                                        2019 IL App (3d) 170814

                                Opinion filed March 7, 2019
     ____________________________________________________________________________

                                                IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2019

     THE PEOPLE OF THE STATE                        )      Appeal from the Circuit Court
     OF ILLINOIS,                                   )      of the 14th Judicial Circuit,
                                                    )      Rock Island County, Illinois
            Plaintiff-Appellant,                    )
                                                    )      Appeal No. 3-17-0814
            v.                                      )      Circuit No. 17-CF-492
                                                    )
     MICHAEL E. SPICER,                             )      Honorable
                                                    )      Frank R. Fuhr
            Defendant-Appellee.                     )      Judge, Presiding
     ____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Presiding Justice Schmidt and Justice Wright concurred in the judgment and opinion.
     _____________________________________________________________________________

                                               OPINION


¶1          After defendant Michael Spicer was arrested for unlawful possession of a controlled

     substance, the State moved to compel him to disclose the passcode for a cell phone that was

     found on him when he was arrested. The trial court denied the State’s motion to compel, finding

     it would violate Spicer’s fifth amendment right against self-incrimination. The State filed a

     certificate of impairment and appealed.

¶2                                              FACTS
¶3          Defendant Michael Spicer was a passenger in a vehicle that was pulled over for a traffic

     stop. A second squad car arrived with a drug dog, which alerted on the vehicle. The officers

     searched the vehicle, where they found a prescription pill bottle containing cocaine inside a

     brown leather bag that was located on the floor of the passenger side where Spicer was sitting.

     He was arrested for unlawful possession of a controlled substance and later also charged with

     knowingly possessing cocaine with the intent to distribute.

¶4          A cell phone was found on Spicer’s person when he was searched incident to arrest. Law

     enforcement could not access the contents of the phone because it was passcode protected, and

     they sought and received a search warrant for the phone. Spicer would not provide the passcode

     and the State moved to compel the information. Spicer again refused, claiming that doing so

     would implicate his fifth amendment right against self-incrimination.

¶5          A hearing took place on the State’s motion to compel. Grant Killinger, a Rock Island

     County sheriff’s department deputy, testified. He was on patrol on June 24, 2017, and pulled

     over the vehicle in which Spicer was riding. A Rock Island city police officer and his drug dog

     joined him at the stop and conducted a free-air sniff of the vehicle. The dog alerted and Killinger

     and the other officer searched the vehicle. They discovered a pill bottle filled with cocaine in a

     leather bag that was on the passenger floorboard. The leather bag also contained a scale with

     suspected cocaine residue and a box containing 20 plastic baggies. Killinger searched Spicer and

     discovered a cell phone. Spicer admitted the phone belonged to him, but he would not provide

     the passcode to unlock it. Killinger seized the cell phone because he believed it had potential

     evidentiary value.

¶6          Rock Island County sheriff’s department investigator Adam Moseley testified. He

     applied for the search warrant for Spicer’s phone. In the supporting affidavit, Moseley attested


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       drug traffickers commonly use their cell phones, including the global positioning system (GPS)

       and map applications, to further their unlawful conduct. The trial court issued the warrant,

       finding probable cause to search Spicer’s phone for records of call logs, text messages,

       multimedia messages, instant messaging communications, voicemail, e-mail, any and all

       messaging applications, phonebook contacts, videos, photographs, Internet browsing and

       mapping history, and GPS data between May 24 and June 24, 2017. Moseley tried to search

       Spicer’s phone but could not access it because it was passcode-protected. He was not provided

       the passcode. If Moseley had been given the code, he would have verified it by entering it into

       the phone.

¶7            The trial court took judicial notice of the search warrant and took the issue under

       advisement. It issued a written decision on November 8, 2017, denying the State’s motion to

       compel. The court found that the State’s request to order Spicer to unlock his phone or provide

       the passcode implicated Spicer’s right against self-incrimination protected by the fifth

       amendment. The court found the foregone conclusion exception did not apply because the State

       did not know what information was on the cell phone and merely maintained that it “probably”

       contained evidence it could use as support for the charges against Spicer. The State filed a

       certificate of impairment and appealed.

¶8                                                ANALYSIS

¶9            There are two issues on appeal: whether we lack jurisdiction and whether the trial court

       erred when it denied the State’s motion to compel.

¶ 10          We first address the issue of jurisdiction. Spicer challenges this court’s jurisdiction to

       hear the appeal, claiming the order that the State appealed was not a final order and did not serve

       to suppress evidence or dismiss a charge. The State asserts that jurisdiction is proper as the trial


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       court’s denial of its motion to compel substantially impaired its ability to prosecute the case,

       satisfying the requirements to pursue an appeal.

