Heard: October 5, 2017.
filed in the Superior Court Department on January 22, 2016.
proceeding was heard by Kimberly S. Budd, J., and
entry of a judgment of contempt was ordered by her.
M. Daley, Committee for Public Counsel Services, for the
J. Curtin, Assistant District Attorney, for the Commonwealth.
Present: Sullivan, Blake, & Singh, JJ.
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.
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.
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
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.
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.