Justice Solomon continued in relevant part: Here, the State correctly asserts that the lawfully issued search warrants — the sufficiency of which Andrews does not challenge — give it the right to the cellphones’ purportedly incriminating contents as specified in the trial court’s order. And neither those contents — which are voluntary, not compelled, communications — nor the phones themselves — which are physical objects, not testimonial communications — are protected by the privilege against self-incrimination. Therefore, production of the cellphones and their contents is not barred. But access to the cellphones’ contents depends here upon entry of their passcodes. Communicating or entering a passcode requires facts contained within the holder’s mind. It is a testimonial act of production.
The inquiry does not end there, however, because, if the foregone conclusion exception applies, production of the passcodes may still be compelled. To determine the exception’s applicability, the Court first considers to what it might apply — the act of producing the passcodes, or the act of producing the cellphones’ contents through the passcodes. The relevant Supreme Court cases explicitly predicate the applicability of the foregone conclusion doctrine on the fundamental distinction between the act of production and the documents to be produced. The documents may be entitled to no Fifth Amendment protection at all — and, indeed, they were not so entitled in Fisher — but the act of producing them may nevertheless be protected.
In light of the stark distinction the Court has drawn between the evidentiary object and its production — a division reinforced even in those cases where the foregone conclusion exception was held not to apply — it is problematic to meld the production of passcodes with the act of producing the contents of the phones, an approach that imports Fourth Amendment privacy principles into a Fifth Amendment inquiry. The compelled act of production in this case is that of producing the passcodes. Although that act of production is testimonial, passcodes are a series of characters without independent evidentiary significance and are therefore of minimal testimonial value — their value is limited to communicating the knowledge of the passcodes. Thus, although 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.
An interesting point that the State could make concerns fundamental fairness. The execution of a valid search warrant should not turn on the cell phone manufacturer. That argument applies here since iPhones are far more difficult for law enforcement to access then phones with an android operating system.
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