¶ 11            The State may appeal in a criminal case in limited circumstances, including from “an

       order or judgment the substantive effect of which results in *** suppressing evidence.” Ill. S. Ct.

       R. 604(a)(1) (eff. July 1, 2017). Before it may file an appeal, the State must also certify to the

       trial court that the suppression order substantially impairs its ability to prosecute the case. People

       v. Turner, 367 Ill. App. 3d 490, 494 (2006). The trial court may rely on the State’s good faith

       evaluation of impairment when the State submits its certificate of impairment. People v. Krause,

       273 Ill. App. 3d 59, 61 (1995). An order that prevents certain information from being submitted

       to the factfinder substantially bars the information and is appealable under Rule 604(a). People v.

       Drum, 194 Ill. 2d 485, 492 (2000). When 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. State v. Stahl, 206 So. 3d 124, 128 n.3 (Fla. Dist. Ct. App.

       2016).

¶ 12            The State filed a certificate of impairment providing that the denial of its motion to

       compel “prevents the [S]tate from introducing evidence from the defendant’s cellphone and

       effectively suppresses that evidence.” The State surmised the phone could contain “actual

       evidence” of Spicer’s intent to distribute. According to Moseley, this actual evidence could be

       GPS and map applications, which, in his experience, were commonly used by drug dealers to

       further their trade. The State determined that the evidence it believes exists on the phone was

       critical to prosecuting Spicer. According to the State, the court’s denial of its motion to compel

       served to prevent it from presenting evidence to the finder of fact. It is not the role of the

       reviewing court to second-guess the State’s assessment that the trial court’s order suppresses



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       evidence. We reject Spicer’s claim that the order did not suppress evidence and find that the

       State’s appeal was proper under Rule 604(a)(1) and we have jurisdiction to decide it.

¶ 13          The other issue the State raises on appeal is whether the trial court erred when it denied

       the State’s motion to compel. The State argues that the fifth amendment’s privilege against self-

       incrimination does not protect Spicer from being compelled to provide the passcode to unlock his

       legally seized cell phone and submits the trial court erred in denying its motion to compel.

¶ 14          A person cannot be compelled to testify against himself in a criminal case. U.S. Const.,

       amend. V. The fifth amendment applies when the defendant is compelled to make a testimonial

       communication that incriminates himself. Fisher v. United States, 425 U.S. 391, 408 (1976). For

       the fifth amendment privilege to apply, “ ‘a communication must be testimonial, incriminating,

       and compelled.’ ” People v. Haleas, 404 Ill. App. 3d 668, 672 (2010) (quoting Hiibel v. Sixth

       Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 189 (2004)). An act of

       production is testimonial when the government compels the defendant “to make extensive use of

       ‘the contents of his own mind’ ” to communicate a statement of fact. United States v. Hubbell,

       530 U.S. 27, 43 (2000). We review de novo whether a privilege applies. People v. McRae, 2011

       IL App (2d) 090798, ¶ 25.

¶ 15          The foregone conclusion doctrine is an exception to the fifth amendment privilege.

       Fisher, 425 U.S. at 411. Per the doctrine, where the existence, location and authenticity of the

       evidence is a foregone conclusion, that is, it “adds little or nothing to the sum total of the

       Government’s information,” the fifth amendment does not protect the act of production. Id. The

       exception applies when the State demonstrates with “reasonable particularity” that when it

       sought the act of production, the State knew the evidence existed, the evidence was in the




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       defendant’s possession and it was authentic. United States v. Greenfield, 831 F.3d 106, 116 (2d

       Cir. 2016).

¶ 16          Illinois courts have not decided whether compelling a defendant to provide his passcode

       is testimonial. Courts from foreign jurisdictions are split on the issue. Some courts consider that

       the act of producing the passcode is testimonial as it requires the use of the defendant’s mind and

       cannot be compelled as violative of the defendant’s fifth amendment rights. See United States v.

       Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (defendant’s passcode constituted

       testimony which the government could not compel defendant to reveal); In re Grand Jury

       Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012) (providing

       passcode for hard drives was testimonial because it would require the defendant to use the

       contents of his mind); In re Search Warrant Application for [Redacted Text], 279 F. Supp. 3d

       800, 806 (N.D. Ill. 2017) (person cannot be compelled to reveal his passcode).

¶ 17          Other courts have determined that disclosing a passcode is not testimonial as it falls under

       the foregone conclusion exception and is not protected by the fifth amendment privilege. See

       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. Ct. 2017) (act of providing passcode is not

       testimonial); Stahl, 206 So. 3d at 136-37 (foregone conclusion that defendant could supply

       passcode); United States v. Fricosu, 841 F. Supp. 2d 1232, 1237 (D. Colo. 2012) (same).

