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)
                                   

     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 defendant 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. 

, 

 (2019).
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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 delivery of methamphetamine, the trial court ordered defendant 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, 

, 

 (2019).
Although we agree with the state that there are circumstances 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 vehicle 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 discovered 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 officers 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 methamphetamine, and booked her into jail.
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         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 affidavit 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 officer, 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 “inferentially” 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, compelling 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 indicate 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 memory 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 compel. 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 passcode, 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 defendant to unlock the cell phone.
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         Defendant appealed the contempt judgment, raising, among other things,3 a challenge to the constitutionality 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, section 12, and the Fifth Amendment because the act of entering 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 violated the trial court’s order. The Court of Appeals rejected that argument without
discussion. Pittman, 

. 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 available.” State v. Crenshaw, 

, 

 (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 compliance, 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, 

. The court agreed with defendant that the act of entering 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.” 

.
The court then turned to the state’s argument that such testimony 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, 

, 

, 

 (1976), and United States v. Hubbell, 

,

, 

 (2000). Pittman, 

. 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. 

.
         Specifically, the court explained that “it is only the
testimonial aspect of the compelled act that must be a foregone conclusion, because it is only the testimonial aspect
of the compelled act that is protected under Article I, section 12.” 

. 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 “communicates … that defendant knows the passcode and,
by extension, has access to the device and its contents.”

 Therefore, the court explained, the court could compel
defendant to enter the passcode if the state established that
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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 authorized 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, 

,

 (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, 

, 

 (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, officers 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 constitutional quandary. The state has a “responsibility to prosecute crime,” even “in the novel and rapidly evolving context
of digital evidence.” 

. As a constitutional matter,
however, a person cannot be compelled to provide incriminating, testimonial evidence. Thus, this case presents two
questions of first impression: Did the court’s order compel 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 various tax laws. Fisher, 

. After being interviewed by the IRS, the taxpayers contacted their respective accountants to obtain certain tax documents that the
accountants had prepared for them. 

. After obtaining the documents, the taxpayers gave them to their attorneys who had been hired to represent them in their dispute
with the IRS. 

 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. 

 The attorneys did not
comply, and the IRS sought court orders compelling production of the documents. 

. 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 taxpayers from turning over the documents, then the attorneys who received the documents from the taxpayers should
also be excused from compliance with the courts’ orders.5

 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 explaining that the documents the IRS sought did not enjoy Fifth
Amendment protection. See 

 (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, 

. 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. 

.
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Fifth Amendment would not be violated by the fact alone
that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being
incriminated by his own compelled testimonial communications”). The documents may have contained incriminating,
testimonial evidence, but the taxpayers had not been compelled to create them. The Court explained that “the preparation of all of the papers sought in these cases was wholly
voluntary, and they cannot be said to contain compelled testimonial evidence, either of the taxpayers or of anyone else.”
Id. at 409-10. Therefore, the taxpayers could not “avoid compliance 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 someone 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 existence of the papers demanded and their possession or control 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, 

, 

, 

 (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, 

; 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, 

, 

, 

 (1984) (Doe I), the
Court confirmed that understanding of the Fifth Amendment, holding that voluntarily created documents, even voluntarily created documents in an individual’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 conclusion,” 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, 

, 

 (1988) (this
court considers state law questions before turning to federal 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 provides that “[n]o person shall be … compelled in any criminal 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 criminal prosecution.” State v. Fish, 

, 

(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.” 

. Although we discussed the tests
that the defendant performed as “acts,” and observed that
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statements protected by Article I, section 12, need not be
verbal, the aspects of the field sobriety tests that we concluded were “testimonial” in Fish involved verbal communications, such as counting, answering questions relating to
a person’s residence and date of birth, estimating a period
of time, and reciting the alphabet. 

 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 defendant 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 decoding 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 perform 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 testimonial 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 interwoven 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 recognizes, 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 purpose. 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, permitting the observation of the tattoo. Such an act is not implicated by Article I, section 12. See State v. Cram, 

, 

 (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 argument 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, 

, 

 (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 violated the defendant’s Article I, section 12, rights by failing
to give Miranda warnings and that both the statements that
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the defendant had made and the physical evidence derived
from those statements must be suppressed. Vondehn, 

. 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.’ ”

. 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.” 

.
Thus, defendant is correct that, for purposes of the exclusionary 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 compelled production of documents or chattels.” Vondehn, 

 (discussing Cram, 

). 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 authenticity, identity or origin of the blood; those facts were proved
by other witnesses.” Cram, 

. 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, 

. This court’s
prior cases do not support an argument that Article I, section 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, 

,

, 

 (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 foreign banks to disclose records of his accounts. 

. 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. 

. The federal government sought a court order compelling the petitioner to execute a consent directive authorizing
the Cayman banks to release petitioner’s account information. 

