State v. Pittman

“If the existence, location, and authenticity of documents is a foregone conclusion, then compelling a person to assemble those documents for production does not reveal the person’s mental processes and therefore is not sufficiently testimonial to trigger Fifth Amendment protection. However, if the government has minimal information about what documents exists or what they contain, the act of locating and selecting the documents to produce may require the subpoena recipient to use his or her own mental processes in a way that renders the resulting response testimonial in nature.” See Fisher v. United States, 425 US 391, 411, 96 S Ct 1569, 48 L Ed 2d 39 (1976).

Defendant appealed a contempt judgment issued by the trial court for repeatedly entering the incorrect passcode to avoid unlocking an iPhone in her possession in connection with a charge of possession of methamphetamine. Defendant had two assignments of error: (1) the order for her to unlock the iPhone because it violated Article I, section 12 of the Oregon Constitution and the Fifth amendment and (2) the order issued holding her in contempt because the evidence was insufficient to establish she willfully put in the wrong passcode. On appeal, Defendant argued the “foregone conclusion” doctrine was misapplied. In response, the State argued it met the only requirement of the “foregone conclusion” doctrine when it established Defendant knew the passcode of the device. “If the existence, location, and authenticity of documents is a foregone conclusion, then compelling a person to assemble those documents for production does not reveal the person’s mental processes and therefore is not sufficiently testimonial to trigger Fifth Amendment protection. However, if the government has minimal information about what documents exist or what they contain, the act of locating and selecting the documents to produce may require the subpoena recipient to use his or her own mental processes in a way that renders the resulting response testimonial in nature.” See Fisher v. United States, 425 US 391, 411, 96 S Ct 1569, 48 L Ed 2d 39 (1976). The test of identifying testimonial acts is: “if answering a question or complying with a directive requires the person to choose between telling the truth or telling a lie, it is likely testimonial in nature.” Pennsylvania v. Muniz, 496 US 582, 597, 110 S Ct. 2638, 110 L Ed 2d 528. (1990). The Court held the application of the foregone conclusion doctrine went around a compelled testimonial act because requiring Defendant to input the passcode only displayed her access to the device without compelling the contents of the device.

Affirmed.