People v. Sneed

230 N.E.3d 97

2023 IL 127968

The PEOPLE of the State of Illinois, Appellee, v. Keiron K. SNEED, Appellant.

The PEOPLE of the State of Illinois, Appellee,

v.Keiron K. SNEED, Appellant.

(Docket No. 127968)

Supreme Court of Illinois.

Filed June 15, 2023

James E. Chadd, State Appellate Defender, Catherine K, Hart, Deputy Defender, and Joshua Scanlon, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor, Notz, Solicitor General, and Katherine M. Doersch and Joshua M. Schneider, Assistant Attorneys General, of Chicago, of counsel), for the People.

Rebecca K. Glenberg and Alexandra Block, of Roger Baldwin Foundation of ACLU, Inc., William Wolf and William, Loeffel, of Illinois Association of Criminal Defense Lawyers, and Jonathan M. Brayman, of Breen & Pugh, all of Chicago, Brett Max Kaufman, of American Civil Liberties Union Foundation, of New York, New York, Jennifer Stisa Granick, of American Civil Liberties Union Foundation, and Andrew Crocker, of Electronic Frontier Foundation, both of San Francisco, California, for amici curiae American Civil Liberties Union et al.

Theodore E, Rokita, Attorney General, of Indianapolis, Indiana (Thomas M. Fisher, Solicitor General, and Patricia Orloff Erdmann, Assistant Attorney General, of counsel), for amici curiae State of Indiana et al.

OPINION

JUSTICE OVERSTREET delivered the judgment of the court, with opinion.

¶ 1 Defendant, Keiron K. Sneed, was charged in the circuit court of De Witt County with two counts of forgery (720 ILCS 5/17-3(a)(1) (West 2020)). The charges stemmed from the discovery of two false paychecks that were payable to defendant, endorsed by him, and cashed and/or deposited via mobile deposit. Police procured a search warrant for defendant’s cell phone but were unable to execute the warrant because the cell phone was passcode protected and defendant refused to provide the passcode. Accordingly, the State filed a motion to compel production of the cell phone’s passcode.

¶ 2 The circuit court found the fifth amendment privilege against self-incrimination prevented the State from compelling defendant to provide the passcode, as doing so would constitute compelling incriminating testimonial communication. See U.S. Const., amend. V. The circuit court further concluded that the foregone conclusion doctrine did not apply as an exception to bypass the fifth amendment privilege. Therefore, the circuit court denied the State’s motion to compel production.¹ The State filed a certificate of substantial impairment, and the matter proceeded to the appellate court.

¶ 3 After determining that it had jurisdiction over the appeal pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2017) (2021 IL App (4th) 210180, ¶ 30, 453 Ill.Dec. 348, 187 N.E.3d 801), the appellate court concluded that the act of producing a cell phone’s passcode is not an incriminating, testimonial communication under the fifth amendment and is therefore not privileged, (id. ¶ 63). It further concluded that the foregone conclusion doctrine applied,² rendering the act of producing the passcode outside the scope of fifth amendment protection. Id. ¶ 102. The appellate court reversed the circuit court’s order and remanded for further proceedings. Id. ¶ 108. We now affirm the judgment of the appellate court, albeit on different grounds.

¶ 4 I. BACKGROUND

¶ 5 On February 8, 2021, defendant was charged by information with two counts of forgery (720 ILCS 5/17-3(a)(1) (West 2020)). The information alleged that defendant created two false paychecks from Dairy Queen with the intent to defraud Daily Queen and financial institutions. Defendant and his wife, Allora Spurling Sneed (Spurling), were both arrested in connection with the false paychecks. Upon their arrest, officers seized two cell phones—one from defendant and one from Spurling.

¶ 6 A. Search Warrant

¶ 7 On March 1, 2021, Detective Todd Ummel of the Clinton Police Department applied for a search warrant to search the content of both phones. The complaint for search warrant provided as follows. On January 5, 2021, Sara Schlesinger—a bookkeeper for Dairy Queen in Clinton, Illinois—reported that she discovered a paycheck in the amount of $274.33, payable to defendant. Spurling was an employee of Dairy Queen at the time, but defendant was not. The paycheck had been cashed via Citibank mobile deposit. Schlesinger provided. text messages between herself and Spurling, in which Spurling acknowledged a forged paycheck but claimed that "it wasn’t meant to happen for real. It [sic] was being curious and he didn’t think it would actually work cuz [sic] it wasn’t real. *** But please know I had no clue about it[.]" Schlesinger confirmed that funds in the amount of the paycheck were deducted from Daily Queen’s account at State Bank of Lincoln.