 The district court initially denied the government’s
request, but the Fifth Circuit reversed that decision. 

. On remand, the district court ordered the petitioner
to execute the consent directive, but he refused, and the
court held him in contempt. 

.
         The United States Supreme Court concluded that
the district court’s order requiring the petitioner to execute
the consent directive was lawful. 

. 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.” 

. The question, then,
was whether the act of executing the consent form directing the banks to release the records had “independent testimonial significance that [would] incriminate him,” and
whether the Fifth Amendment prohibits government compulsion of that act. 

. The Court noted that the “execution of the consent directive at issue in this case obviously
[was] compelled, and we may assume that its execution
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would have an incriminating effect.” Id. at 207. The issue
was whether executing the form was “testimonial communication.” 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 foreign 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 independent 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, 

). 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 combination 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 metaphor 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, 

 n 9 (internal quotations omitted). Applying that test, the majority
explained that it “simply disagree[d] with the dissent’s conclusion that the execution of the consent directive at issue
here forced petitioner to express the contents of his mind.”

 The majority concluded its footnote by stating that, “[i]n
our view, such compulsion is more like being forced to surrender a key to a strongbox containing incriminating documents than it is like being compelled to reveal the combination to petitioner’s wall safe.” 

 (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 combination, then the defendant provides testimonial evidence. But
when a defendant is required to do an act that is not similarly 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 defendant was under investigation for tax evasion and other
crimes relating to the Whitewater Development Corporation.
Hubbell, 

. During that investigation, the government served the defendant with a subpoena to appear
in front of a grand jury and produce requested documents.7

. The requested documents fell into 11 broadly
described categories. 

 To produce the requested documents, the defendant had to examine numerous documents,
and he ultimately produced 13,120 pages of material. 

. The Court concluded that, because the 11 different categories were described so broadly, the collection and production 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.” 

. The Court noted that, when assembling 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 investigation. The grand jury was investigating whether the defendant had violated his
first plea agreement. Hubbell, 

.
Cite as 

 (2021)                                       515

   “ ‘[i]t was unquestionably necessary for respondent to make
   extensive use of ‘the contents of his own mind’ in identifying 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.’ ”

 at 43 (quoting Curcio v. United States, 

,

, 

 (1957)).
         The Court explained that, whatever the scope of
the Fisher rationale, the case “plainly [fell] outside of it.”
Hubbell, 

. In Fisher, the government “already
knew that the documents were in the attorneys’ possession and could independently confirm their existence and
authenticity through the accountants who created them.”

. 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 documents ultimately produced.” 

. Because the defendant’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. 

        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 combination 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 unlocking 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 communication must itself, explicitly or implicitly, relate a factual
assertion or disclose information.” Doe II, 

.
516                                                         State v. Pittman

The Court applied that test in Hubbell: Because the subpoena 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 testimonial aspects. Hubbell, 

.
         We can, of course, adopt a different view in construing 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, 

, 

 (1966), for example, we
held that requiring a handwriting exemplar does not violate 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 stemming from what it “communicates” about a person’s “beliefs,
knowledge, or state of mind.” Fish, 

. 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 individual 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, 

 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 distinguish 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 

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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 defendant’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 communicate 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 subpoena.” Fisher, 

. In Hubbell, the defendant
was ordered to produce documents that fell within certain
broadly described categories. 

. Doing so would
communicate not only that the documents existed, but that
they fell into the described categories. 

. In Doe II,
the defendant was ordered to sign bank consent forms. 

. Doing so, the Court held, would not communicate
facts of any sort. 

.
        Here, defendant was ordered to unlock the phone
using a passcode. Thus, as the state acknowledges, defendant’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 compliance 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 performing 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 defendant 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 incriminating 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 communicate: 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 reasoning. We disagree. In the case on which the state relies, State v. Janscek, 

, 

 (1986), this court focused, as the United States Supreme
Cite as 

 (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 defendant 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, 

(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 electronic 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 individual’s right to privacy in the contents of items that are subject 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 defendant’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 defendant 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.” 

. 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 therefore 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, 

, 

 (en banc), aff’d and opinion adopted,

, 

 (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. 

. The trial court granted the defendants derivative-use
immunity and ordered them to testify. 

 Derivative-use
immunity typically precludes the state from using the compelled statements of a witness and the evidence derived
from those statements in the prosecution of that witness.

 at 644 n 3. The state argued that derivative-use immunity was a sufficient substitute for the defendants’ constitutional rights against self-incrimination. 

. 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, 

, 

, 

 (1972) (quoting Murphy v. Waterfront
Comm’n, 

, 

, 

 (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 immunity. Soriano, 

. Transactional immunity precludes 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 

 (2021)                                 521

relating to the compelled statements. 

