State v. Pittman

498

Argued and submitted September 15, 2020; decision of Court of Appeals

reversed, judgment of circuit court reversed, and case remanded to that court

for further proceedings January 28, 2021

STATE OF OREGON,

Respondent on Review,

v.

CATRICE PITTMAN,

Petitioner on Review.

(CC 16CN03799) (CA A162950) (SC S067312)

479 P3d 1028

In connection with a criminal prosecution for drug-related crimes, the state

moved for a court order compelling defendant to unlock the phone that was found

in defendant’s purse. The state sought the order so that it could search the phone,

pursuant to a valid search warrant. The trial court granted the state’s motion,

and, when defendant twice entered an incorrect passcode into the phone, the

trial court held defendant in contempt. Defendant appealed, arguing that the

court’s order violated her right against self-incrimination under Article I, section

12, of the Oregon Constitution and the Fifth Amendment to the United States

Constitution. Held: Article I, section 12, permits a court order compelling a defen-

dant to unlock a cell phone so long as the state (1) has a valid warrant authorizing

it to seize and search the phone; (2) already knows the information that the act

of unlocking the phone, by itself, would communicate; and (3) is prohibited from

using the defendant’s act against the defendant, except to obtain access to the

contents of the phone. Because the trial court did not make the required factual

finding that the state already knew the information that the act of unlocking the

phone would communicate, the trial court’s order was unlawful under Article I,

section 12.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is reversed, and the case is remanded to that court for further proceedings.

En Banc

On review from the Court of Appeals.*

Ernest G. Lannet, Chief Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

briefs for petitioner on review. Also on the briefs was Sarah

Laidlaw, Deputy Defender.

Jonathan N. Schildt, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

______________

* On appeal from Marion County Circuit Court, Tracy A. Prall, Judge. 300

Or App 147, 452 P3d 1011 (2019).

Cite as 367 Or 498 (2021) 499

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Kendra M. Matthews, Boise Matthews Ewing LLP,

Portland, filed the brief for amici curiae ACLU of Oregon,

American Civil Liberties Union, and Electronic Frontier

Foundation. Also on the brief was Kelly Simon, ACLU

Foundation of Oregon.

Franz H. Bruggemeier, Portland, filed the brief for

amici curiae Oregon Justice Resource Center and Laurent

Sacharoff.

WALTERS, C. J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed, and the case is

remanded to that court for further proceedings.

500 State v. Pittman

WALTERS, C. J.

In connection with a criminal prosecution for deliv-

ery of methamphetamine, the trial court ordered defen-

dant to unlock a passcode-protected cell phone that had

been found in her purse. Defendant resisted, contending

that the order required that she perform an act that would

provide incriminating, testimonial evidence, violating her

right against self-incrimination under Article I, section 12,

of the Oregon Constitution and the Fifth Amendment to

the United States Constitution. The trial court concluded

that the order was lawful and held defendant in contempt.

The Court of Appeals affirmed the contempt judgment.

State v. Pittman, 300 Or App 147, 164, 452 P3d 1011 (2019).

Although we agree with the state that there are circum-

stances in which such an order would not violate Article I,

section 12, the record in this case does not include a factual

finding by the trial court that would allow us to conclude

that those circumstances are present here. Accordingly, we

reverse.

I. BACKGROUND

Early one morning, defendant crashed her vehi-

cle into a tree, injuring herself and the passengers in the

car. Defendant and the passengers were transported to the

hospital where staff provided defendant with trauma care

and removed her clothing. While doing so, hospital staff dis-

covered that defendant possessed a large amount of cash,

a clear plastic baggie containing white powder, and a pipe,

and they turned those items over to police officers. The offi-

cers believed (and later confirmed) that the white substance

was methamphetamine. The officers also discovered that,

inside the baggie containing methamphetamine, there were

multiple smaller clear plastic baggies. The officers believed

that the baggies were of the type commonly used to sell

smaller amounts of drugs and that defendant was selling or

distributing drugs. At the hospital, Officer Brian Frazzini

attempted to take defendant’s statement, and he observed

that she appeared to be under the influence of a stimulant.

Based on the totality of that evidence, the state eventually

charged defendant with crimes, including delivery of meth-

amphetamine, and booked her into jail.

Cite as 367 Or 498 (2021) 501

While at the hospital, Officer Frazzini also made

another observation that led to the seizure of the phone that

is the focus of this case: He observed a “white smart phone

style cell phone” in defendant’s purse. The police obtained

a warrant to seize and search the phone. After seizing the

phone, they realized that it was passcode-protected and

that they could not unlock it. Supported by Frazzini’s affida-

vit reporting what he had observed at the hospital, Officer

Garon Boyce applied for a second search warrant and

requested that the court “compel” defendant to provide the

“numeric PIN numbers, alphanumeric passwords, patterns

codes or other coded information to unlock the phone.” The

court granted the second search warrant, and another offi-

cer, Officer Angus Emmons, met with defendant at the jail.

He provided defendant with a copy of the warrant and asked

her to unlock the phone. Defendant did not comply.

The state then filed a motion to compel defendant

to unlock the phone. In its motion, the state acknowledged

that, by unlocking the phone, defendant would “inferen-

tially” communicate that she had control over, or access to,

the phone, but “given that the defendant’s phone was located

in her purse, the defendant’s words will not be an admission

that the phone was in her control since the state has already

established that fact.” Accordingly, the state argued, com-

pelling defendant to unlock the phone would not violate

defendant’s right against self-incrimination.

Defendant opposed the motion. She contended,

among other things,1 that compelling her to provide the

passcode to the phone would violate her rights against self-

incrimination under Article I, section 12, of the Oregon

Constitution and the Fifth Amendment to the United States

Constitution. She asserted that the acts of providing the

passcode and unlocking the phone were each testimonial

and could incriminate defendant because they would indi-

cate that the phone belonged to her or that she had access to

the contents of the phone.

At a hearing, Officer Emmons testified. He explained

that his role at the Salem Police Department was to conduct

1

Defendant also argued that the search warrant itself was overbroad and

lacked particularity. That issue is not before our court.

502 State v. Pittman

technological investigations, and that the phone at issue was

an iPhone, which is produced by Apple. Emmons explained

that,

“[w]ith Apple specifically, and other phones sometimes,

the phone is encrypted by default, which means that all

the data on the phone, any potential evidence on the phone,

is encrypted to the point where we can’t access it unless

it’s unlocked with either a user code or that biometric data

that’s sometimes available to unlock the phone.”

He also testified that there was practically no way to break

the encryption on the phone or to manually remove the mem-

ory chip from the phone—even if the chip were removed,

the data on the chip would still be encrypted, and to use

a computer to decrypt the data, a passcode would still be

necessary.

The trial court granted the state’s motion to com-

pel. In a letter opinion, the trial court rejected defendant’s

argument that the state had failed to establish that she

knew the passcode or contents of the phone. The trial court

explained that, “[b]ased on defendant’s possession of the

iPhone, Officer Boyce’s training and experience, and Officer

Emmons’ testimony,” there was “probable cause to believe

that defendant has knowledge of the passcode and contents

of the iPhone.” Therefore, the trial court ordered defendant

to unlock the phone.

After issuance of its letter opinion, the court held a

hearing.2 The court did not instruct defendant to reveal the

passcode to the phone; the court instructed her to unlock it.

When defendant was handed the phone to enter the pass-

code, a detective observed that she entered, “123456.” The

phone did not unlock. The court again instructed defendant

that she was under court order to unlock the phone and

warned her that she would be held in contempt if she did not

comply. Defendant again entered “123456,” and the phone

did not unlock. The court found defendant in contempt and

sentenced her to 30 days in jail.

2

Defendant had filed a motion to stay the proceeding at which defendant

would be required to unlock the phone so that defendant could pursue mandamus

relief. At the hearing, the court denied defendant’s motion and required defen-

dant to unlock the cell phone.

Cite as 367 Or 498 (2021) 503

Defendant appealed the contempt judgment, rais-

ing, among other things,3 a challenge to the constitution-

ality of the trial court’s underlying order requiring her to

unlock the phone.4 She argued that the order compelling her

to enter the passcode violated her rights under Article I, sec-

tion 12, and the Fifth Amendment because the act of enter-

ing the passcode would be testimonial and incriminating:

The act would have communicated that defendant owned

or had access to the phone and its contents. Defendant

also argued that the doctrine on which the trial court had

relied—the so-called “foregone conclusion doctrine”—was

inapplicable. Defendant argued that, to prevail under that

doctrine, the state was required to establish that it could

prove the facts that her act could reveal, i.e., that she owned

the phone and knew its passcode. Defendant asserted that

the state had not met that burden. Defendant acknowledged

that, because the police had found the phone in her purse,

the state had evidence that permitted an inference that

defendant owned the phone. Defendant argued, however,

that she had not admitted owning the phone and that “the

act of typing a correct passcode into the phone would be new

and stronger evidence that defendant owned the phone and

was connected to any inculpatory evidence discovered in the

phone.” Moreover, defendant asserted, because of the vast

amount of private information maintained on cell phones,

the state should be required to show that it already knew

the incriminating information that the phone contained.