¶ 8 The complaint for search warrant further provided that Ummel attempted to interview Spurling, who agreed to meet him on January 7, 2021. However, Spurling did not attend the meeting, claiming she had been exposed to COVID-19. The meeting was rescheduled, but Spurling did not attend, and additional attempts to contact her were unsuccessful.

¶ 9 On February 8, 2021, Schlesinger provided police an additional forged pay-check payable to defendant in the amount of $423.22, which was also deducted from Daily Queen’s account via mobile deposit. According to the endorsement on the back of the check, the amount was to be deposited to Varo Bank.

¶ 10 Ummel’s complaint for search warrant sought the following:

"Any and all evidence related to the forging and transmission of paychecks drawn upon the State Bank of Lincoln from the account of Dairy Queen ***, as well as any other forged checks to include:

Photographs and records of paychecks from Daily Queen

Records of messages sent from the phones of [defendant] and [Spurling] pertaining to the. forged paychecks from text messaging applications or other messaging applications such as Facebook, WhatsApp, etc.

Confirmations of deposits from [Citibank], Varo Bank, and any other banks

Emails, messages, and application notifications pertaining to the deposit of checks."

¶ 11 On March 1, 2021, the circuit court issued a search warrant granting officers permission to search both phones.³

¶ 12 B. State’s Motion to Compel

¶ 13 On March 5, 2021, the State filed a motion to compel production of the passcode to defendant’s cell phone. The motion alleged that officers were unable to execute the search warrant because defendant’s phone was passcode protected. As such, the State requested the circuit court to compel defendant to either provide the passcode or to enter the passcode into his phone. On March 23, 2021, the circuit court conducted a hearing on the motion to compel. At the hearing, Detective Ummel testified that Schlesinger contacted the Clinton Police Department on January 5, 2021, reporting that defendant had cashed fraudulent checks on Daily Queen’s account via mobile deposit from a cell phone. Ummel explained that a mobile deposit consists of photographing a check and submitting it electronically to a financial institution for deposit.

¶ 14 Ummel indicated that he had reviewed photographs of the checks, both of which were payable to and endorsed by defendant.⁴ Ummel testified that Spurling admitted via text message that defendant cashed the checks but "[i]t was only a joke, she said," because defendant did not believe the counterfeit checks would successfully deposit. Ummel confirmed that defendant was not a Daily Queen employee but that Spurling had been and was terminated after the subject events transpired. Ummel indicated that Dairy Queen’s bank statements reflected that funds in the amounts of the checks had been deducted from Daily Queen’s account.

¶ 15 Ummel believed defendant’s phone contained a photograph of the checks, and he was "hoping to find" such a photograph. Ummel further sought additional files pertaining to the mobile deposits. He conceded, however, that he did not know for certain that any such files existed and that there was currently nothing connecting defendant to the transactions besides Spurling’s statements. Ummel added that he had not’ attempted to subpoena records from defendant’s cell phone carrier to obtain copies of text messages.

¶ 16 Ummel testified that officers were unable to execute the search warrant because defendant’s phone was passcode protected and defendant refused to provide the passcode. Ummel explained that he was exercising caution, as he knew that too many failed attempts to open a cell phone with the incorrect passcode will permanently lock the phone. Ummel indicated that the Clinton Police Department did not have "cell phone cracking" technology and that Illinois State Police would not assist in doing so unless the case involved narcotics. Ummel testified that defendant completed a bond form after his arrest and provided a phone number that matched the seized phone.

¶ 17 C. Circuit Court’s Judgment

¶ 18 The circuit court observed that the fifth amendment applies when the accused is compelled to make an incriminating, testimonial communication. See Hiibel v. District Court of Nevada, 542 U.S. 177, 189, 124 S.Ct.2451, 159 L.Ed.2d 292 (2004). It further observed that an act of production is testimonial for fifth amendment purposes when the accused is compelled to make extensive use of his own mind to communicate a statement of fact. See United States v. Hubbell, 530 U.S. 27, 43, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). The circuit court stressed that the testimonial nature of compelling the production of the passcode was diminished in this case because the phone was found on defendant’s person and the bond sheet reflected that defendant identified the phone number associated with the phone as his phone number. The circuit court indicated that, under these facts, defendant’s knowledge of the passcode did not provide any...