A harshly split Indiana Supreme Court has ruled 3-2 in favor of a woman who was found in contempt for refusing to unlock her smartphone in a criminal investigation. A majority of the high court reversed the contempt order, holding in a landmark ruling that forcing her to unlock her iPhone would violate her Fifth Amendment right against self-incrimination.
In July 2017, Katelin Seo was charged with invasion of privacy, stalking, intimidation and other charges deriving from the alleged harassment of a man. When she was placed under arrest, law enforcement took her iPhone, believing it contained incriminating evidence, and a detective got a warrant to search the smartphone. However, when he couldn’t get into the locked device without Seo’s assistance, the detective got a second warrant that ordered Seo to unlock her iPhone. She refused, arguing that doing so would violate her Fifth Amendment right against self-incrimination.
The trial court held her in contempt, but a divided Indiana Court of Appeals agreed with Seo, overturning a Hamilton County contempt order against her. Indiana Supreme Court Justices then granted transfer and heard oral arguments in Seo’s case in April 2019.
Seo argued that the state, by forcing her to unlock her iPhone for law enforcement, would be requiring her to assist in the prosecution of her own criminal case and thus violate her right against self-incrimination. The state disagreed, claiming it already knows the implicit factual information Seo would convey by unlocking her iPhone.
Three of the justices agreed with Seo, reversing the trial court’s contempt order. The majority – Chief Justice Loretta Rush and Justices Steven David and Christopher Goff – found that the compelled production of an unlocked smartphone is testimonial and entitled to Fifth Amendment protection, unless the state demonstrates the foregone conclusion exception applies. But the majority noted the state failed to make that showing.
In deciding Katelin Eunjoo Seo v. State of Indiana, 18S-CR-595, the majority first found that a suspect surrendering an unlocked smartphone implicitly communicates, at a minimum, that the suspect knows the password; the files on the device exist; and the suspect possessed those files.
“And, unless the State can show it already knows this information, the communicative aspects of the production fall within the Fifth Amendment’s protection,” Rush wrote for the majority opinion. “Otherwise, the suspect’s compelled act will communicate to the State information it did not previously know — precisely what the privilege against self-incrimination is designed to prevent. This leads us to the following inquiry: has the State shown that (1) Seo knows the password for her iPhone; (2) the files on the device exist; and (3) she possessed those files?”
In answering that inquiry, the majority noted that the state failed to demonstrate that any particular files on the device exist or that Seo possessed those files. Specifically, it pointed out that law enforcement simply sought to compel Seo to unlock her phone so it could fish the device with unfettered access for potentially incriminating information.
“Though the foregone conclusion exception does not apply to these facts, this case underscores several reasons why the narrow exception may be generally unsuitable to the compelled production of any unlocked smartphone,” Rush wrote.
Additionally, the majority noted that extending the foregone conclusion exception to the compelled production of an unlocked smartphone is concerning because such an expansion fails to account for the unique ubiquity and capacity of smartphones, may prove unworkable, and runs counter to U.S. Supreme Court precedent.
But Justice Mark Massa, dissenting in a separate opinion joined in part by Justice Geoffrey Slaughter, veered away from the majority’s decision in finding that Seo’s case was mooted when her underlying criminal case was dismissed.
“Here, the State reached a global settlement with Seo resolving the claims it had against her. Once these charges were settled, the civil contempt order automatically terminated. What could the State now gain from Seo unlocking her device?” Massa asked in his dissent.
The dissenting judge further opined that the high court must ask whether it should use a federally moot case to decide an important question of federal constitutional law, to which he argued “the answer must be no.” Even in agreeing that Seo’s case is moot, Slaughter dissented further by disagreeing that a mootness exception justifies the high court’s reaching the merits of Seo’s constitutional claim.
“In lieu of our prevailing standard, I would adopt the federal standard because, consistent with Article 3, Section 1 of our state constitution, it requires that courts decide only actual disputes. Applying this standard here, I would find Seo’s appeal moot and not reach the merits of her Fifth Amendment claim,” Slaughter wrote.
But in a footnote, the majority stated that its dissenting colleagues are “incorrect in finding this case moot, as there has not yet been ‘a settlement of all differences between the parties.’”
“Justice Massa asks, ‘What could the State now gain from Seo unlocking her device?’ But the State has already answered that question — to complete its investigation of Seo and potentially file additional charges,” the majority wrote in a footnote. “… The prosecutor explained that the State could not ‘do a full investigation’ or ‘be in a position to either not bring or choose to bring new cases’ until it had evidence from the device. Then at oral argument, the State not only reiterated its continued interest in searching Seo’s iPhone but also argued that the case was not moot because the ‘threat of a sanction still hangs over [Seo’s] head.’ So, contrary to the dissenting view, the State has not settled all claims with Seo; and the stayed contempt order has not automatically terminated,” the footnote reads.
“In short, this case presents a live dispute and thus our decision renders effective relief. But irrespective of mootness, this case presents a novel, important issue of great public importance that will surely recur,” the majority concluded.