According to defendant, because the state had to prove the

facts that the act of unlocking the phone would provide and

had not done so, the trial court’s order was not lawful, and

3

Defendant also argued that the trial court plainly erred in holding her in

contempt because there was insufficient evidence showing that she willfully vio-

lated the trial court’s order. The Court of Appeals rejected that argument without

discussion. Pittman, 300 Or App at 152. Defendant does not ask this court to

address that issue.

4

In a contempt case, “a challenge to the merits of the underling order may be

made in any appeal from an order of contempt where, for constitutional, statutory

or practical reasons, no other remedy, either by appeal or mandamus, was avail-

able.” State v. Crenshaw, 307 Or 160, 168, 764 P2d 1372 (1988). The parties agree

that, here, no other remedy was available: Defendant requested a stay of the

order compelling her to unlock the phone so that she could pursue mandamus,

but that request was denied. The trial court’s order required immediate com-

pliance, and appeal from the judgment of contempt is the only practical remedy

available to defendant.

504 State v. Pittman

the court had erred in holding her in contempt for failing to

unlock the phone.

In its response, the state acknowledged that the

court’s order compelling defendant to unlock the phone

could be considered an order compelling “testimony” under

Article I, section 12, and the Fifth Amendment, because the

act would communicate that defendant “had control over

the phone.” The state argued, however, that the testimonial

aspects of the act were significant only to the extent that the

act communicated facts that the state did not already know.

The Court of Appeals affirmed. Pittman, 300 Or App

at 164. The court agreed with defendant that the act of enter-

ing the passcode was testimonial, explaining that entering

the passcode “requires the suspect to reveal her knowledge

of the passcode and, by extension, allows a factual inference

that she has access to the device and its contents.” Id. at 153.

The court then turned to the state’s argument that such tes-

timony could be compelled under the “foregone conclusion

doctrine,” which the state asserted had been adopted by the

United States Supreme Court and discussed in two of its

cases—Fisher v. United States, 425 US 391, 96 S Ct 1569, 48

L Ed 2d 39 (1976), and United States v. Hubbell, 530 US 27,

120 S Ct 2037, 147 L Ed 2d 24 (2000). Pittman, 300 Or App

at 156-58. From those cases, the Court of Appeals concluded

that that doctrine permitted the trial court’s order and did

not violate either the Fifth Amendment or Article I, section

12, of the Oregon Constitution. Id. at 159-61.

Specifically, the court explained that “it is only the

testimonial aspect of the compelled act that must be a fore-

gone conclusion, because it is only the testimonial aspect

of the compelled act that is protected under Article I, sec-

tion 12.” Id. at 160. That meant, the court reasoned, that

the state need not show that it already knew the specific

incriminating evidence that it would find on the phone; the

act of entering the passcode did not communicate those

facts. Rather, the act of entering the correct passcode “com-

municates * * * that defendant knows the passcode and,

by extension, has access to the device and its contents.”

Id. Therefore, the court explained, the court could compel

defendant to enter the passcode if the state established that

Cite as 367 Or 498 (2021) 505

it was a “foregone conclusion” that defendant could do so.

Id. at 160-61. Because the trial court had concluded that

the state had established “probable cause” of that necessary

fact, and because defendant had not adequately developed

an argument challenging that finding, the court held that

the order compelling defendant to act violated neither the

state nor the federal constitutions. Id. at 162-63.

Defendant sought, and we allowed, review.

II. ANALYSIS

In ordinary circumstances, when the state obtains

a warrant permitting it to search for incriminating evidence

in the possession of a defendant, the state has what it needs

to conduct that search. For example, after obtaining a valid

warrant supported by probable cause, the state is entitled

to enter a defendant’s home and perform the search autho-

rized by the warrant. The state will ordinarily be capable of

performing the search, including, for instance, searching a

defendant’s files for papers or drawers for diaries identified

in the warrant. See State v. Barnthouse, 360 Or 403, 414,

380 P3d 952 (2019) (search is presumed unreasonable and

“unlawful under Article I, section 9, unless it is supported

by probable cause and a warrant”). But the circumstances

in this case are not ordinary. Under these circumstances,

the “novel nature of digital devices” presents an obstacle

that officers cannot overcome with a search warrant. See

State v. Mansor, 363 Or 185, 200, 421 P3d 323 (2018) (due to

the “the novel nature of digital devices,” courts have applied

constitutional principles “in a manner somewhat different

from other physical evidence”). Even with a warrant, offi-

cers cannot obtain access to the contents of a locked iPhone;

as a practical matter, the state needs the assistance of a

person who can unlock it. That obstacle creates a constitu-

tional quandary. The state has a “responsibility to prose-

cute crime,” even “in the novel and rapidly evolving context

of digital evidence.” Id. at 205. As a constitutional matter,

however, a person cannot be compelled to provide incrimi-

nating, testimonial evidence. Thus, this case presents two

questions of first impression: Did the court’s order com-

pel an act that would provide incriminating, testimonial

evidence? If so, did the court’s order violate defendant’s

506 State v. Pittman

right against self-incrimination under the state or federal

constitutions?

In answering those questions, the parties focus on

Fisher—the decision of the United States Supreme Court

that was the focus of their arguments below. Because that

decision is so central to the parties’ arguments, we begin by

reviewing the Court’s reasoning and its holding in that case.

Fisher arose out of a dispute between the IRS and

three taxpayers. The IRS suspected that the taxpayers—a

husband and wife and another individual—had violated var-

ious tax laws. Fisher, 425 US at 393-94. After being inter-

viewed by the IRS, the taxpayers contacted their respec-

tive accountants to obtain certain tax documents that the

accountants had prepared for them. Id. at 394. After obtain-

ing the documents, the taxpayers gave them to their attor-

neys who had been hired to represent them in their dispute

with the IRS. Id. When the IRS learned that the taxpayers

had given the documents to their attorneys, the IRS served

summonses on the attorneys directing them to produce the

documents listed in the summons. Id. The attorneys did not

comply, and the IRS sought court orders compelling pro-

duction of the documents. Id. at 395. The district courts in

the taxpayers’ cases each entered an order to enforce the

summonses, and the attorneys appealed, arguing, among

other things, that if the Fifth Amendment excused the tax-

payers from turning over the documents, then the attor-

neys who received the documents from the taxpayers should

also be excused from compliance with the courts’ orders.5

Id. The issue, then, was whether compelling the taxpayers

to produce the documents violated the taxpayers’ Fifth

Amendment right against self-incrimination.

The Supreme Court began its analysis by explain-

ing that the documents the IRS sought did not enjoy Fifth

Amendment protection. See id. at 409 (explaining that “the

5

The Court agreed with the attorneys’ framing of the issue. The Court

explained that, if compelling a taxpayer to turn over the documents would violate

the taxpayers’ Fifth Amendment rights, then compelling the taxpayers’ attorneys

to turn over those same documents would violate the taxpayers’ attorney-client

privilege. Fisher, 425 US at 402. Thus, the Court analyzed the issue as a question

of whether compelling the taxpayers to turn over the documents through their

attorneys violated the taxpayers’ Fifth Amendment rights. Id. at 405-14.

Cite as 367 Or 498 (2021) 507

Fifth Amendment would not be violated by the fact alone

that the papers on their face might incriminate the tax-

payer, for the privilege protects a person only against being

incriminated by his own compelled testimonial communica-

tions”). The documents may have contained incriminating,

testimonial evidence, but the taxpayers had not been com-

pelled to create them. The Court explained that “the prepa-

ration of all of the papers sought in these cases was wholly

voluntary, and they cannot be said to contain compelled tes-

timonial evidence, either of the taxpayers or of anyone else.”

Id. at 409-10. Therefore, the taxpayers could not “avoid com-

pliance with the subpoena merely by asserting that the item

of evidence which [they are] required to produce contains

incriminating writing, whether [their] own or that of some-

one else.” Id. at 410.6

The Court then turned to the more difficult issue

of whether the act of producing the documents—which was

compelled—implicated the taxpayers’ Fifth Amendment

rights. Id. The Court explained that the act of producing

the documents had communicative aspects: If a taxpayer

produced the documents, that act would “concede[ ] the exis-

tence of the papers demanded and their possession or con-

trol by the taxpayer. It would also indicate the taxpayer’s

belief that the papers are those described in the subpoena.”

Id. Nevertheless, the Court held that the act of producing

the documents did not enjoy Fifth Amendment protection.

Id. at 410-11. The Court reasoned that the government

6

In so holding, the Court in Fisher took a step back from the analysis set

forth in Boyd v. United States, 116 US 616, 68 S Ct 524, 29 L Ed 746 (1886), which

had suggested, among other things, that the Fifth Amendment, like the Fourth,

was concerned with privacy rights. In Fisher, the Court explained that it rejected

Boyd’s analysis because the Fifth Amendment “does not independently proscribe

the compelled production of every sort of incriminating evidence but applies only

when the accused is compelled to make a [t]estimonial [c]ommunication that is

incriminating.” Fisher, 425 US at 408; see also Case Comment, The Rights of

Criminal Defendants and the Subpoena Duces Tecum: The Aftermath of Fisher v.

