Prosecution: Make Seim unlock phone

EPHRATA — The prosecutor handling Gavin Seim’s obstruction/harassment case has filed a motion requesting a judge make Seim unlock his password-protected cellphone, which was seized during his arrest.

Seim was arrested Aug. 17 following a run-in with EPD Officer Patrick Canady at the Ephrata Walmart. Seim was subsequently charged with harassment and obstruction of a law enforcement officer in Grant County District Court.

Seim allegedly contacted Canady as the officer was on a traffic stop in the Walmart parking lot. Canady says he felt threatened by Seim’s presence and overall demeanor during the altercation. As a result, Seim was taken into custody and his cellphone was seized as evidence, as Seim was recording his encounter with Canady. The prosecution has been unable to open the phone, as the device is password-protected. The phone was sent to a company that has ways to bypass the security code, but there is still a possibility the phone cannot be cracked without Seim punching in the password himself.

In a Oct. 13 hearing the state was ordered to return the phone to Seim, who says he will be representing himself, in 21 days, even if they are unable to open it. Deputy Prosecutor Marc Fedorak submitted a motion on Oct. 25 in which he requested the court order Seim to unlock the phone. Fedorak said the state will agree to an in-camera review of the contents of Seim’s phone to see if the evidence they are looking for is “discoverable.”

The main issue of Fedorak’s motion is whether or not ordering Seim to unlock his phone would violate the Fifth Amendment, which states that a person cannot be compelled to testify or be a witness against himself/herself.

In his motion Fedorak admits both the Federal and Washington constitutions limit what evidence a court can compel a defendant to produce, but the issue is if those rights apply when the defendant is asked to unlock a cellphone.

“When production of evidence does concede the existence, custody, and authenticity of that evidence, the Fifth Amendment privilege against self-incrimination applies because that production constitute(s) compelled testimony. However, the ‘foregone conclusion’ doctrine is an exception,” Fedorak wrote. “Under this doctrine, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production, such as the existence, custody, and authenticity of evidence, is a ‘foregone conclusion’ that adds little or nothing to the sum total of the state’s information.”

The U.S. Supreme Court has not ruled on using the “foregone conclusion” doctrine when it comes to password-protected cellphones. Other jurisdictions have produced theories for using the foregone conclusion doctrine. In one of the theories the state must show that the pass code exists, the pass code is “within” the defendant’s possession of control and the pass code is authentic.

“An alternative application examines whether there has been an additional showing as to knowledge with reasonable particularity 1.) of the existence of evidence on the phone, 2.) the evidence is within the possession of the defendant, and 3.) the evidence is authentic.”

In applying the theories to Seim’s case, Fedorak says the state knows the password exists and Seim can unlock it, as Canady claims Seim was using the device to record the traffic stop and police reports indicate Seim instructed another EPD officer on how to use the device.

In addition, he argues the state knows the evidence exists on the phone because the “facts are clear” Seim was video recording his encounter with Canady on his cellphone and since the phone was seized, there has not been an opportunity for evidence to be planted or altered on the phone.

“Compelling the defendant in this case to unlock his cellphone would provide little more information than that (is) already known to the state. The state has already secured a search warrant to search for the video recording that was created by Mr. Seim with the lawfully seized iPhone 7,” argued Fedorak. “Such a requirement on Mr. Seim would not offend the Fifth Amendment any more than requiring a defendant to provide fingerprints, a DNA sample, or wear particular clothing. Courts have held a defendant may be required to perform those acts.”

Fedorak also filed a motion seeking extra time to return Seim’s phone, as he believes the motion to compel Seim to unlock the phone will not be able to be heard until after the 21-day mark that was set Oct. 13 for the state to return the device.

Richard Byrd can be reached via email at city@columbiabasinherald.com.