The background was as follows. “A grand jury returned indictments charging the defendant … with trafficking a person [Sara] for sexual servitude … and deriving support from the earnings of a prostitute…. At the time of his arrest, the Commonwealth seized [an LG brand] cell phone from the defendant. During its investigation of the defendant, the Commonwealth [received] information leading it to believe that the contents of the cell phone included material and inculpatory evidence.” Specifically, (1) Sara told the police that she regularly communicated with the defendant by contacting the LG phone; and (2) one month prior to his arrest, the defendant made a “statement to police [in connection with a different matter] characterizing the LG phone’s telephone number as his telephone number.” The Commonwealth procured a warrant to search the cell phone. The search warrant [could not] be executed, however, as the Commonwealth was … unable to [gain access to] the cell phone’s contents because they [were] encrypted. The contents [could] only be decrypted with the entry of a password.” The Commonwealth filed a motion to compel the defendant to decrypt the cell phone by entering the password into the device. “The central legal issue [in the motion] concerned whether compelling the defendant to enter the password [into] the cell phone would violate his privilege against self-incrimination guaranteed by both the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The Commonwealth argued that under [the SJC’s] decision in Commonwealth v. Gelfgatt, 468 Mass. 512 (2014), the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a ‘foregone conclusion’…. [The] judge denied the Commonwealth’s motion, concluding that the Commonwealth had not proved that the defendant’s knowledge of the password was a foregone conclusion…. Several months later, the Commonwealth renewed its motion and included additional factual information that it had not set forth in its initial motion. The judge denied the renewed motion.” The Commonwealth then filed a petition for relief pursuant to G.L. c.211, §3, which the single justice reserved and reported to the full SJC. “The single justice asked the parties to address three specific issues,” two of which were “What is the burden of proof that the Commonwealth bears on a motion like this in order to establish a ‘foregone conclusion,’ as that term is used in Commonwealth v. Gelfgatt?” and “Did the Commonwealth meet its burden of proof in this case?”
In response to the single justice’s first question, the SJC “conclude[d] that when the Commonwealth seeks an order pursuant to … Gelfgatt … compelling a defendant to decrypt an electronic device by entering a password,” “art. 12 requires that, for the foregone conclusion to apply, the Commonwealth must prove beyond a reasonable doubt that the defendant knows the password.” In response to the single justice’s second question, the Court concluded that the Commonwealth met its burden in this case. Finally, in response to the single justice’s third question, the Court ruled that “a judge acting on a renewed Gelfgatt motion may consider additional information without first finding that it was not known or not reasonably available at the time of the first filing.” Because the judge here erroneously reached a contrary conclusion in denying the Commonwealth’s renewed motion, the Court reversed the denial, thereby compelling the defendant to enter his cell phone’s password into the device.
Although the decision in this case is a disappointing one, it is not clear how much (or how little) information the Commonwealth was able to present regarding the defendant’s knowledge of the phone’s password. If you or a loved one is criminally charged and the Commonwealth is seeking to use information in your cellular telephone, computer, or other electronic device against you, you will need the assistance of a skilled lawyer to mount every possible defense. Attorney Daniel Cappetta is up to date on the most recent law and continually uses creative and persuasive arguments to help each client get the best possible result. Call him for a free consultation today.