United States, 95 Harv L Rev 683, 683-84 (1982) (noting that Fisher represented

“a fundamental shift in [F]ifth [A]mendment jurisprudence from a concern with

privacy to a focus on compulsion,” and a shift from focusing on the “nature of the

evidence sought” to the “process by which it was to be obtained”). Later, in United

States v. Doe, 465 US 605, 610, 104 S Ct 1237, 79 L Ed 2d 552 (1984) (Doe I), the

Court confirmed that understanding of the Fifth Amendment, holding that vol-

untarily created documents, even voluntarily created documents in an individu-

al’s possession, are not protected by the Fifth Amendment.

508 State v. Pittman

already knew that the documents existed, where they were

located, and that the taxpayers has access to them. Id. at 411.

The Court held that, because the communicative aspects of

the act of producing the documents were a “foregone con-

clusion,” compelling compliance with the summonses would

“involve no incriminating testimony within the protection of

the Fifth Amendment.” Id. at 411, 414.

With that understanding of Fisher, we turn to

defendant’s arguments here—that the trial court’s order

compelling her to unlock the cell phone found in her purse

violated her right against self-incrimination under both the

state and federal constitutions. We begin with the Oregon

Constitution and, in particular, Article I, section 12. See

State v. Campbell, 306 Or 157, 162, 759 P2d 1040 (1988) (this

court considers state law questions before turning to fed-

eral claims). Because we conclude that the trial court’s order

violated that state constitutional provision, we do not reach

defendant’s Fifth Amendment argument.

A. The act of unlocking the phone would have provided

incriminating, testimonial evidence.

Article I, section 12, of the Oregon Constitution pro-

vides that “[n]o person shall be * * * compelled in any crim-

inal prosecution to testify against [him or herself].” “[T]o

receive protection under the self-incrimination clause of

Article I, section 12, a person’s statement or conduct must

(1) be ‘testimonial’ evidence, (2) be ‘compelled,’ and (3) be

evidence that could be used against the person in a crimi-

nal prosecution.” State v. Fish, 321 Or 48, 53, 893 P2d 1023

(1995). In this case, there is no dispute that the trial court’s

order compelled defendant to unlock the phone; the question

is whether that compelled act qualifies as a statement that

would provide incriminating, “testimonial” evidence.

Defendant argues that it would, relying on Fish.

There, this court reasoned that acts necessary to perform

certain field sobriety tests were testimonial because they

“require[d] the individual to communicate information

to the police about the individual’s beliefs, knowledge, or

state of mind.” Id. at 60. Although we discussed the tests

that the defendant performed as “acts,” and observed that

Cite as 367 Or 498 (2021) 509

statements protected by Article I, section 12, need not be

verbal, the aspects of the field sobriety tests that we con-

cluded were “testimonial” in Fish involved verbal communi-

cations, such as counting, answering questions relating to

a person’s residence and date of birth, estimating a period

of time, and reciting the alphabet. Id. Here, the trial court’s

order did not require that defendant engage in any verbal

communication; the court did not order defendant to state

the passcode. The court’s order also did not require defen-

dant to perform an act that would expressly communicate

her beliefs or knowledge—for example, by nodding her head

to say, “yes,” pointing to something, or translating or decod-

ing an otherwise indecipherable statement. The court did

not order the officers to observe the entry of the passcode or

order defendant to permit the officers to do so. Nevertheless,

defendant argues, the court’s order required that she per-

form an act that would provide the state with incriminating,

testimonial information and thus violated her right against

self-incrimination under Article I, section 12.

Defendant makes two independent arguments to

support her position. First, defendant argues that the act

of unlocking the phone would communicate her beliefs,

knowledge, or state of mind. Specifically, defendant asserts

that the act of unlocking the phone would provide testimo-

nial evidence because it would demonstrate that defendant

knows the password to the phone, owns it or has access to it,

and perhaps that she also knows or created the information

that it contains.

Second, defendant and the American Civil Liberties

Union of Oregon, the American Civil Liberties Union, and

the Electronic Frontier Foundation, who appear as amici

in support of defendant, argue more broadly that the act of

unlocking the phone would provide protected “testimony,”

even if the act did not communicate defendant’s beliefs,

knowledge, or state of mind. Because of its breadth, we begin

with that argument and note that it includes several inter-

woven strands. The first is that the state cannot compel a

defendant to perform an act that serves the same function

as would a compelled statement. Defendant contends that

the state could not compel defendant to make a statement

revealing the phone’s passcode and therefore cannot compel

510 State v. Pittman

defendant to perform an act—unlocking the phone—that

would provide the state with the same advantage.

Defendant is correct in her initial premise. The

state could not compel defendant to reveal the passcode to

the phone. Requiring her to do so would compel her to make

an express verbal or written statement. As the state rec-

ognizes, an order requiring such a statement would be an

order compelling testimonial evidence. But accepting the

premise does not mean that defendant’s conclusion follows.

This court has made a distinction between incriminating

statements—which are protected by Article I, section 12—

and certain noncommunicative acts—which are not. And

this court has done so even when both serve the same pur-

pose. For example, a person cannot be compelled to make a

verbal or written statement about whether the person has a

tattoo, what the tattoo looks like, or where it is located, but

the person may be compelled to stand up in court, permit-

ting the observation of the tattoo. Such an act is not impli-

cated by Article I, section 12. See State v. Cram, 176 Or 577,

582-83, 160 P2d 283 (1945) (explaining that a person “may

be required to do many things without having [his or her]

constitutional rights against self-[in]crimination invaded,”

including, for example, standing up in court, appearing at

the scene of the crime, putting on clothing to see if it fits,

removing glasses, and removing clothing so that the jury

may examine scars and tattoos). We reject defendant’s argu-

ment that the act of unlocking the phone is testimonial solely

because it serves the same purpose as compelling defendant

to reveal the passcode itself.

We also reject the strands of defendant’s argument

drawn from State v. Vondehn, 348 Or 462, 236 P3d 691 (2010),

and Cram. According to defendant, those cases stand for the

following propositions: (1) that compelled statements and

the compelled production of physical evidence are entitled to

equivalent constitutional protection; and (2) that defendant

cannot be compelled to do an act that would lead the state to

physical evidence that could be used against her.

In Vondehn, this court held that officers had vio-

lated the defendant’s Article I, section 12, rights by failing

to give Miranda warnings and that both the statements that

Cite as 367 Or 498 (2021) 511

the defendant had made and the physical evidence derived

from those statements must be suppressed. Vondehn, 348 Or

at 469-70. The state had argued that Article I, section 12,

“does not prohibit the admission of physical evidence, even

physical evidence that is a ‘fruit’ of a defendant’s compelled

testimony; it prohibits only compelling a person to ‘testify.’ ”

Id. at 467. We rejected that argument, explaining that if the

state illegally obtains testimony, then Article I, section 12,

prohibits the admission of both “compelled statements and

physical evidence derived from such statements.” Id. at 469.

Thus, defendant is correct that, for purposes of the exclu-

sionary rule, this court generally treats illegally obtained

statements and the physical evidence derived from those

statements equivalently. Vondehn does not, however, stand

for the proposition that compelled statements and acts that

lead to physical evidence must always be treated the same

or that a defendant can never be compelled to perform an

act that aids the state in obtaining incriminating evidence.

Defendant overreads Vondehn.

Defendant does the same with Cram, a case that this

court discussed in Vondehn. In Vondehn, we cited Cram for

the proposition that “the constitutional privilege against self-

incrimination had generally been held to be declaratory of the

common-law privilege and that that privilege was not limited

to testimonial utterances, but extended to prevent the com-

pelled production of documents or chattels.” Vondehn, 348 Or

at 468 (discussing Cram, 176 Or at 581-82). But the holding in

Cram was that the admission of the testimony of a physician

who took the defendant’s blood sample into evidence did not

violate defendant’s Article I, section 12, rights, because the

defendant had not been required to “establish the authentic-

ity, identity or origin of the blood; those facts were proved

by other witnesses.” Cram, 176 Or at 593. Cram is therefore

consistent with the analysis we undertook in Fish, where we

looked to whether the act at issue required the defendant to

communicate information about the defendant’s knowledge,

beliefs, or state of mind. Fish, 321 Or at 60. This court’s

prior cases do not support an argument that Article I, sec-

tion 12, protects noncommunicative acts which provide, lead

to, or assist the state in obtaining incriminating physical

evidence.

512 State v. Pittman

Defendant’s more nuanced argument is that an

act that requires mental effort is different than an act that

requires only physical effort. Defendant contends that,

although a person may “be forced to surrender a key to a

strongbox containing incriminating documents,” the person

may not “be compelled to reveal the combination to a wall

safe—by word or deed.” The latter, defendant posits, is what

she was required to do here; that is, to reveal her knowledge

of the password by deed, rather than by word.