¶ 18          On appeal, the State sought and was granted leave to add authority, arguing the decision

       in Seo v. State, 109 N.E.3d 418 (Ind. Ct. App. 2018), supported its argument. That decision has

       recently been vacated and the case transferred to the Indiana Supreme Court, where it was




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       scheduled for oral argument. See Eunjoo Seo v. State, 112 N.E.3d 1082 (Ind. 2018). As such, we

       will not consider the case in reaching our decision.

¶ 19          Spicer sought and was allowed to cite G.A.Q.L. v. State, 257 So.3d 1058 (Fla. Dist. Ct.

       App., Oct. 24, 2018) as additional authority. In G.A.Q.L., the State of Florida sought to compel

       the driver involved in a fatal car accident to reveal the passcodes to access his phone and to his

       iTunes account which was needed to update the phone. Id. at 1060. The trial court granted the

       motions to compel and the driver sought to quash the order. Id. The reviewing court first

       determined that forcing a person to reveal his passcode was testimonial and could be violative of

       the person’s fifth amendment rights. Id. at 1061-62. The court reasoned that forcing a person to

       reveal a passcode results in “ ‘implied factual statements’ ” and necessitates use of 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, 670 F.3d at 1346). Noting

       the State was not seeking the passcode itself but the information unlocked by the passcode, the

       court found the defendant was required to use his mind and demonstrate the factual basis that he

       could access his phone. Id. Accordingly, the court considered the requested information to be

       testimonial and protected by the fifth amendment. Id. at 1062-63.

¶ 20          Having found that revealing the passcode was testimonial, the G.A.Q.L. court proceeded

       to determine whether the foregone conclusion exception to the fifth amendment’s protections

       applied. Id. at 1063. In finding the exclusion was inapplicable, the court found that Florida failed

       to provide reasonable particularity concerning the information it was seeking. Id. at 1064. The

       court concluded that it was “not enough for the state to infer that evidence exists—it must

       identify what evidence lies beyond the passcode wall with reasonable particularity.” Id. In




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       reaching its decision, the G.A.Q.L. court focused on the contents within the phone, not the

       passcode needed to access the data. Id. at 1065.

¶ 21          We find G.A.Q.L. persuasive and well reasoned and follow its dictates. Here, the State is

       not seeking the passcode per se but the information it will decrypt. The cases that declare the

       passcode to be a nontestimonial communication operate under the framework that the passcode

       is the testimonial communication and that it falls under the foregone conclusion exception to the

       fifth amendment privilege. We consider that the proper focus is not on the passcode but on the

       information the passcode protects. The State claims it sustained its burden of proving with

       reasonable particularity that it knew the passcode existed, that Spicer knew the passcode and that

       it would be authenticated by entering it into Spicer’s phone. However, what the State actually

       needed to establish with reasonable particularity was the contents of the phone, which it did not

       do.

¶ 22          The State does not know what information might be on Spicer’s phone but surmises that

       cell phones are often used in unlawful drug distribution and such information would be available

       on Spicer’s phone. The State has not provided a particularized description of that information or

       even evidence that any useful information exists on the phone. The State sought and was granted

       in the search warrant access to most of the information in Spicer’s phone, including call logs,

       text messages, multimedia messages, instant messaging communications, voicemail, e-mail, all

       messaging applications, phonebook contacts, videos, photographs, Internet browsing and

       mapping history and GPS data between May 24 and June 24, 2017. The State does not identify

       any documents or specific information it seeks with reasonable particularity. The State is

       engaging in a fishing expedition and the foregone conclusion exception does not apply here.




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¶ 23          Even if we were to conclude that the foregone conclusion exception properly focuses on

       the passcode, the State did not and could not satisfy the requirements for the foregone conclusion

       exception. While the State is aware that the passcode existed and that Spicer knew it, the State

       could not know that the passcode was authentic until after it was used to decrypt Spicer’s phone.

       Moreover, the production of Spicer’s passcode would provide the State more information than

       what it already knew. Although the focus of the foregone conclusion is on the passcode, in our

       view, it properly should be placed on the information the State is ultimately seeking, which is not

       the passcode but everything on Spicer’s phone. We find that requiring Spicer to provide his

       passcode implicates his fifth amendment right against self-incrimination and the trial court did

       not err in denying the State’s motion to compel.

¶ 24                                            CONCLUSION

¶ 25          For the foregoing reasons, the judgment of the circuit court of Rock Island County is

       affirmed.

¶ 26          Affirmed.




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