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Criminal defendants can be forced to unlock their encrypted cell phones using a search warrant, the Oregon Supreme Court ruled.

PMG PHOTO: ZANE SPARLING - The lock screen of an Apple iPhone is shown here. Authorities can legally order criminal defendants to swipe the pattern or punch in the passcode needed to unlock their cell phone, the Oregon Supreme Court has ruled.

In an unanimous opinion written by Chief Justice Martha L. Walters, Oregon's top court found that police may only order a phone unlocked after receiving a search warrant and proving, beyond a reasonable doubt, that they already know what will be found inside the digital trove.

"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," according to the 37-page opinion published Jan. 28.

The ruling in question centers on the case of Catrice Cherelle Pittman, a 32-year-old Portland woman who was arrested in Marion County after she crashed her car, injuring several passengers, while allegedly intoxicated on June 4, 2016. Hospital staff allegedly found a large amount of cash, methamphetamine and small plastic baggies on her person, leading Salem police officers to seek access to her Apple iPhone in order to prove drug dealing charges against her.

The trial court ordered Pittman to unlock the phone, but she twice entered the wrong passcode — 123456 — and subsequently was sentenced to 30 days in jail for contempt of court.

Lawyers for Pittman argued the order violated the Oregon Constitution and the Fifth Amendment, which protects people from being forced to incriminate themselves. The argument was buoyed by a number of prominent supporters, including the American Civil Liberties Union and the Electronic Frontier Foundation.

"Encryption may impose obstacles to law enforcement in particular cases. So do window shades. It is sometimes true that constitutional protections interfere with law enforcement investigations," the organizations wrote in a friend of the court brief. "Constitutional protections must be maintained, if not strengthened, in the digital age."

But the Supreme Court noted in its ruling that certain incriminating actions, such as revealing a distinctive tattoo or trying on a piece of clothing, already can be ordered by a judge. Justice Walters determined that in all future cases the act of unlocking cannot be used against the defendant, though the contents of the phone can.

PHOTO - Catrice PittmanAlso at play was the legal principle known as a "foregone conclusion" — in essence, whether the cops already had proven they knew the cellphone was Pittman's because it had been found in her purse. She had never admitted as such at the time of the trial.

The Oregon Supreme Court determined that, in Pittman's case, the lower court had not done the necessary fact finding to prove that Pittman owned the phone; consequently, the high court has reversed the holding of contempt.

The drug charges were dropped from Pittman's case during the trial, but she was convicted of second- and third-degree assault. She remains behind bars at Coffee Creek prison at this time.


Zane Sparling
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