The key-combination metaphor comes from Justice

Stevens’s dissent in Doe v. United States, 487 US 201, 219,

108 S Ct 2341, 101 L Ed 2d 184 (1988) (Doe II). In Doe II,

the petitioner, who was the target of a federal grand jury

investigation, had invoked his Fifth Amendment privilege

against self-incrimination when asked to authorize for-

eign banks to disclose records of his accounts. 487 US at

203-04. The banks also had been served with subpoenas

commanding them to hand over the documents, but the

banks, which were located in the Cayman Islands, refused

to comply, citing that government’s bank-secrecy laws. Id. at

203. The federal government sought a court order compel-

ling the petitioner to execute a consent directive authorizing

the Cayman banks to release petitioner’s account informa-

tion. Id. The district court initially denied the government’s

request, but the Fifth Circuit reversed that decision. Id. at

204-05. On remand, the district court ordered the petitioner

to execute the consent directive, but he refused, and the

court held him in contempt. Id. at 205.

The United States Supreme Court concluded that

the district court’s order requiring the petitioner to execute

the consent directive was lawful. Id. at 219. Citing Fisher,

the Court began by stating that “the contents of the foreign

bank records sought by the Government are not privileged

under the Fifth Amendment.” Id. at 206. The question, then,

was whether the act of executing the consent form direct-

ing the banks to release the records had “independent tes-

timonial significance that [would] incriminate him,” and

whether the Fifth Amendment prohibits government com-

pulsion of that act. Id. at 207. The Court noted that the “exe-

cution of the consent directive at issue in this case obviously

[was] compelled, and we may assume that its execution

Cite as 367 Or 498 (2021) 513

would have an incriminating effect.” Id. at 207. The issue

was whether executing the form was “testimonial commu-

nication.” Id. The Court explained that whether a compelled

communication was testimonial “often depends on the facts

and circumstances of the particular case,” and that the case

before it was no exception. Id. at 214-15. The record in Doe II

showed that the consent directive was drafted carefully to

not reference a specific account and to speak only in the

hypothetical. Id. at 215. That being the case, the form did not

acknowledge that petitioner even had an account at the for-

eign bank; in fact, the form did not even identify a particular

bank. Id. The form only allowed the government to access a

potential account once the government found it by indepen-

dent investigation of its own officers. Id. As in Fisher, the

government was not “relying upon the ‘truthtelling’ of [the

petitioner’s] directive to show the existence of, or his control

over, foreign bank account records.” Id. (quoting Fisher, 425

US at 411). Consequently, the Court reasoned, the consent

directive was “not testimonial in nature,” and the District

Court’s order compelling petitioner to sign it did not violate

the Fifth Amendment. Id. at 219.

Justice Stevens dissented. Justice Stevens’s view was

that the Fifth Amendment right against self-incrimination

applies in any instance where a person can be compelled

“to use his mind to assist the prosecution in convicting him

of a crime.” Id. Thus, a person may “be forced to surrender

a key to a strongbox containing incriminating documents,”

but a person may not “be compelled to reveal the combina-

tion to a wall safe—by word or deed.” Id. In Justice Stevens’s

view, the majority in Doe II was incorrect in holding that

filling out a form was not protected by the Fifth Amendment

because filling out a form was more akin to providing the

government with the combination to a safe—both require

the use of a person’s mind to assist the prosecution.

In response to Justice Stevens’s argument, the

majority in Doe II also relied on the key-combination met-

aphor but did not accept Justice Stevens’s view that the

use of one’s mind to assist the prosecution is what makes

something testimonial. Instead, the majority stated that the

“expression of the contents of an individual’s mind” is what

makes something “testimonial communication for purposes

514 State v. Pittman

of the Fifth Amendment.” Doe II, 487 US at 210 n 9 (inter-

nal quotations omitted). Applying that test, the majority

explained that it “simply disagree[d] with the dissent’s con-

clusion that the execution of the consent directive at issue

here forced petitioner to express the contents of his mind.”

Id. The majority concluded its footnote by stating that, “[i]n

our view, such compulsion is more like being forced to sur-

render a key to a strongbox containing incriminating doc-

uments than it is like being compelled to reveal the combi-

nation to petitioner’s wall safe.” Id. (internal quotations and

alterations omitted). Thus, the majority used the dissent’s

metaphor to spotlight the basis for its own decision. When a

defendant is required to communicate beliefs or knowledge,

as she does when she is compelled to reveal a safe’s combina-

tion, then the defendant provides testimonial evidence. But

when a defendant is required to do an act that is not simi-

larly revelatory, that act is not testimonial simply because

the act required the defendant to use her mind.

The Court adhered to that distinction, again using

the key-combination metaphor, in Hubbell. There, the defen-

dant was under investigation for tax evasion and other

crimes relating to the Whitewater Development Corporation.

Hubbell, 530 US at 30. During that investigation, the gov-

ernment served the defendant with a subpoena to appear

in front of a grand jury and produce requested documents.7

Id. at 31. The requested documents fell into 11 broadly

described categories. Id. To produce the requested docu-

ments, the defendant had to examine numerous documents,

and he ultimately produced 13,120 pages of material. Id. at

42. The Court concluded that, because the 11 different cate-

gories were described so broadly, the collection and produc-

tion of the documents was “tantamount to answering a series

of interrogatories asking a witness to disclose the existence

and location of particular documents fitting certain broad

descriptions.” Id. at 41. The Court noted that, when assem-

bling the documents into the different described categories,

7

The defendant had initially pled guilty to tax evasion and other crimes, and

when he did so, he had agreed to produce documents pertaining to the investiga-

tion. The grand jury was investigating whether the defendant had violated his

first plea agreement. Hubbell, 530 US at 42.

Cite as 367 Or 498 (2021) 515

“ ‘[i]t was unquestionably necessary for respondent to make

extensive use of ‘the contents of his own mind’ in identify-

ing the hundreds of documents responsive to the requests

in the subpoena. * * * The assembly of those documents was

like telling an inquisitor the combination to a wall safe, not

like being forced to surrender the key to a strongbox.’ ”

Id. at 43 (quoting Curcio v. United States, 354 US 118, 126,

77 S Ct 1145, 1 L Ed 2d 1225 (1957)).

The Court explained that, whatever the scope of

the Fisher rationale, the case “plainly [fell] outside of it.”

Hubbell, 530 US at 44. In Fisher, the government “already

knew that the documents were in the attorneys’ posses-

sion and could independently confirm their existence and

authenticity through the accountants who created them.”

Id. at 44-45. By contrast, in Hubbell, the government had

not shown “that it had any prior knowledge of either the

existence or the whereabouts of the 13,120 pages of docu-

ments ultimately produced.” Id. at 45. Because the defen-

dant’s “act of production had a testimonial aspect, at least

with respect to the existence and location of the documents

sought,” and because the government could not establish,

as it had in Fisher, that it already knew those facts, then

the Fifth Amendment prohibited the compelled production

of the documents. Id.

In this case, as noted, defendant and her amici rely

on the key-combination metaphor for their argument that

a phone’s passcode is more analogous to a safe’s combina-

tion than it is with its key. That is no doubt true: A phone’s

passcode, like the combination to a safe, is a set of numbers

that unlocks something. But, as the United States Supreme

Court has used that metaphor, the important distinction is

not whether the defendant will be required to use her mind

to unlock the device, but, instead, whether the act of unlock-

ing the device will reveal something about the workings of

the defendant’s mind. As noted, in Doe II, the Court appears

to have accepted that, although filling out a bank form

requires an individual to use his or her mind, that mental

exercise alone does not make that act testimonial. Instead,

the Court said, “to be testimonial, an accused’s communi-

cation must itself, explicitly or implicitly, relate a factual

assertion or disclose information.” Doe II, 487 US at 210.

516 State v. Pittman

The Court applied that test in Hubbell: Because the sub-

poena required the defendant to use his own judgment to

determine whether a particular document fell into a certain

category and the act of turning over the documents would

have communicated those choices, the act in Hubbell was

more like giving testimony than it was an “act” without tes-

timonial aspects. Hubbell, 530 US at 42.

We can, of course, adopt a different view in con-

struing Article I, section 12, and hold that it is the use of

the mind to assist the state that makes an act testimonial.

But, to date, our decisions have been consistent with the

analysis of the United States Supreme Court. In State v.

Fisher, 242 Or 419, 422, 410 P2d 216 (1966), for example, we

held that requiring a handwriting exemplar does not vio-

late the privilege against self-incrimination. Like the act

of signing a bank form, providing a handwriting exemplar

requires the use of the mind, but, like the Court in Doe II,

we did not conclude that that mental effort made that act

testimonial. And in Fish, we, again like the Court in Doe II,

explained the testimonial significance of conduct as stem-

ming from what it “communicates” about a person’s “beliefs,

knowledge, or state of mind.” Fish, 321 Or at 56. Today we

affirm that articulation and, like most other state courts

that have considered the issue,8 decline to hold that an act is

testimonial whenever its performance requires an individ-

ual to use his or her mental faculties. The information that

8

We are aware of only one state trial court decision that could be understood

to accept the argument that the right against self-incrimination prohibits an

act that would require a defendant to use his or her mind. See Commonwealth v.

