Indiana Embraces the Fifth Amendment

On June 23, 2020, the Indiana Supreme Court issued a landmark decision on cell phones and personal privacy that has the potential to affect most Hoosiers going forward. In an opinion that strengthens Fifth Amendment protections for everyone who owns a smartphone, the Court held that “[f]orcing [the defendant] to unlock her iPhone for law enforcement would violate her Fifth Amendment right against self-incrimination.” 

One of the big issues here is that the rules of evidence and related considerations were all conceived and written for a pre-smartphone society. A few short years ago, no one was walking around with a pocket-sized computer in their pants. We live in a sci-fi world, though—even by 20th century standards—and some of our technology has a way of clashing with the established way of doing things.

The Fifth Amendment’s self-incrimination clause protects you from being a witness against yourself. In other words, the Constitution says you can’t be compelled to offer testimonial evidence against yourself in any criminal case. Testimonial evidence is more than just  testimony offered from the witness stand.

Testimonial evidence actually has a very broad legal definition, and it includes any verbal or written communication that discloses information. Because of this, it stands to reason that any given smartphone is bound to be loaded with testimonial evidence related to its owner. An unlocked smartphone is typically going to provide access to:

  • private communications
  • personal photographs
  • financial documents
  • web browsing history, and 
  • much, much more.

In this case, the State tried to invoke something called the foregone conclusion exception, which meant it needed to show that it already knew the information it was trying to access. It was not able to do this, because its own evidence showed that investigators had (at best) a general idea of the type of evidence they were looking for.

In a victory for personal privacy, the Indiana Supreme Court has declined to extend the foregone conclusion exception to the Fifth Amendment‘s self-incrimination clause.

The Court noted that “[s]martphones are everywhere and contain everything” and found that “law enforcement sought to compel [the defendant] to unlock her iPhone so that it could then scour the device for incriminating information.” Not only was this unconstitutional, it’s precisely the sort of invasive “investigation” that the self-incrimination clause was designed to prevent.

The opinion pointed to other jurisdictions where the State—before ordering a defendant to unlock their phone—must specifically identify the files it intends to search for. It went on to emphasize that simply providing the phone’s password would give investigators unfettered access to everything on the device in question.

This, the Court explained, would allow for investigative fishing expeditions that “tip the scales too far in the State’s favor.” Unwilling to approve such invasive tactics, the Court struck a blow for personal privacy.

Of course, this isn’t the end of the story. Just because judges aren’t supposed to force you to unlock your phone doesn’t mean they won’t try. The same goes for the police, and anything you say to them can and will be used against you. If you cooperate and allow the police to unlock your phone—that’s that. You’ve just consented to a search of your entire digital life.

Bottom line: Don’t give out your passwords, because once the cat’s out of the bag, it’s hard to pretend otherwise. If you have any questions about searches, privacy, or what to expect from the police, give us a call at 317-632-3642, and remember—always plead the 5th!