|Organization:||Massachusetts Supreme Judicial Court|
Commonwealth v. Jones
Supreme Judicial Court, March 6, 2019
(Self-incrimination/Decrypting an electronic device)
A grand jury indicted defendant with trafficking a person for sexual servitude, G.L. c. 265, §50(a), and deriving support from the earnings of a prostitute, G. L. c. 272, §7. The Commonwealth seized a cell phone from defendant at the time of his arrest. The Commonwealth applied for and was granted a search warrant to search the phone. The Commonwealth could not access the phone because it needed entry of a password. The Commonwealth filed a motion to compel the defendant to decrypt the phone by producing a personal identification number access code.
The single justice reported three questions, and the full Court answered them as follows:
“1. 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, 468 Mass. 512, 520-526 (2014)?”
When the Commonwealth seeks a Gelfgatt order compelling a defendant to decrypt an electronic device by entering a password, for the foregone conclusion to apply, the Commonwealth is required to prove beyond a reasonable doubt that the defendant knows the password.
*In the context of compelled decryption, the only fact conveyed by compelling a defendant to enter the password to an encrypted device is that the defendant knows the password. The entry of a password alone does not convey ownership of the device or its contents. Thus the Court emphasized (in direct opposition to Justice Lenk’s solo concurrence) that under both the Fifth Amendment and art. 12 the object of the “foregone conclusion” inquiry is only the target’s knowledge of the password and ability to access the device and NOT the prosecution’s knowledge of the contents of the device. The Court also rejected the concurrence’s attempt to conflate the protections of the Fourth Amendment/art. 14 and those of the Fifth Amendment/art. 12 by confirming that the Commonwealth lawfully obtains access to the contents of a digital device when it obtains a search warrant based on probable cause, as the Commonwealth did in this case.
*The decision is limited to only the physical entry of the password by the defendant.
“2. Did the Commonwealth meet its burden of proof in this case?”
Yes. Facts in support included: defendant’s regular use of the phone (answering phone calls/text messaging); in defendant’s possession at time of arrest; defendant stated the telephone number of the phone as his number at booking in an unrelated case a month prior; subscriber information could be linked to defendant; CSLI records revealed that at various times the phone was in the same location as another cell phone that belonged to the defendant.
*Commonwealth is required to establish the defendant’s knowledge of the password beyond a reasonable doubt, not ownership or exclusive control of phone or knowledge of its contents.
“3. When a judge denies a ’Gelfgatt’ motion filed by the Commonwealth and the Commonwealth thereafter renews its motion and provides additional supporting information that it had not provided in support of the motion initially, is a judge acting on the renewed motion first required to find that the additional information was not known or reasonably available to the Commonwealth when the earlier motion was filed before considering additional information?”
No. A judge acting on a renewed Gelfgatt motion may consider additional facts without first finding that it was not known or not reasonably available at the time the motion was first filed. The Court cautioned, however, that “[i]ncomplete, careless, repetitive, or tardy police or prosecution work need not be tolerated.”