Baust, 89 Va Cir 267, 2014 WL 10355635 at *4 (Va Cir Ct 2014) (explaining that

the defendant could not “be compelled to divulge through his mental processes

the passcode for entry,” but, on the contrary, “[t]he fingerprint, like a key, * * *

does not require the witness to divulge anything through his mental processes”

(internal quotation omitted)). The basis for the court’s decision in Baust is not

entirely clear, however. We cannot discern whether the government’s motion

was a motion to compel the defendant to unlock the cell phone or a motion to

compel defendant to disclose the passcode itself, and the court seems to distin-

guish between an order requiring a fingerprint or requiring that the defendant

“divulge” mental processes.

As we will explain, most other courts have applied a form of the Fisher rule

to permit orders compelling criminal defendants to use passcodes to unlock cell

phones or other electronic devices. The dispute among courts is not about whether

to adopt such a rule, but about what the state must know to take advantage

of it.

Cite as 367 Or 498 (2021) 517

an act communicates, and not the uncommunicated use of

the mind, is what makes an act testimonial.

For the reasons given, we reject defendant’s broad

argument that the act of unlocking the phone would provide

testimonial evidence even if it did not communicate defen-

dant’s thoughts, beliefs, knowledge, or state of mind.9 We

return to defendant’s primary argument, from the United

States Supreme Court’s decision in Fisher and this court’s

decision in Fish, that the act of unlocking the phone was

protected by Article I, section 12, because it would commu-

nicate that very information.

The first step in that analysis is to determine the

facts, if any, that the compelled act would communicate. As

Fisher, Hubbell, and Doe II illustrate, that depends on the

order that was given. In Fisher, the taxpayers were ordered

to produce specified listed documents. Doing so, the Court

held, would communicate that the documents existed, that

the taxpayers had access to them, and that the taxpayers

believed “that the papers are those described in the sub-

poena.” Fisher, 425 US at 410. In Hubbell, the defendant

was ordered to produce documents that fell within certain

broadly described categories. 530 US at 42. Doing so would

communicate not only that the documents existed, but that

they fell into the described categories. Id. at 44-45. In Doe II,

the defendant was ordered to sign bank consent forms. 487

US at 203. Doing so, the Court held, would not communicate

facts of any sort. Id. at 215.

Here, defendant was ordered to unlock the phone

using a passcode. Thus, as the state acknowledges, defen-

dant’s performance of that act would communicate that she

knew the passcode. If the court had ordered defendant to do

something different, what would be communicated by com-

pliance with the order may have been different as well. For

9

We also reject a third argument that defendant makes. Defendant asserts

that she entered the passcode to the phone and that officers observed her doing

so, obtaining the code and thereby obtaining testimonial evidence. We reject that

argument because the trial court’s order did not compel defendant to provide the

passcode; it required defendant to unlock the phone. Initially, the court ordered

defendant to give the state the passcode, but after defendant took issue with that,

the court revised its order, stating that defendant would be handed the phone so

she could “unlock it without providing the information to us.”

518 State v. Pittman

example, had the phone been one that could be unlocked by

placing a finger on the phone, and had the court ordered

defendant to place her finger on the phone, then, by per-

forming that act, defendant would communicate only that

she knew how to move her finger, not that she knew how to

unlock the phone. If, however, the court had ordered defen-

dant to unlock the phone, without specifying the means

she should use to do so, then any act that she performed

that served to unlock the phone would communicate her

knowledge—that she knew how to comply with the court’s

order and how to access the phone’s contents. Here, as the

state acknowledges, the court’s order was of that ilk. It

required defendant to unlock the phone using a passcode,

and compliance with that order would communicate that

defendant knew that passcode. We conclude that the act of

unlocking the phone was an act that would provide incrimi-

nating testimonial evidence.

B. In narrow circumstances, Article I, section 12, permits a

court order requiring that a criminal defendant unlock a

cell phone.

That conclusion does not end our analysis, however.

The state argues that, even if the act of unlocking a cell

phone would provide testimonial evidence, its testimonial

aspects are insignificant in the circumstances at issue here

and, thus, are not entitled to constitutional protection. The

state submits that this case is different from other instances

in which the state seeks to compel testimony because, the

state contends, it was not interested in having defendant

unlock the phone to learn the facts that the act would com-

municate: The state did not seek to learn whether defendant

knew the passcode to the phone; it already knew that she

did. Instead, the state sought to compel defendant’s act to

gain access to certain information maintained on the phone.

The state argues that in these circumstances, this court

should construe Article I, section 12, to permit the trial

court’s order and rely on the United States Supreme Court’s

reasoning in Fisher.10

10

The state also argues that this court already has adopted Fisher’s reason-

ing. We disagree. In the case on which the state relies, State v. Janscek, 302 Or

270, 285, 730 P2d 14 (1986), this court focused, as the United States Supreme

Cite as 367 Or 498 (2021) 519

In addressing that argument, we emphasize that

we are asked to apply the reasoning from Fisher only in the

limited factual circumstances that this case presents: In

this case, the state already had obtained a warrant to seize

and search the cell phone and the order to unlock the phone

would have required an act that communicated that defen-

dant knows how to unlock the phone.

Both those factual circumstances are significant to

our analysis. When the state has obtained a warrant that

permits it to search a cell phone, the state will have been

required to describe, with reasonable particularity, the

evidence that it believes is on the phone and its relevance

to the state’s investigation. See Mansor, 363 Or at 216-18

(explaining that “a warrant must describe, with as much

specificity as reasonably possible under the circumstances,

what investigating officers believe will be found on the elec-

tronic devices” including, “if relevant and available, the time

period during which that information was created, accessed,

or otherwise used”). (Emphasis added.) That requirement

originates from Article I, section 9, and protects an individ-

ual’s right to privacy in the contents of items that are sub-

ject to search. Thus, when the state has obtained a warrant

to search a cell phone in compliance with Article I, section

9, we are assured that a defendant’s right to privacy in the

contents of that phone is adequately protected.

We also consider it significant that we are asked

to apply the Fisher reasoning only to testimonial evidence

that may be inferred from an act with limited testimonial

significance. As we indicated at the outset, the act at issue

is not an act that would expressly communicate a defen-

dant’s beliefs, knowledge, or state of mind. Instead, the act

of unlocking the phone would permit a factfinder to draw an

Court had in Fisher, on whether the defendant had been compelled to create the

document that the state sought. In Janscek, we held that a letter that the defen-

dant had written to his employer stating that he planned to kill his wife was not

protected by Article I, section 12: There was not “one bit of evidence that any

representative of the state or any other governmental body in any way compelled

defendant to communicate to [his employer] defendant’s intent to commit an act

of violence against his wife.” Id. at 284-85. In Janscek, the defendant did not

argue, as did the taxpayers had in Fisher, that the act of turning over the letter

had a communicative aspect and was protected by Article I, section 12. We there-

fore had no occasion to address that issue, and we consider it afresh today.

520 State v. Pittman

inference about the defendant’s beliefs, knowledge, or state

of mind—that defendant knows its passcode—and that

inference would be of limited significance. The state asks us

to adopt a rule that would permit it to compel that act when

it already knows the information that could be inferred

from it.

Thus, the path that the state urges us to take is a

narrow one, and rightly so: The obstacle the state faces is

a sizable one. Generally, as the state recognizes, Article I,

section 12, forbids an order compelling “testimony” without

an offer of transactional immunity. State v. Soriano, 68 Or

App 642, 684 P2d 1220 (en banc), aff’d and opinion adopted,

298 Or 392, 693 P2d 26 (1984) (per curiam).11 In Soriano,

the defendants had refused to testify before a grand jury

that was investigating a crime, invoking their rights under

Article I, section 12, of the Oregon Constitution. 68 Or App

at 644. The trial court granted the defendants derivative-use

immunity and ordered them to testify. Id. Derivative-use

immunity typically precludes the state from using the com-

pelled statements of a witness and the evidence derived

from those statements in the prosecution of that witness.

Id. at 644 n 3. The state argued that derivative-use immu-

nity was a sufficient substitute for the defendants’ constitu-

tional rights against self-incrimination. Id. at 644-45. The

United States Supreme Court had held that such immunity

is sufficient because the government and the witness are left

“ ‘in substantially the same position as if the witness had

claimed his privilege’ in the absence of a grant of immunity.”

See Kastigar v. United States, 406 US 441, 458-59, 92 S Ct

1653, 32 L Ed 2d 212 (1972) (quoting Murphy v. Waterfront

Comm’n, 378 US 52, 79, 84 S Ct 1594, 12 L Ed 2d 678 (1964)).

This court rejected that argument and instead held

that the state could not compel the defendants to testify in

front of a grand jury without providing transactional immu-

nity. Soriano, 68 Or App at 662. Transactional immunity pre-

cludes a state from prosecuting the witness for any offense

11

Soriano is a Court of Appeals decision that this court adopted in toto.

