foregone conclusion exception in Illinois

2023The 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

2021The State explained that it “doesn’t need an intricate pass code to prove ownership of the phone or its contents.” That is precisely the point of the foregone conclusion doctrine; the testimony implied by the act of producing the passcode—i.e., the defendant has knowledge of the passcode— “adds little or nothing to the sum total of the Government’s information.” Fisher, 425 U.S. at 411 . ¶ 106 We agree with the State that the defendant’s knowledge of the phone’s passcode and his knowledge of the phone’s contents are two different things.

2023The 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

2023The 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.

2023See Hubbell, - 22 - 530 U.S. at 40-41 . ¶ 88 a.

2021As the Supreme Court observed, “If a compelled statement is not testimonial and for that reason not protected by the privilege, it cannot become so because it will lead to incriminating evidence.” (Internal quotation marks omitted.) Id. at 208 n.6. ¶ 88 Additionally, the Hubbell court noted, “Whether the constitutional privilege *** protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating.” Hubbell, 530 U.S. at 37 . ¶ 89 Placing the focus of the foregone conclusion doctrine on the pass

2021See Andrews, 234 A.3d at 1273 (“[W]e find that the foregone conclusion test applies to the production of the passcodes themselves, rather than to the phones’ contents.”); Stahl, 206 So. 3d at 136 (“[T]he relevant question is whether the State has established that it knows with particularity that the passcode exists, is within the accused’s possession or control, and is authentic.”); Gelfgatt, 11 N.E.3d at 615 (“[W]e conclude that the factual statements that would be conveyed by the defendant’s act of entering an encryption key in the computers are ‘foregone conclusions’ and, therefore, the act

2021See Andrews, 234 A.3d at 1273 (“[W]e find that the foregone conclusion test applies to the production of the passcodes themselves, rather than to the phones’ contents.”); Stahl, 206 So. 3d at 136 (“[T]he relevant question is whether the State has established that it knows with particularity that the passcode exists, is within the accused’s possession or control, and is authentic.”); Gelfgatt, 11 N.E.3d at 615 (“[W]e conclude that the factual statements that would be conveyed by the defendant’s act of entering an encryption key in the computers are ‘foregone conclusions’ and, therefore, the act

2019See Commonwealth v. Gelfgatt, 11 N.E.3d 605 , 615-16 (Mass. 2014) (facts conveyed by disclosing passcode were foregone conclusion and not protected by the fifth amendment); Commonwealth v. Davis, 176 A.3d 869, 875-76 (Pa. Super.

2019See *1291 *273 Commonwealth v. Gelfgatt , 468 Mass. 512 , 11 N.E.3d 605 , 615-16 (2014) (facts conveyed by disclosing passcode were foregone conclusion and not protected by the fifth amendment); Commonwealth v. Davis , 176 A.3d 869 , 875-76 (Pa. Super.

2023“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).

2023The 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)). - 23 - ¶ 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 significantl

2021See In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d at 1346 (“Nothing in the record before us reveals that the Government knows whether any files exist and are located on the hard drives ***.”); Seo v. State, 148 N.E.3d 952 , 958 (Ind. 2020) (“This leads us to the following inquiry: has the State shown that (1) [defendant] knows the password for her iPhone; (2) the files on the device exist; and (3) she possessed those files?”); G.A.Q.L., 257 So. 3d at 1063 (“It is not the verbal recitation of a passcode, but rather the documents, electronic or otherwise, hidden by an elec

2021See In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d at 1346 (“Nothing in the record before us reveals that the Government knows whether any files exist and are located on the hard drives ***.”); Seo v. State, 148 N.E.3d 952 , 958 (Ind. 2020) (“This leads us to the following inquiry: has the State shown that (1) [defendant] knows the password for her iPhone; (2) the files on the device exist; and (3) she possessed those files?”); G.A.Q.L., 257 So. 3d at 1063 (“It is not the verbal recitation of a passcode, but rather the documents, electronic or otherwise, hidden by an elec

2021People v. Drum, 194 Ill. 2d 485, 488 , 743 N.E.2d 44, 46 (2000). ¶ 27 We apply a bifurcated standard of review to the trial court’s determination that the fifth amendment privilege protects defendant from being compelled to provide his passcode.

2021People v. Drum, 194 Ill. 2d 485, 488 , 743 N.E.2d 44, 46 (2000). ¶ 27 We apply a bifurcated standard of review to the trial court’s determination that the fifth amendment privilege protects defendant from being compelled to provide his passcode.

2021The court next determined that “the object of the foregone conclusion exception is not the password itself, but the data the state seeks behind the passcode wall.” Id. at 1063 .

2021Instead, it “generally [sought] essentially all communications, data, and images on the locked iPhone” based on “the prosecutor’s statement at the hearing that the surviving passenger [of a DUI-related accident] had been communicating with [the defendant] via Snapchat and text message on the day of the accident and after the accident.” Id. ¶ 76 The Third District found G.A.Q.L. persuasive and held that the focus of a foregone conclusion analysis should be placed on the contents of the phone instead of the production of the passcode.

2021See Andrews, 234 A.3d at 1273 (“[W]e find that the foregone conclusion test applies to the production of the passcodes themselves, rather than to the phones’ contents.”); Stahl, 206 So. 3d at 136 (“[T]he relevant question is whether the State has established that it knows with particularity that the passcode exists, is within the accused’s possession or control, and is authentic.”); Gelfgatt, 11 N.E.3d at 615 (“[W]e conclude that the factual statements that would be conveyed by the defendant’s act of entering an encryption key in the computers are ‘foregone conclusions’ and, therefore, the act

2021See Andrews, 234 A.3d at 1273 (“[W]e find that the foregone conclusion test applies to the production of the passcodes themselves, rather than to the phones’ contents.”); Stahl, 206 So. 3d at 136 (“[T]he relevant question is whether the State has established that it knows with particularity that the passcode exists, is within the accused’s possession or control, and is authentic.”); Gelfgatt, 11 N.E.3d at 615 (“[W]e conclude that the factual statements that would be conveyed by the defendant’s act of entering an encryption key in the computers are ‘foregone conclusions’ and, therefore, the act

2021Here, [defendant] was ordered to produce the passcode to his phone.”); Commonwealth v. Jones, 117 N.E.3d 702, 710 (Mass. 2019) (“[F]or the foregone conclusion exception to apply, the Commonwealth must establish that it already knows the testimony that is implicit in the act of the required production. [Citation.] In the context of - 18 - compelled decryption, the only fact conveyed by compelling a defendant to enter the password to an encrypted electronic device is that the defendant knows the password, and can therefore access the device.”). ¶ 71 Other courts have placed the focus of the fore

2021Here, [defendant] was ordered to produce the passcode to his phone.”); Commonwealth v. Jones, 117 N.E.3d 702, 710 (Mass. 2019) (“[F]or the foregone conclusion exception to apply, the Commonwealth must establish that it already knows the testimony that is implicit in the act of the required production. [Citation.] In the context of - 18 - compelled decryption, the only fact conveyed by compelling a defendant to enter the password to an encrypted electronic device is that the defendant knows the password, and can therefore access the device.”). ¶ 71 Other courts have placed the focus of the fore

2019See *1291 *273 Commonwealth v. Gelfgatt , 468 Mass. 512 , 11 N.E.3d 605 , 615-16 (2014) (facts conveyed by disclosing passcode were foregone conclusion and not protected by the fifth amendment); Commonwealth v. Davis , 176 A.3d 869 , 875-76 (Pa. Super.