Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 16 ACC 0121
Honorable Gregory R. Ginex, Judge, presiding.
PRESIDING JUSTICE PIERCE delivered the judgment of the court,
with opinion. Justices Harris and Simon concurred in the
judgment and opinion.
PIERCE, PRESIDING JUSTICE.
1 Defendant Ashlee Johnson appeals from the trial court's
October 26, 2016, order finding her in direct civil contempt
of court when, in defiance of a court order, she did not
unlock her cellular phone. On appeal, defendant contends that
the trial court abused its discretion by finding her in
contempt because her failure to follow the court's order
to unlock her phone was not a willful act of defiance, but
rather the result of her inability to remember her passcode.
2 Defendant was arrested on February 5, 2016, and charged by
indictment with two counts of distribution of harmful
material (distribution) and two counts of grooming. In the
indictment, the State alleged that defendant, being over the
age of 18, committed the offense of distribution when she
knowingly exhibited digital images of her sex organ to Z.O.
and M.O., both minors, by utilizing her cellular telephone.
3 After defendant's arrest, police executed a search
warrant on, inter alia, defendant's car and
devices, including cellular phones. In defendant's car,
police recovered a cellular phone matching the victims'
description of the phone that defendant had used to show them
sexually explicit images. Defendant's cellular phone is
passcode protected and, therefore, inaccessible to the State.
4 On June 21, 2016, the State filed a motion to compel
defendant either to provide the State with her cellular
phone's passcode or to manually unlock her phone in the
presence of the State without disclosing her passcode. In a
memorandum in support of the motion, the State alleged that,
between the months of September and December 2015, defendant
babysat two minors, 12-year-old Z.O. and 10-year-old M.O.,
who spent their weekends at defendant's house. The minors
were the adopted children of defendant's relative. On one
occasion, defendant showed the minors, on her cellular phone,
a photo of a naked adult male holding his penis. Defendant
told the minors that the man in the photo was her boyfriend.
Some time later, defendant showed the minors another picture
on her phone, which depicted defendant's vagina being
manipulated by a person's hand. Defendant told the minors
that she was sending this photo to her boyfriend. The minors
both described defendant's cellular phone as being in a
pink case with white gems on the back.
5 Defendant filed a written response to the State's
motion, arguing that it would be a violation of her fifth
amendment rights for the court to compel her to provide her
6 On September 20, 2016, the court heard arguments on the
State's motion. The State argued that it was entitled to
the images on the phone that were shown to the victims
pursuant to Illinois Supreme Court Rule 413. Ill. S.Ct. R.
413(e) (eff. July 1, 1982) ("Upon a showing of
materiality, and if the request is reasonable, the court in
its discretion may require disclosure to the State of
relevant material and information not covered by this
rule."). The State also argued that providing the
passcode, or unlocking the phone for detectives in open
court, would be a physical act and, therefore, would not
implicate defendant's fifth amendment rights. Finally,
the State argued that, even if the court found that providing
the passcode was testimonial in nature, the State was
entitled to the passcode because the existence and location
of the images on the cellular phone falls into the
"foregone conclusion" exception to the fifth
amendment's protections. See Fisher v. United
States, 425 U.S. 391, 411 (1976).
7 Defendant replied that, essentially, the State was asking
her to testify against herself by providing the passcode
because it was asking for the contents of her mind. During
the argument, defense counsel stated that, hypothetically,
"the State does not know if [defendant] has the ability
to enter [the phone's] passcode." When the court
questioned counsel's assertion, he responded, "Even
if the Court believes [the State] probably knows that
[defendant] could enter [the passcode], that doesn't mean
she remembers it. She's been in jail for six
8 The court granted the State's motion to compel
defendant to unlock her cellular phone. In announcing its
decision, the court noted that it did not believe that
defendant no longer remembered her passcode. Defense counsel
subsequently filed a motion to reconsider the trial
court's ruling. The court denied defendant's motion.
9 On October 26, 2016, the court directed defendant to unlock
her cellular phone in open court. Defendant responded,
"In the name of Jesus, I do not have that
passcode." When the court expressed confusion with
defendant's statement, defense counsel responded that
"[s]he has indicated that she does not remember her
passcode." The court clarified that defendant said that
she does not "have" the passcode and not that she
was unable to remember the passcode. Defense counsel again
stated, "Well, she doesn't remember it. She has been
in jail for almost ten months." The court made it
"clear" to defendant that it was ordering her to
unlock the phone. Defendant responded, "I do not have
the passcode because I do not remember the passcode."
The court stated that it did not believe that defendant could
not remember the passcode and held her in direct civil
contempt. The court notified defendant that she could purge
the contempt at any time by complying with the court's
order to unlock the phone. When defendant again claimed she
could not comply because she does not remember the passcode,
the court stated: "The bottom line is it is your
passcode. You know it, and I don't believe for a second
that you don't."
10 On the same date, the court entered a written order,
holding defendant in direct civil contempt. In the order, the
court found that defendant "willfully and contemptuously
refused to open her cell phone *** even though she was
physically able to do so." The court found that
defendant's refusal to unlock her phone "has
impaired and obstructed the court in its administration of
justice." Defendant was sentenced to six months'
imprisonment, without day-for-day credit, in the Cook County
Department of Corrections. The court order noted that
defendant could purge her contempt by complying with the
order to unlock her cellular phone. Defendant filed a timely
notice of appeal.
11 On appeal, defendant contends that her failure to comply
with the court's order was not contemptuous because she
did not refuse to comply with the court's order; rather,
it was impossible for her to comply as she no longer
remembered her passcode. Defendant further contends that,
because she can no longer remember her ...