Soriano, 298 Or at 394. Because we “agree[d] with the analysis and conclusion

of the Court of Appeals and adopt[ed] its opinion as our own,” id., we refer to the

Court of Appeals decision in Soriano just as we would any other opinion of this

court.

Cite as 367 Or 498 (2021) 521

relating to the compelled statements. Id. We explained

that, in Kastigar, the United States Supreme Court had

held that derivative-use immunity was appropriate because

such immunity was a “substantial” substitute for a person’s

constitutional right not to be a witness against oneself. Id.

(discussing Kastigar). The Court had held that the Fifth

Amendment is not a complete bar to compelled testimony

and that a substitute for the right could suffice because

such a rule would protect a person’s constitutional rights

and, at the same time, would “accommodate the interests

of the State and Federal Governments in investigating and

prosecuting crime.” Murphy, 378 US at 79. Although we also

permitted a “substitute” for the defendant’s Article I, section

12, rights, we held that the substitute must be the same in

“scope and effect.” Soriano, 68 Or App at 662 (internal quo-

tation omitted). We reasoned that, to be the same in scope

and effect, transactional immunity was necessary to protect

the witness’s Article I, section 12, rights: “A witness granted

immunity and then required to testify has not received full

value for that lost right if there is any way the testimony can

cause harm to the witness in that prosecution.” Id. at 664

(emphasis added). In Soriano, transactional immunity was

necessary to ensure that the compelled statements did not

affect any of the state’s discretionary decisions and that the

defendants would be in the same position they would have

been had they not testified at all. Id. at 663.

Thus, under Soriano, the state is generally prohib-

ited from compelling a defendant’s incriminating statements

without providing transactional immunity. Id. at 664. And,

as we have concluded above, compelled testimonial conduct

is generally subject to the same Article I, section 12, protec-

tions as are compelled statements. Consequently, as a gen-

eral rule, the state is prohibited from compelling a defen-

dant to perform an act that provides testimonial evidence

without providing transactional immunity. The state con-

tends that we should reach a different conclusion, however,

when the state already knows the facts that such an act

would communicate.

The state contends that, when it already has evi-

dence that a defendant knows the passcode to a phone and

522 State v. Pittman

does not seek to have the defendant unlock the phone for the

purpose of discovering that passcode, then the compelled

act loses its testimonial significance. The act serves only to

“open the door” to the evidence on the phone—evidence that

a search warrant permits the state to obtain. Defendant

responds that, even if the state already has some evidence

that defendant knows the passcode to the phone, the per-

formance of that act would provide additional, and perhaps

stronger, evidence of that fact. Defendant argues that, if the

state were permitted to compel her to unlock the phone, the

state could benefit from that additional evidence and cause

harm to the defendant, violating defendant’s right against

self-incrimination.

The problem is a gnarly one and both sides’ interests

are worthy of protection. Because it has a valid warrant, the

state is entitled to search the contents of the phone; it is only

modern technology that keeps the state from obtaining that

evidence. On the other hand, forcing defendant to unlock

the phone will do more than provide the state with access

to that evidence; the act of unlocking will provide the state

with evidence that has testimonial aspects, even if its sig-

nificance is limited. And, because the act of unlocking a cell

phone provides incriminating testimonial evidence, requir-

ing that defendant perform that act could cause harm to

defendant by providing the state with evidence that it could

use in its analysis, investigation, or prosecution of the case.

This particular problem is not one that the drafters of the

Oregon Constitution could have anticipated, and we would

benefit from its consideration in the Oregon Legislative

Assembly. Although “the state and federal constitutions

impose outer limits on the permissible range of authority to

conduct searches and seizures,” constitutions do not “define

the circumstances and manner in which, within those outer

constitutional limits, the authority should or should not be

employed.” State v. Greene, 285 Or 337, 346, 591 P2d 1362

(1979) (Linde, J., concurring). Those “are questions which,

as far as the powers of the state and local officers are con-

cerned, are left to state law.” Id.

As presented, however, the question before us is

one of outer constitutional limits, and we must undertake

Cite as 367 Or 498 (2021) 523

to answer it. As we will explain, we can see our way if we

understand that Soriano permits a “substitute” for the

right against self-incrimination when the substitute places

a defendant in the same position she would have been in

had she not testified at all. Soriano, 68 Or App at 662-63

(holding that Article I, section 12, requires substitute that

protects defendant to “ ‘same extent in scope and effect’ ”

(quoting Counselman v. Hitchcock, 142 US 547, 585, 12 S Ct

195, 35 L Ed 1110 (1892)). For us, the question is whether

it is possible to allow a court to issue an order compelling a

defendant to unlock a cell phone—thereby compelling her

to communicate, by inference, that she knows the passcode

and has access to that phone—while still placing her in the

same position she would have been in had she not provided

that communication.

To place defendant in the same position she would

have been in, we must account for the two different ways in

which the act of unlocking a phone could harm defendant:

It could provide information that the state did not already

have, or it could bolster or add to information that the state

already has. In the first instance, the act, as Soriano warns,

could significantly aid the state in its analysis, investiga-

tion, or prosecution of the case. So, for instance, if officers

found a cell phone in an apartment house parking lot, an

order compelling all residents of the complex to unlock the

phone could provide the state with valuable information

that it did not already have about the identity of the person

who knows its passcode. It would be difficult to cabin the

state’s use of that new information without a grant of trans-

actional immunity. If, however, the state already knows that

a defendant can unlock the phone using a passcode, the fact

that the defendant does so serves only to confirm the state’s

knowledge and the risk of harm is reduced.

The state’s argument for a rule that permits it to

compel defendant to unlock a cell phone is premised on its

contention that it is not interested in, and does not need,

the testimonial aspects of that act; all it needs, and seeks

to compel, is the act itself. At trial in this case, the state

informed the court that it would not use defendant’s act

of unlocking the phone as evidence; it would use it only to

524 State v. Pittman

gain access to the phone.12 In its briefing in this court, the

state appears to accept that a prohibition on other use would

be imposed; the state acknowledges that judicial estoppel

principles could prevent the state from offering an act in

evidence after the state has argued that it has no need for

the testimonial evidence that the act would provide. See

Hampton Tree Farms, Inc. v. Jewett, 320 Or 599, 609-10, 892

P2d 683 (1995) (acknowledging that judicial estoppel has no

“single, uniform formulation,” but at the very least, it “pre-

clude[s] a party from taking an inconsistent position in a

later proceeding if that party has received a benefit from

the previously taken position in the form of judicial success”

(internal quotation omitted)). We agree with the state that a

prohibition on the use of the compelled act would be appro-

priate; however, principles of judicial estoppel do not pro-

vide sufficient protection of the constitutional right at issue.

Article I, section 12, requires sterner stuff. To comply with

the Oregon Constitution, a court order compelling a defen-

dant to unlock a cell phone so that the state may execute a

valid search warrant (1) could issue only if the state already

knows the information that the testimonial aspects of the

act will communicate and (2) must prohibit the state from

using the testimonial aspects of that act against the defen-

dant for any purpose. Those prohibited uses would include,

but not be limited to, use as evidence at the defendant’s

trial, use to seek additional search warrants, use to obtain

an indictment, or use in sentencing. Only such a rule would

protect a defendant to “the same extent in scope and effect,”

as the right against self-incrimination. Soriano, 68 Or App

at 662 (internal quotation omitted).

We recognize that, if a defendant complies with an

order to unlock a phone, that act will reveal the contents of

the phone providing the state with evidence that it could not

otherwise obtain. But, as we have explained, once the state

has obtained a valid warrant to search a phone, a defen-

dant does not have a legal right to keep the contents of the

phone from the state. It is only the testimonial aspects of

12

Below, the state asserted that the act of unlocking the phone was “not

something that [the state was] going to use against [defendant]” to show that the

phone was hers or that it was in her possession because the state “already [had]

evidence that it was in her purse and in her possession.”

Cite as 367 Or 498 (2021) 525

the act of unlocking the phone, and not the practical result

of unlocking the phone, that have constitutional significance

under Article I, section 12. The testimonial aspects of the

act have constitutional significance, which we must address;

the access that the act provides does not.

We also recognize that, in Oregon, an individual’s

right against self-incrimination must be protected, no mat-

ter how weighty the state’s contrary interests may be. But

Article I, section 12, permits a substitute for that right that

is protective to “the same extent in scope and effect,” Soriano,

68 Or App at 663, as the right against self-incrimination

and, in the circumstances that this case presents, we can

craft a rule that meets those terms. There may come a day in

which the state can conduct, pursuant to warrant, an appro-

priately limited search of a cell phone without compelling a

defendant’s assistance to unlock it. See State v. Brown, 301

Or 268, 278 n 6, 721 P2d 1357 (1986) (“In this modern day

of electronics and computers, we foresee a time in the near

future when the warrant requirement of the state and fed-

eral constitutions can be fulfilled virtually without excep-

tion.”); State v. Kurokawa-Lasciak, 351 Or 179, 188-89, 263

P3d 336 (2011) (noting that the majority in Brown had sug-

gested that its decision was “a temporary accommodation

subject to change in the near future when technology would

permit neutral magistrates to” issue warrants “more expe-

ditiously”). But, today, faced with the circumstances and

law as they presently exist, we construe Article I, section 12,

to permit an order compelling a defendant to unlock a cell

phone so long as the state (1) has a valid warrant authoriz-

ing it to seize and search the phone; (2) already knows the

information that the act of unlocking the phone, by itself,

would communicate; and (3) is prohibited from using defen-

dant’s act against defendant, except to obtain access to the

contents of the phone.

