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Commonwealth v. Jones

Supreme Judicial Court of Massachusetts, Suffolk

March 6, 2019

COMMONWEALTH
v.
DENNIS JONES

          Heard: November 6, 2018.

         Cellular Telephone. Witness, Compelling giving of evidence, Self-incrimination. Constitutional Law, Self-incrimination.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 17, 2018. The case was reported by Gants, C.J.

          Gabriel Pell, Assistant District Attorney, for the Commonwealth.

          James A. Reidy (George F. Ohlson, Jr., also present) for the defendant.

          The following submitted briefs for amici curiae: Andrew Levchuk & Lauren C. Ostberg for Orin S. Kerr.

          David Rangaviz, Committee for Public Counsel Services, for Committee for Public Counsel Services.

          Maura Healey, Attorney General, & Randall E. Ravitz, Assistant Attorney General, for the Attorney General.

          Laurent Sacharoff, pro se.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          KAFKER, J.

         A grand jury returned indictments charging the defendant, Dennis Jones, 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. At the time of his arrest, the Commonwealth seized a cell phone from the defendant. During its investigation of the defendant, the Commonwealth developed information leading it to believe that the contents of the cell phone included material and inculpatory evidence. The Commonwealth thereafter applied for and was granted a search warrant to search the cell phone. The search warrant has yet to be executed, however, as the Commonwealth was -- and currently remains -- unable to access the cell phone's contents because they are encrypted. The contents can only be decrypted with the entry of a password.[1]

         The Commonwealth sought to compel the defendant to decrypt the cell phone by filing a motion for an order requiring the defendant to produce a personal identification number access code in the Superior Court. The central legal issue concerned whether compelling the defendant to enter the password to 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 our 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" under the Fifth Amendment and art. 12. Following a hearing, a 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 under the Fifth Amendment.

         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, noting that because the additional information was known or reasonably available to the Commonwealth when the initial motion was filed, he was "not inclined" to consider the renewed motion under the Massachusetts Rules of Criminal Procedure. The judge concluded that even if he were to consider the renewed motion, the Commonwealth had still failed to prove that the defendant's knowledge of the password was a foregone conclusion.

         The Commonwealth then filed a petition for relief in the county court, pursuant to G. L. c. 211, § 3; the single justice reserved and reported the case to the full court. The single justice asked the parties to address three specific issues, in addition to any other questions they thought relevant. Those issues are the following:

"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)?
"2. Did the Commonwealth meet its burden of proof in this case?
"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 the additional information?"

         We conclude that when the Commonwealth seeks an order pursuant to our decision in Gelfgatt (Gelfgatt order or motion) compelling a defendant to decrypt an electronic device by entering a password, art. 12 requires the Commonwealth to prove that the defendant knows the password beyond a reasonable doubt for the foregone conclusion exception to apply. We also conclude that the Commonwealth met its burden in this case. Finally, we conclude 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 to the Commonwealth at the time the earlier Gelfgatt motion was filed.

         We therefore reverse the judge's denial of the Commonwealth's renewed Gelfgatt motion, and we remand the case to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone at issue.[2]

         Background.

         The relevant undisputed facts are taken from the parties' submissions to the motion judge.[3] See Gelfgatt, 468 Mass. at 514.

         1. The investigation and the defendant's arrest.

         In December 2016, the police responded to a report of a stolen purse at a hotel in Woburn. Upon arriving, the woman whose purse was stolen, Sara, [4] identified the defendant as the perpetrator of the theft. She explained that she knew the defendant because she had met him through an online dating website a few weeks earlier. Sara eventually disclosed that although she had initially believed that she and the defendant were dating, the defendant soon induced her into working as a prostitute in exchange for housing. Based on this information, the police began investigating the defendant.

         During their investigation, police linked a cell phone, later determined to be an LG brand cell phone (LG phone), to the defendant. Sara stated that she communicated with the defendant by contacting the LG phone. Specifically, she "talk[ed] on the phone and [exchanged] text messag[es] with [the defendant]" while he used the LG phone. Additionally, the LG phone's telephone number was listed in the contacts section of Sara's cell phone as "[]Dennis."

         Sara told police that the LG phone was used by the defendant and a female associate to conduct prostitution. Specifically, Sara explained that the defendant would regularly respond to customer text messages by using the LG phone, but that his female associate would answer telephone calls from customers so that the customers would hear a "female voice." Additionally, an examination of Sara's cell phone revealed several communications between her phone and the LG phone related to prostitution, including screenshots of customer communications sent to the LG phone in response to online advertisements seeking to arrange prostitution transactions with Sara; messages from the LG phone explicitly instructing Sara on how to perform sexual acts on customers; messages from the LG phone trying to convince Sara to return to the defendant after she had attempted to flee from him out of fear; and messages from the LG phone apologizing for the defendant's behavior. Police also discovered several Internet postings on the website Backpage.com advertising Sara as an escort that listed the telephone number of the LG phone as the principal point of contact for customers seeking to engage in a prostitution transaction with her.

         The police arrested the defendant shortly after commencing their investigation. At the time of the arrest, the police recovered two cell phones in his possession, one of which was the LG phone. The LG phone was found in the defendant's pants pocket.

         Soon after the arrest, the police applied for a search warrant to perform a forensic search of the LG phone. The application was granted. The police thereafter attempted to execute the search warrant, but discovered that its contents were encrypted such that they could be accessed only after the entry of a password to unlock, and thereby decrypt, the cell phone.[5] The police determined that they did not have the technological capability to bypass the lock function without the entry of the password and were therefore unable to execute the search warrant.

         2. The Commonwealth's Gelfgatt motions.

         As discussed supra, the Commonwealth filed a Gelfgatt motion seeking a court order compelling the defendant to decrypt the LG phone by entering its password. The Commonwealth argued that compelling the defendant to enter the password would not force him to incriminate himself because the act itself would not reveal any information that the Commonwealth did not already know. Following a hearing, a judge denied the motion, concluding that because the Commonwealth had failed to "demonstrate[] with reasonable particularity that [the defendant] possesses the [password] for the LG phone," the defendant's knowledge of the password was not a foregone conclusion under the Fifth Amendment.

         When the Commonwealth renewed its motion, it presented additional factual information that it argued proved that the defendant's knowledge of the password was a foregone conclusion, including the LG phone's subscriber information that tended to link the defendant to the LG phone, subsets of the LG phone's cell site location information (CSLI) records, and a prior statement the defendant had made to police during his booking in an unrelated criminal matter in which he identified the LG phone as his telephone number. The judge denied the renewed motion.

         The Commonwealth filed a petition for relief in the county court, pursuant to G. L. c. 211, § 3. The single justice reserved and reported the case to the full court, asking the parties to address the three questions quoted supra.

         Discussion.

         The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." Similarly, art. 12 provides that "[n]o subject shall ... be compelled to accuse, or furnish evidence against himself." Accordingly, it is a "fundamental principle of our system of justice" that a person enjoys the "right to be free from self-incrimination" under the ...


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