 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. 

(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, 

. 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, 

 (internal quotation 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.” 

(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. 

.

         Thus, under Soriano, the state is generally prohibited from compelling a defendant’s incriminating statements
without providing transactional immunity. 

. And,
as we have concluded above, compelled testimonial conduct
is generally subject to the same Article I, section 12, protections as are compelled statements. Consequently, as a general rule, the state is prohibited from compelling a defendant to perform an act that provides testimonial evidence
without providing transactional immunity. The state contends 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 evidence 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 performance 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 significance is limited. And, because the act of unlocking a cell
phone provides incriminating testimonial evidence, requiring 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, 

, 

(1979) (Linde, J., concurring). Those “are questions which,
as far as the powers of the state and local officers are concerned, are left to state law.” 

        As presented, however, the question before us is
one of outer constitutional limits, and we must undertake
Cite as 

 (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, 

(holding that Article I, section 12, requires substitute that
protects defendant to “ ‘same extent in scope and effect’ ”
(quoting Counselman v. Hitchcock, 

, 

, 

 (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, investigation, 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 transactional 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, 

, 

 (1995) (acknowledging that judicial estoppel has no
“single, uniform formulation,” but at the very least, it “preclude[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 appropriate; however, principles of judicial estoppel do not provide 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 defendant 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 defendant 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, 

 (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 defendant 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 

 (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 matter 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,

, 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 appropriately limited search of a cell phone without compelling a
defendant’s assistance to unlock it. See State v. Brown, 

, 278 n 6, 

 (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 federal constitutions can be fulfilled virtually without exception.”); State v. Kurokawa-Lasciak, 

, 

 (2011) (noting that the majority in Brown had suggested that its decision was “a temporary accommodation
subject to change in the near future when technology would
permit neutral magistrates to” issue warrants “more expeditiously”). 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 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 defendant’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, 

, 

 (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 constitutional, 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 communicate 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 communicate 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) (explaining 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 testimonial 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 

 (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 passcode. 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 testimonial value and constitutional protection may be overcome if the passcodes’ existence, possession, and authentication are foregone conclusions.”); State v. Johnson, 

 (Mo Ct App 2019), cert den, ___ US ___, 

, 

 (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, 

, cert den, ___ US ___,

, 

 (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,

 (Ill App 2019) (rejecting state’s argument that it must show only that defendant knew the passcode 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, 

 (11th Cir 2012) (government 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, 

 (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 concerns that are echoed by defendant and her amici.14 Those
concerns are legitimate. The breadth of personal information maintained on cell phones is far beyond that typically
inscribed in a diary or day planner. In Oregon, those concerns 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, 

, 

 (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 officers 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, 

 (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 criminal 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.”

. Consequently, this court has devised a rule that

     14
        For instance, the Indiana Supreme Court noted in Eunjoo Seo v. State, 

, 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 workability 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 

 (2021)                                  529

addresses that potential: When the state uncovers information 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 warrant requirement. Id. at 221.
         To the extent that defendant asserts that the privacy 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 testimonial 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 sufficient 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 passcode 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 probable 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, 

, 

 (2009). There is a difference, therefore,
between determining whether an officer’s belief that defendant knows the passcode to the phone is objectively reasonable 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 probable 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 factfinder, was persuaded by the state’s evidence. Consequently,
the court’s order did not meet constitutional muster; defendant’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 sufficient 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., 

, 

 (1987). Under
the “clear and convincing evidence” standard, the proponent
must establish that the facts asserted are “highly probable.”
Cite as 

 (2021)                                  531

 And, to prove facts “beyond a reasonable doubt,” the proponent must establish that the facts asserted are “almost
certainly true.” Id.; see also State v. Williams, 

, 

 (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, 

 (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” standard. United States v. Spencer, 

 (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, 

 (concluding that state constitution
requires the state “to prove that a defendant knows the
password to decrypt an electronic device beyond a reasonable 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] factual conclusions.” 

 (internal quotation omitted; first alteration in original). The court explained that “some critical
facts implicating a defendant’s constitutional rights require
proof beyond a reasonable doubt”; for example, the standard under the Massachusetts Constitution for proving the
532                                                       State v. Pittman

voluntariness of a confession is beyond a reasonable doubt.
Id. at 551, 

. 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 defendants 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,

 (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, 

, 

 (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 defendant’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 confession in fact was voluntary. See State v. Morris, 

, 

 (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 circumstances 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 acting as factfinder when determining the admissibility of the evidence. See Stevens,

 (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 determination. We emphasize that that issue is distinct from the issue of what standard of
review should apply on appeal. See State v. Ward, 

, 

 (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 

 (2021)                                 533

court in these circumstances is not tasked with determining, 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 vigilance. 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, 

 (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 recognize 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 certain 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.