Massachusetts applies the “foregone conclusion” test to whether forcing defendant to enter the password on his cell phone to search it violates the Fifth Amendment. The court concludes that defendant’s possession of the phone and admission it was his and it was used in offense satisfies the standard. Commonwealth v. Jones, 481 Mass. 540 (Mar. 6, 2019)
The Commonwealth may, however, compel testimonial acts of production without violating a defendant’s rights under the Fifth Amendment or art. 12 where the “facts conveyed [by the act] already are known to the government, such that the individual ‘adds little or nothing to the sum total of the Government’s information.’” Gelfgatt, 468 Mass. at 522, quoting Fisher, 425 U.S. at 411. In these circumstances, because the facts implicitly disclosed through the act of production are already known to the Commonwealth, they are considered a “foregone conclusion” and do not force a defendant to incriminate himself or herself. Gelfgatt, supra at 522-523, 525-526.
Although the foregone conclusion exception originated in the context of the compelled production of documents in response to a government subpoena, see Fisher, 425 U.S. at 411, we extended its application to the compelled production of passwords to encrypted electronic devices in Gelfgatt, 468 Mass. at 522-525. In Gelfgatt, the defendant was an attorney who was alleged to have, “through his use of computers, conducted a sophisticated scheme of diverting to himself funds that were intended to be used to pay off large mortgage loans.” Id. at 513. The files located on four computers seized from the defendant, however, were encrypted and were thus inaccessible to the Commonwealth without the entry of a password to decrypt them. Id. at 516-517. We concluded that compelling the defendant to decrypt the files by entering the passwords into the computers could be a testimonial act of production under the Fifth Amendment and art. 12. Id. at 522, 525-526. Nonetheless, we held that “[t]he facts that would be conveyed by the defendant through his act of decryption … already [were] known to the [Commonwealth] and, thus, [were] a ‘foregone conclusion.’” Id. at 524. We therefore held that the Commonwealth’s motion to compel decryption did not violate either the Fifth Amendment or art. 12. Id. at 524, 525. See id. at 523 (because facts conveyed by act of decryption were foregone conclusion, “the act of decryption is not a testimonial communication that is protected” by Fifth Amendment or art. 12).
Accordingly, for the foregone conclusion exception to apply, the Commonwealth must establish that it already knows the testimony that is implicit in the act of the required production. Id. at 522-523. In the context of compelled decryption, the only fact conveyed by compelling a defendant to enter the password to an encrypted electronic device is that the defendant knows the password, and can therefore access the device. See id. See also Kerr, Compelled Decryption and the Privilege Against Self-incrimination, Tex. L. Rev. (forthcoming 2019) (manuscript at 18) (“the only assertion implied by entering the password is that the person compelled knows the password”). The Commonwealth must therefore establish that a defendant knows the password to decrypt an electronic device before his or her knowledge of the password can be deemed a foregone conclusion under the Fifth Amendment or art. 12.
. . .
With these considerations in mind, we conclude that when the Commonwealth seeks a Gelfgatt order 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. Whatever the standard under the Fifth Amendment may be, requiring the Commonwealth to bear this high burden is necessary to ensure that the art. 12 rights of defendants are adequately protected, and reflects our recognition that a “person’s right to be free from self-incrimination is a fundamental principle of our system of justice,” and that we have imposed even higher standards than the Fifth Amendment to protect that right. Borans, 388 Mass. at 455. See Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979) (“The standard [of proof] serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision”); Commonwealth v. Alicea, 464 Mass. 837, 841-842, 985 N.E.2d 1197 (2013) (under art. 12, witness may not be compelled to testify unless “it is perfectly clear, from a careful consideration of all the circumstances in the case, … that the [testimony] cannot possibly have such tendency to incriminate” [citation omitted]). See also Opinion of the Justices, 412 Mass. at 1210 (discussing broader protections afforded under art. 12).
. . .
At the start of the investigation of the defendant, Sara made statements to police tending to show the defendant’s regular use of the LG phone. Sara stated that she would speak directly with the defendant by calling the LG phone and that she also communicated with him by exchanging text messages with the LG phone. She also explained that the defendant would regularly respond to customer text messages by using the LG phone. Additionally, an examination of Sara’s phone revealed that the LG phone’s telephone number was listed in the contacts section of her phone as “[ ]Dennis,” creating the reasonable inference that, at the very least, Sara understood that the defendant could be reached by contacting the LG phone.
The record also reveals that the LG phone was in the defendant’s possession at the time he was arrested by police. Indeed, it was recovered from his front pants pocket. Additionally, the motion judge acknowledged that the record revealed that the defendant had characterized the telephone number of the LG phone as his telephone number to police while he was being booked following an arrest in an unrelated criminal matter approximately one month before he was arrested in this case. Subscriber information for the LG phone also revealed that the LG phone subscriber had listed a “backup” telephone number. Police records pertaining to this backup telephone number showed that it belonged to a “Dennis Jones” with the same Social Security number and date of birth as the defendant. Finally, the LG phone’s CSLI records revealed that at various times, the LG phone was in the same location at the same time as another cell phone that was confirmed to be the defendant’s phone. The CSLI records also revealed that the phone calls were made from the LG phone when that phone was confirmed to be miles away from the female associate who assisted the defendant in conducting prostitution (and who had her own personal phone). These facts undoubtedly create the reasonable inference that the defendant regularly used the LG phone and that he therefore knew its password.
The defendant principally argues that his knowledge of the password is not a foregone conclusion because the Commonwealth has failed to prove that he had sole ownership and control of the LG phone. Specifically, the defendant points to evidence in the record showing that the LG phone was used by more than one person and to CSLI records confirming that, at various times, the LG phone and the defendant were in different locations.
Although proof of ownership or exclusive control of the LG phone would certainly further support the Commonwealth’s argument, we explained supra that the Commonwealth is only required to establish the defendant’s knowledge of the password beyond a reasonable doubt, not his ownership or exclusive control of the LG phone. That multiple people may have used the LG phone and therefore may know its password does not disprove the defendant’s knowledge of the password; exclusive control of the phone is not required. This is especially so in light of Sara’s characterization of the LG phone as the defendant’s business phone that was used by both the defendant and a female associate to arrange and direct prostitution transactions — a characterization that was corroborated by the record.