September 21, 2020

Volume X, Number 265

September 18, 2020

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Defendant’s Refusal To Unlock Smartphone Upheld By Indiana Supreme Court


Smartphones have become a major gateway to electronic personal information. Information contained or accessed by a smartphone is testimonial in nature. Absent certain narrow exceptions, unlocking a smartphone is protected as a Fifth Amendment right. 

The Indiana Supreme Court has ruled on whether a suspect in an ongoing investigation can be compelled to unlock their smartphone to aid authorities in their investigation. In a 3-2 decision released June 23, the court held that an individual’s decision to not voluntarily unlock their smartphone is protected by the U.S. Constitution’s Fifth Amendment.

This case only interprets the law in Indiana and is only controlling on courts in Indiana. However, the depth of the analysis into the federal case law on the Fifth Amendment will likely mean that this case gets cited in other jurisdictions that will have to grapple with this same issue in their own cases. 

The defendant in the case, Katelin Seo, was being investigated by local authorities for stalking and harassment. The investigating police officers believed that Seo was using multiple texting and VoIP applications on her smartphone to conceal her identity while texting an individual identified as “D.S.” by the court. 

In furtherance of their investigation, the police detectives sought and obtained two search warrants. The first permitted a forensic download of the contents of her smartphone. The second warrant compelled her to unlock the phone for purposes of allowing investigators access. Seo refused to unlock the phone and was held in contempt by the trial court.

In reaching its decision, the court relied upon the Fifth Amendment provision that protects a person from “being compelled to be a witness against himself” and which had been further elaborated upon by the U.S. Supreme Court in Estelle v. Smith, 451 U.S. 454, 462 (1981), which found a fundamental principle of this protection to be that “the State produce evidence against an individual through the independent labor of its officers, not by the simple, cruel expedient of forcing from his own lips.” 

Despite some narrow exceptions that have been articulated in cases over the years, the Indiana Supreme Court found that compelling Seo to unlock a smartphone was tantamount to requiring her to “assist in the prosecution of her own criminal case.”

The majority opinion concludes that the compelled production of an unlocked smartphone is “testimonial” in nature and as a result is covered by the protections of the Fifth Amendment, unless the state can effectively demonstrate the application of a narrow exception known as the “foregone conclusion” exception. 

The “foregone conclusion” exception was articulated in Fisher v. United States, 425 U.S. 391, 410 (1976). For an act to fit within this exception, the state must demonstrate that it already knows the information being sought from the defendant, and as a result, its ultimate discovery is a “foregone conclusion.” Because the state in Fisher made no such showing in this case, the court found that the exception did not apply and it reversed the contempt case.

The use of smartphones as an essential communication device and also as a gateway to individually maintained data and other personal information creates an interesting dilemma on just how private and just how protected our interests are in those devices. This will be an issue in other cases in the future, and this thorough review of Fifth Amendment application to electronic devices will likely be at the forefront of future case analysis.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 178


About this Author

Ronnie Miller, Barnes Thornburg, Indianapolis and Washington DC, Labor and Employment Litigation Law Attorney
Of Counsel

Ronnie L. Miller is of counsel in the Washington, D.C., and Indianapolis offices of Barnes & Thornburg. A member of the firm’s Government Services and Finance Department, Mr. Miller serves as federal compliance counsel for government services and is also involved with professional responsibility and various legal ethics and conflict matters. He is involved in political law issues and advises clients on election and campaign laws, political action committees, and lobbying activities. Additionally, Mr. Miller is also a member of the Litigation and Labor and Employment...

Adeyemi Adenrele White Collar Litigator

Adey O. Adenrele is an associate in Barnes & Thornburg's Washington D.C., office and a member of the firm's Litigation Department and the White Collar and Investigations Practice Group. He concentrates his practice on white collar defense, internal investigations, corporate compliance and ethics, antitrust matters, and complex civil litigation. Adey also litigates general commercial and product liability cases.


Adey represents clients in investigations by several government agencies, including the U.S. Department of Justice (DOJ), the Securities and Exchange Commission, the Food and Drug Administration, and various Inspectors General. These investigations are primarily related to the Foreign Corrupt Practices Act, the False Claims Act, various fraud and bribery statutes, and antitrust matters. He also has experience conducting internal investigations involving healthcare institutions and government contractors.

In his compliance practice, Adey has experience working on DOJ-appointed monitorship teams. The scope of work for these teams includes the review, assessment, and evaluation of internal controls, record keeping, financial reporting policies, and employee training within the healthcare sector. Adey further assists companies comply with ethics issues related to their federal, state, and local government contracts.

In his civil litigation work, Adey represents manufacturers in complex products liability litigation and personal injury lawsuits. He has litigated these matters from initiation to conclusion, both as a member of a larger team and independently.

He also continues to represent pro bono clients in state and federal court. His focus in his pro bono work has been with refugees seeking asylum in the United States and tenants in housing disputes.

Before joining the firm, Adey served as an education volunteer with the U.S. Peace Corps in Cape Verde, Africa. In this role, he acted as project proposal writer, created a seminar for disenfranchised youth on empowerment, helped to construct a local village library, and taught high school English.