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Court Approves Warrant Requiring Defendant Provide Password for Encrypted Phone

Last month, a state appellate court issued a written opinion in a Massachusetts sex trafficking case discussing whether the lower court could compel the defendant to enter a password so that the prosecution could execute a search warrant that was obtained for the defendant’s cell phone. Ultimately, the court concluded that the defendant could be compelled to enter the password and that it was not a violation of his right to be free from self-incrimination.

According to the court’s opinion, the defendant was arrested on suspicion of sex trafficking. When he was arrested, the defendant had two cellular phones with him. The prosecution’s evidence suggested that the defendant used the phone to communicate with several women. The prosecution successfully obtained a warrant to search the contents of the phone. However, the phone was encrypted, and the prosecution did not have the technology necessary to unlock the phone. Thus, the prosecution sought to compel the defendant to unlock the phone. The defendant claimed that requiring him to enter the password would require he incriminate himself.

The lower court denied the prosecution’s request to compel the defendant to enter the password, and the prosecution appealed.

The Court’s Decision

Before getting into the court’s decision, it is important to understand the exact nature of the defendant’s concern. Because the contents of the phone were already subject to a warrant, the defendant could not object to the prosecution accessing that information. Instead, the defendant claimed that by requiring he provide the password to his phone, the prosecution would be forcing him to “admit” that he knew the password.

The court began by explaining that a defendant’s right to be free from self-incrimination covers all testimonial statements. The court went on to note that testimonial “statements” include not just verbal statements, but also the “act of producing information” that may contain “communicative aspects.” However, the prosecution can compel a defendant to divulge a fact that “adds little or nothing to the sum total of the Government’s information. In these cases, such information is considered a “foregone conclusion.” The government claimed that it already knew the phone belonged to the defendant, and that the additional fact that he knew the password was a “foregone conclusion.”

The court agreed with the prosecution, holding that the defendant’s knowledge of the password was a foregone conclusion. The court explained that the phone was in the defendant’s possession when he was arrested, that the defendant provided the phone’s number as his contact number to police when he was arrested a month before for an unrelated crime, and that the subscriber information indicated it belonged to the defendant. Taking these facts into account, the court determined that requiring the defendant to unlock the phone would not violate his right to be free from self-incrimination.

Have You Been Arrested?

If you have recently been arrested for a Massachusetts crime, contact Attorney Patrick J. Murphy for assistance. Attorney Patrick Murphy is a dedicated criminal defense attorney with extensive experience handling Massachusetts sex offenses and other serious crimes. Through his experience, Attorney Murphy has obtained advanced knowledge of the complex and cutting-edge legal issues that frequently arise in these serious cases. To learn more about how Attorney Murphy can help you defend against the charges you are facing, call 617-367-0450 to schedule a free consultation today.