Privacy and Smartphones Part 2

Privacy and Smartphones Part 2

The Indiana Supreme Court has recently decided to rule on a case concerning smartphones and the right against self-incrimination.  The State’s petition to transfer was granted on December 6, 2018. 

Back in September of this year, Keffer Hirschauer Partner Bradley Keffer was asked to comment on the lengthy Court of Appeals’ decision in that case known as Seo v. State,109 N.E.2d 418 (Ind. Ct. App. 2018).  Mr. Keffer noted that the decision was significant and dove into the application of the Fifth Amendment to smart phones.

In the Seo case, the defendant contacted a sheriff’s department asserting that she was a victim of a crime.  As a part of that investigation, the defendant allowed law enforcement to view her Iphone.  Officers did a forensic download.  Based on that investigation, officers decided not to pursue charges against the defendant was reporting, but pursued a criminal investigation against Seo based on information learned from her phone.   The State charged the defendant with stalking, intimidation, theft, and harassment.  Under a separate cause, the State also charged the defendant with thirteen counts of invasion of privacy as a class A misdemeanor.  The State sought a warrant and order compelling the defendant to unlock her phone and allow access to law enforcement.  The trial court ordered the defendant to unlock her phone finding that the act of unlocking the phone does not rise to the level of self-incrimination protected by the federal constitution under the Fifth Amendment or Article 1, Section 4 of the Indiana Constitution. 

On appeal, Judge Mathias acknowledged that while technology moves faster than the law, often much faster, the principles embodied in the Bill of Rights are timeless.  He concluded in his decision, which Judge Riley concurred in result, that compelling an individual to unlock her Iphone under the threat of contempt and imprisonment by the trial court is prohibited under the federal constitution.  That is, under those facts, the defendant should not be compelled to provide access to her cell phone for use by police and law enforcement.   

In a lengthy dissenting opinion, Judge May came to a different conclusion.  She asserted that the Fifth Amendment is intended to prohibit the government from compelling incriminating testimony, not to protect private information on a smartphone.  Judge May explained that the only testimony being implied by the act of unlocking a decrypted phone is that the device is hers and she has the ability to unlock it.  As such, in Judge May’s view, the defendant can be compelled by a court to unlock the phone. 

Now, the Indiana Supreme Court will weigh in on the important discussion in Indiana concerning the intersection of technology, specifically cell phone technology, and constitutional rights.  The decision will no doubt impact many Hoosiers. As Judge Mathias noted, “Smartphones are ubiquitous in modern life.”  Seo v. State, 109 N.E.2d 418, 419 (Ind. Ct. App. 2018).  To be sure, with sixty eight pages of facts and analysis provided to the Supreme Court by multiple judges from the lower appellate court, the high court will have much to consider. 

The case has been fully briefed by both the State and the defendant.   Nonetheless, the Court has taken the rare step of inviting Amicus Curiae briefing on this important issue.  The case has been set for oral argument on April 18, 2019, in Wabash, Indiana.  A written decision will follow after that discussion. 

If you are facing criminal charges or would like to appeal a conviction, contact the attorneys at Keffer Hirschauer LLP today. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized history. Act now and contact us today at 1-800-NOT-GUILTY or (317) 857-0160.


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