C. The trial court’s order did not comply with Article I,

section 12.

We must now consider whether the trial court’s

order complied with the requirements just articulated. See

State v. Crenshaw, 307 Or 160, 168, 764 P2d 1372 (1988) (a

defendant may challenge the merits of the underlying order

526 State v. Pittman

in an appeal from an order of contempt where “for consti-

tutional, statutory, or practical reasons, no other remedy,

either by appeal or mandamus, was available”). As noted,

there is no dispute that the first requirement—that the state

have a valid warrant permitting it to search the phone—is

met. Thus, we address the second and third requirements—

that the state already knows the information that the act

of unlocking the phone would communicate and that the

order prohibits the state from using defendant’s act against

defendant.

Defendant begins by arguing that, to establish

that the state already knows the information that the act

of unlocking a phone would communicate, the state must

prove not only that it already knows that defendant knows

the passcode to the phone but also that it already knows

what will be found when its search is conducted. For reasons

we have explained above, we reject that argument. 367 Or

at 524-25. As noted, the rule we have announced requires

the state to establish that it already knows the information

that the act of unlocking the phone would communicate.

And we have explained that, because the trial court’s order

in this case required defendant to unlock the phone using

the passcode, compliance with that order would communi-

cate that defendant knows the passcode. Due to the nature

of the court’s order—defendant was asked to do something,

not to produce something—compliance would not communi-

cate that the phone contained any particular evidence.13 See

Orin S. Kerr, Compelled Decryption and the Privilege Against

Self-Incrimination, 97 Tex L Rev 767, 775 (2019) (explain-

ing that there is a difference between the testimonial act

of complying with an order to “do” something as opposed

to complying with an order to produce something). The tes-

timonial information that the act communicates, which, in

this case, does not include information about the phone’s

content, is what the state must demonstrate it already

knows.

13

For this reason, we disagree with Professor Laurent Sacharoff, who

appears as amicus curiae in this case. See Laurent Sacharoff, What Am I Really

Saying When I Open My Smartphone: A Response to Orin S. Kerr, 97 Tex L Rev

Online 63, 65 (2019) (arguing that government must show that it already knows

what evidence will be found on the phone).

Cite as 367 Or 498 (2021) 527

Many of the other courts that have considered the

matter agree and generally require that the state establish

only that it knows that the defendant knows the phone’s pass-

code. See State v. Andrews, 243 NJ 447, 480, 234 A3d 1254,

1276 (2020) (“[A]lthough the act of producing the passcodes

is presumptively protected by the Fifth Amendment, its tes-

timonial value and constitutional protection may be over-

come if the passcodes’ existence, possession, and authentica-

tion are foregone conclusions.”); State v. Johnson, 576 SW3d

205, 227 (Mo Ct App 2019), cert den, ___ US ___, 140 S Ct

472, 205 L Ed 2d 286 (2019) (“The facts conveyed through

his act of producing the passcode were the existence of the

passcode, his possession and control of the phone’s passcode,

and the passcode’s authenticity.”); Commonwealth v. Jones,

481 Mass 540, 551, 117 NE3d 702, 713, cert den, ___ US ___,

140 S Ct 545, 205 L Ed 2d 345 (2019) (explaining that the

Massachusetts Constitution “requires the Commonwealth

to prove that a defendant knows the password to decrypt an

electronic device beyond a reasonable doubt for the foregone

conclusion exception to apply”).

Not all courts reason similarly, however. Others

have held that, because the unlocking or decryption of a

device would provide the government with the information

found on the device, the government already must know what

information will be found on the device. See People v. Spicer,

125 NE3d 1286, 1291 (Ill App 2019) (rejecting state’s argu-

ment that it must show only that defendant knew the pass-

code and explaining that “what the State actually needed

to establish with reasonable particularity was the contents

of the phone, which it did not do”); G.A.G.L. v. State, 257 So

3d 1058, 1064 (Fla Dist Ct App 2018) (determining that the

focus of the foregone conclusion doctrine should be on the

evidence sought, and in a case involving the password to a

cell phone, the evidence sought is not the passcode but the

“actual files or evidence on the locked phone,” and “[w]ithout

reasonable particularity as to the documents sought behind

the passcode wall, the facts of this case plainly fall outside

of the foregone conclusion exception” (internal quotation

omitted)); In re Grand Jury Subpoena Duces Tecum Dated

Mar. 25, 2011, 670 F3d 1335, 1337, 1347 (11th Cir 2012) (gov-

ernment could not compel act because government did “not

528 State v. Pittman

know what, if anything, is held on the encrypted drives”);

cf. United States v. Apple MacPro Computer, 851 F3d 238,

248 (3d Cir 2017) (where government “provided evidence to

show both that files exist on the encrypted portions of the

devices and that Doe can access them,” any error was not

clear or obvious).

The decisions in those cases reflect privacy con-

cerns that are echoed by defendant and her amici.14 Those

concerns are legitimate. The breadth of personal informa-

tion maintained on cell phones is far beyond that typically

inscribed in a diary or day planner. In Oregon, those con-

cerns are addressed in Article I, section 9, of the Oregon

Constitution. That provision protects the right to privacy

in electronic devices and generally requires that the state

obtain a warrant before searching such devices. See State

v. Munro, 339 Or 545, 551, 124 P3d 1221 (2005) (“Article I,

section 9, protects both possessory and privacy interests

in effects.”). That provision also requires that a warrant

explain, with reasonable particularity, what evidence offi-

cers are authorized to look for and the basis for the state’s

conclusion that it has probable cause to believe that such

evidence exists. Mansor, 363 Or at 216 (a warrant must

describe, “with as much specificity as reasonably possible

under the circumstances, what investigating officers believe

will be found on the electronic devices,” and “the ‘what’ is a

description of the information related to the alleged crimi-

nal conduct which there is probable cause to believe will be

found” on the device (emphases in original)). Even so, there

is a potential that, when executing a warrant to search an

electronic device, the state may see more than the warrant

permits: “Even a reasonable search authorized by a valid

warrant necessarily may require examination of at least

some information that is beyond the scope of the warrant.”

Id. at 220. Consequently, this court has devised a rule that

14

For instance, the Indiana Supreme Court noted in Eunjoo Seo v. State, 148

NE3d 952, 959 (Ind Sup Ct 2020), that “[t]he Supreme Court in Fisher (1976),

Doe I (1984), or Hubbell (2000) surely could not have anticipated that such devices

would become so common or imagined the breadth and depth of information they

could contain.” The court in Eunjoo Seo also expressed concerns about the work-

ability of the Fisher rationale in the cell phone context, noting that compelling a

person to decrypt the device would provide the state with access to more than the

files it already knew existed. Id. at 960-61.

Cite as 367 Or 498 (2021) 529

addresses that potential: When the state uncovers informa-

tion that a warrant did not authorize it to uncover, Article I,

section 9, prohibits the state from using that information at

trial, unless its use comes within an exception to the war-

rant requirement. Id. at 221.

To the extent that defendant asserts that the pri-

vacy protections of Article I, section 9, must be met to satisfy

Article I, section 12, we are not persuaded that today is the

day to decide that issue. In this case, the state obtained a

warrant to search the phone, and defendant does not argue

that the trial court’s order compelling defendant to unlock

her phone violated Article I, section 12, because the warrant

failed to state with reasonable particularity the information

that the state believed would be found on the phone. To the

extent that defendant asserts that the privacy protections

that Article I, section 12, may afford exceed the protections

of Article I, section 9, and require the state to establish

greater knowledge of the contents of a cell phone than would

be necessary to obtain a warrant to search it, we reject that

contention.

Defendant’s next argument is that, even if the state

is required to establish only that it already knows the tes-

timonial information that the act of unlocking a cell phone

will impart, it failed to make that showing in this case.

Here, police officers discovered the phone in defendant’s

purse, which they found in her hospital room. As the parties

agree, the state therefore had some evidence that defendant

possessed the phone. Defendant argues that that evidence is

insufficient. Defendant notes that she did not admit that she

owned the phone or that she knew its password, implicitly

quarreling with the standard that the trial court applied in

reaching its conclusion that the state’s knowledge was suffi-

cient to permit the order.

Below, the trial court determined that, because the

phone was found in defendant’s purse, there was “probable

cause to believe that defendant ha[d] knowledge of the pass-

code and contents of the iPhone.” In Oregon, the “probable

cause” standard reflects a “substantial objective basis” to

believe that, “more likely than not,” something has occurred.

