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In re Grand Jury Investigation

Appeals Court of Massachusetts, Middlesex

December 11, 2017

IN THE MATTER OF A GRAND JURY INVESTIGATION.

          Heard: October 5, 2017.

         Motion filed in the Superior Court Department on January 22, 2016.

         The proceeding was heard by Kimberly S. Budd, J., and entry of a judgment of contempt was ordered by her.

          Joanne M. Daley, Committee for Public Counsel Services, for the petitioner.

          Kevin J. Curtin, Assistant District Attorney, for the Commonwealth.

          Present: Sullivan, Blake, & Singh, JJ.

          BLAKE, J.

         The petitioner appeals from an order directing him to enter his personal identifying number (PIN) access code (hereinafter PIN code) into his Apple iPhone (a "smart" cellular telephone, hereinafter iPhone), and a subsequent judgment of contempt for refusing to comply. We affirm.

         Background.

         A Middlesex County grand jury requested that an assistant district attorney seek an order from a Superior Court judge as part of an ongoing investigation of an assault and battery on two children. The Commonwealth thus moved for an order that the petitioner produce the PIN code and any other electronic key or password required for the iPhone. A search warrant previously issued in the Lowell Division of the District Court Department had authorized a search of the contents of the iPhone.

         The motion, the proposed order, and two additional documents were filed in court under seal. The motion and the proposed order were served on counsel for the petitioner; the additional documents were not. One of the additional documents was a statement showing the petitioner's ownership and control of the iPhone and the Commonwealth's knowledge thereof. The other document was an affidavit of the assistant district attorney, which summarized the evidence before the grand jury; appended to the affidavit was a transcript of the grand jury proceedings.

         The petitioner filed a reply. After a hearing, in which petitioner's counsel participated, the Commonwealth's motion was allowed, and an order entered detailing the protocol by which the petitioner would enter the PIN code so that the search warrant could be executed. The order also prohibited the Commonwealth from introducing evidence of the petitioner's act of production in any prosecution of him.

         When the petitioner refused to comply with the order, the Commonwealth filed a petition for civil contempt. The same day, the petitioner was adjudicated in civil contempt and was ordered held in custody until he purged the contempt by complying with the order. A stay of execution of the judgment was allowed by agreement. This appeal followed.

         D ...


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