reasoning, we must partially
overrule Caballes.
¶ 213 I would find that, regardless of the Fisher Court’s pronouncements about the
application of the fifth amendment to documents, the Illinois Constitution forbids
court orders compelling individuals to produce self-incriminating documents for
use against them in criminal cases. I would reject the distinction between inferences
arising from the act of production and inferences arising from the content of the
documents produced. I would also reject the foregone conclusion doctrine, as the
extent of the government’s knowledge can never overcome the constitutional
provision that “[n]o person shall be compelled in a criminal case to give evidence
against himself.” Ill. Const. 1970, art. I, § 10.
¶ 214 The appellate court’s order directs Sneed to translate for police incriminating
documents the defendant created. The appellate court’s order compels Sneed, in a
criminal case, to give evidence against himself in violation of article I, section 10,
of the Illinois Constitution. Therefore, I would reverse the appellate court and
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affirm the circuit court’s order denying the State’s motion to compel Sneed to
decrypt the contents of his cell phone.
¶ 215 JUSTICE O’BRIEN took no part in the consideration or decision of this case.
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