See ORS 131.005(11) (defining “probable cause”). Thus, when

530 State v. Pittman

a court determines, for instance, that an officer had proba-

ble cause to believe that a crime occurred, the court does

not determine that a crime did, in fact, occur; it determines

whether there is factual basis to believe that, more likely

than not, a crime occurred. Put differently, probable cause

is a measure of the basis for a belief; the court determines

whether an officer’s belief is “objectively reasonable in the

circumstances.” State v. Vasquez-Villagomez, 346 Or 12,

23, 203 P3d 193 (2009). There is a difference, therefore,

between determining whether an officer’s belief that defen-

dant knows the passcode to the phone is objectively reason-

able under the circumstances, and determining, as a factual

matter, whether defendant does, in fact, know the passcode.

The trial court in this case concluded that there was prob-

able cause to believe that defendant knew the passcode. As

we explained above, however, Article I, section 12, requires,

as a precondition for an order of this sort, that the state

already know that a defendant knows the passcode to the

phone, and the record does not reflect that trial court made

that finding. A conclusion that the state had probable cause

is not the same as a finding that the trial court, as fact-

finder, was persuaded by the state’s evidence. Consequently,

the court’s order did not meet constitutional muster; defen-

dant’s conviction must be reversed, and this case must be

remanded to the trial court for further proceedings. To

provide guidance in future cases, we think it important to

address in more detail the standard that must be met when

a court conducts that necessary factfinding.

As noted, a trial court must do more than assess, as

a legal matter, whether the state has submitted evidence suf-

ficient to demonstrate a likelihood that a defendant knows

the passcode to the phone and can access it. The trial court

must consider that evidence and, in the role of factfinder,

decide whether it is persuaded. A factfinder may, of course,

have different degrees of confidence in the decisions it makes.

Under the “preponderance of the evidence” standard, the

factfinder must determine whether the facts asserted are

more likely true than false. Riley Hill General Contractor

v. Tandy Corp., 303 Or 390, 402, 737 P2d 595 (1987). Under

the “clear and convincing evidence” standard, the proponent

must establish that the facts asserted are “highly probable.”

Cite as 367 Or 498 (2021) 531

Id. And, to prove facts “beyond a reasonable doubt,” the pro-

ponent must establish that the facts asserted are “almost

certainly true.” Id.; see also State v. Williams, 313 Or 19,

37, 828 P2d 1006 (1992) (explaining that it was erroneous

to describe beyond a reasonable doubt using the phrase

“moral certainty” because, among other things, that phrase

“ ‘may convey the idea to the jury that absolute certainty is

required’ ” (quoting J.P. McBaine, Burden of Proof: Degrees

of Belief, 32 Cal L Rev 242, 258 n 35 (1944))).

Each of those standards has had its appeal to other

courts that have considered the issue before us today. Under

the Fifth Amendment, one federal district court applied,

without discussion, the “preponderance of the evidence”

standard. See United States v. Fricosu, 841 F Supp 2d 1232,

1237 (D Colo 2012) (finding that “government has met its

burden to show by a preponderance of the evidence” that the

laptop at issue belonged to the person compelled to unlock

it). Another federal district court, also considering the Fifth

Amendment, applied a “clear and convincing evidence” stan-

dard. United States v. Spencer, 2018 WL 1964588 (ND Cal

Apr 26, 2018). That court explained that that standard was

appropriate in circumstances involving decryption because

the Fisher rule “is an exception to the Fifth Amendment’s

otherwise jealous protections of the privilege against giving

self-incriminating testimony.” Id. at *3.

And the Massachusetts Supreme Judicial Court

held that, under its constitution, the highest standard—

beyond a reasonable doubt—applies. Jones, 481 Mass at

551, 117 NE3d at 713 (concluding that state constitution

requires the state “to prove that a defendant knows the

password to decrypt an electronic device beyond a reason-

able doubt for the foregone conclusion doctrine to apply”).

The court noted that a standard of proof indicates to the

factfinder “the degree of confidence our society thinks he

[or she] should have in the correctness of [his or her] fac-

tual conclusions.” Id. (internal quotation omitted; first alter-

ation in original). The court explained that “some critical

facts implicating a defendant’s constitutional rights require

proof beyond a reasonable doubt”; for example, the stan-

dard under the Massachusetts Constitution for proving the

532 State v. Pittman

voluntariness of a confession is beyond a reasonable doubt.

Id. at 551, 117 NE3d at 713-14. The court also explained

that, when interpreting the Massachusetts Constitution, it

had “remained vigilant to safeguard against governmental

conduct that could infringe upon” the privilege against self-

incrimination. Id. at 552. Thus, the court concluded, a “high

burden is necessary to ensure that the * * * rights of defen-

dants are adequately protected, and reflects our recognition

that a person’s right to be free from self-incrimination is a

fundamental principle of our system of justice.” Id. at 553,

117 NE3d at 714 (internal quotation omitted).

In Oregon, when measuring the voluntariness of a

defendant’s confession to determine admissibility, this court

requires a different factfinding standard than does the

Massachusetts court. For a confession to be admissible into

evidence at trial, the Oregon Constitution requires the state

to prove voluntariness by a preponderance of the evidence.

State v. Stevens, 311 Or 119, 137, 806 P2d 92 (1991) (“[W]e

hold that, under Article I, sections 9 and 12, the state must

prove the voluntariness of a consent to search, or of a defen-

dant’s statement, by a preponderance of the evidence.”).15

But that does not conclusively establish that a confession

is voluntary; the jury is still free to decide whether the con-

fession in fact was voluntary. See State v. Morris, 83 Or 429,

450, 163 P 567 (1917) (“If the confession is admitted by the

judge and if it comes to the jury with conflicting evidence

as to whether it was voluntary, the jurors are not bound to

assume that the confession was made voluntarily simply

because the judge held that it was admissible.”). The cir-

cumstances here are different in two ways: First, the trial

15

The rule from Stevens—that Article I, section 12, requires that the state

prove the voluntariness of a statement by a preponderance of the evidence—is a

rule that addresses the level of confidence that a trial court must have when act-

ing as factfinder when determining the admissibility of the evidence. See Stevens,

311 Or at 137 (the “threshold question of voluntariness” is a question for the

court when it determines admissibility). The issue we decide today also addresses

the level of confidence a trial court must have in making a factual determina-

tion. We emphasize that that issue is distinct from the issue of what standard of

review should apply on appeal. See State v. Ward, 367 Or 188, 196-200, 475 P3d

420 (2020) (determining what standard of review should apply to other questions

under Article I, section 12). We need not address the issue of what standard of

review applies to the trial court’s finding under these circumstances because, as

we have explained, the trial court did not conduct the required factfinding before

issuing its order.

Cite as 367 Or 498 (2021) 533

court in these circumstances is not tasked with determin-

ing, after the fact, whether a confession was voluntary; the

court is being asked to use its power to compel defendant to

provide testimonial evidence. Second, after the trial court

makes the initial factual finding that a defendant knows the

passcode to the phone, that question will not go to the jury.

In these circumstances, Soriano requires heightened vigi-

lance. First, although we have construed Article I, section 12,

to permit an order compelling a defendant to unlock a cell

phone when an equivalent substitute to the supplanted

right is provided, we are cognizant of the dangers inherent

in such a rule. The state will be prohibited from using that

act to harm a defendant, but no prohibition on use can be

precisely equivalent to invoking the privilege against self-

incrimination. Second, requiring proof beyond a reasonable

doubt provides necessary assurance that the state really

does know the facts that the act of unlocking will convey.

And third, we must remember that, if a defendant does not

comply with an order compelling the act, the defendant

can be held in contempt, as defendant was here. Because

such an order would require a defendant to choose between

relinquishing his or her right against self-incrimination or,

potentially, facing punitive contempt proceedings, we think

it fitting to apply the same standard when issuing the order

as would be applied when enforcing it. See ORS 33.065(9)

(to impose punitive sanctions for violation of a court order,

proof of contempt “shall be beyond a reasonable doubt”). We

agree with the concurrence in Jones that “a person’s right to

be free from self-incrimination is a fundamental principle of

our system of justice,” Jones, 481 Mass at 562, 117 NE3d at

721 (Lenk, J., concurring), and we therefore conclude that,

to obtain an order requiring a defendant to unlock a cell

phone, the state must prove, beyond a reasonable doubt,

that it already knows the information that that act would

communicate.

In this case, we have concluded that the trial court

did not conduct the necessary factfinding to determine

whether the state had established that defendant knew the

passcode to the phone and could access it contents, and,

therefore, that the second requirement that would have

permitted the court to order defendant to unlock the phone

534 State v. Pittman

was not met. The third requirement—that the court’s order

expressly prohibit the state from using the compelled act

against defendant—also was absent, although we recog-

nize that the state apparently did not dispute that such a

requirement would be appropriate. We conclude that the

trial court’s order compelling defendant to unlock the cell

phone violated Article I, section 12.16

III. CONCLUSION

Although Article I, section 12, permits a trial court

order compelling a defendant to unlock a cell phone in cer-

tain circumstances, those circumstances are not present in

this case.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to that court for further proceedings.

16

Because we reverse defendant’s conviction on state constitutional grounds,

we do not reach defendant’s federal constitutional argument.