Heard: November 6, 2018.
Telephone. Witness, Compelling giving of evidence,
Self-incrimination. Constitutional Law, Self-incrimination.
action commenced in the Supreme Judicial Court for the county
of Suffolk on May 17, 2018. The case was reported by Gants,
Gabriel Pell, Assistant District Attorney, for the
A. Reidy (George F. Ohlson, Jr., also present) for the
following submitted briefs for amici curiae: Andrew Levchuk
& Lauren C. Ostberg for Orin S. Kerr.
Rangaviz, Committee for Public Counsel Services, for
Committee for Public Counsel Services.
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.
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
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.
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.
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
"2. Did the Commonwealth meet its burden of proof in
"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
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.
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.
relevant undisputed facts are taken from the parties'
submissions to the motion judge. See Gelfgatt, 468
Mass. at 514.
The investigation and the defendant's arrest.
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,  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
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
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.
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
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. 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.
The Commonwealth's Gelfgatt motions.
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.
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.
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.
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 ...