The Massachusetts Court of Appeals recently affirmed an order from the Superior Court holding a petitioner in contempt for refusing to abide by an order to unlock his iPhone following a request from a Middlesex County Grand Jury.
A grand jury hearing facts in an ongoing investigation in Middlesex County involving an alleged assault and battery on two children requested that the prosecutor seek an order from a Superior Court judge ordering a person to produce the PIN code and/or password for his iPhone. A search warrant had issued out of the Lowell District Court authorizing a search of the phone, but the person refused to provide the PIN code. Following a hearing, a superior court judge entered an ordered detailing protocol how the petitioner would enter the PIN code so that the search warrant could be executed. This order also barred the prosecutor from introducing evidence against the petitioner’s “act of production” of providing the PIN code in any prosecution against him.
As a result, the person was held in contempt following his refusal to comply with the judge’s order and, thereafter, petitioned to the appeals court on the question of whether (a) he could be forced to provide the PIN/passcode to the iPhone; and (b) consequently, whether the contempt order was lawful.
In ruling that the order to produce the PIN code was lawful, the appeals court reasoned the act of the petitioner in providing the passcode to the iPhone did not implicate 5th Amendment protections.
The 5th Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. This protection applies to testimonial statements that might support a conviction, and to evidence that might furnish a link in the chain of evidence needed to prosecute a defendant.
The question presented in this case was whether the act of producing the PIN code was an “act of production” implicating 5th Amendment concerns; and whether the act would be considered “testimonial.” Traditionally, the 5th Amendment privilege applied to oral or written statements that are deemed testimonial. The act of producing evidence demanded by the government, however, may also have “communicative aspects” that would render the 5th Amendment applicable. Thus, whether an act of production is testimonial depends on whether the government compels the individual to disclose “the contents of his own mind” to explicitly or implicitly communicate some statement of fact.
With this background, however, the law recognizes that some compelled information may lose its testimonial character in certain circumstances. For example, even if the compelled production does force the person to disclose a statement of fact, the information sought may lose its testimonial character and not violate the 5th Amendment if the information sought and ultimately provided is a “foregone conclusion.”
The “foregone conclusion” exception to the 5th Amendment privilege against self-incrimination means that an act of production does not involve testimonial communication where the facts at issue are already known to the government and where the individual adds little or nothing to the information known to the government. In order to establish the foregone conclusion exception, the government bears the burden of establishing knowledge of:
- the existence of the evidence demanded;
- the possession or control of that evidence by the defendant; and
- the authenticity of the evidence.
In other words, if the government compels a defendant to tell the government what it already knows, the order compelling production does not violate the defendant’s rights under the 5th Amendment to the United States Constitution.
In this particular case, the Commonwealth asserted that the act of the person providing the PIN code to his iPhone, in light of the evidence already known to the Commonwealth, would have added nothing to the information already known. The Commonwealth here knew that the iPhone contained files that were relevant to its investigation; the PIN code was necessary to access the iPhone; the petitioner knew the passcode and was able to enter it; and a search warrant establishing probable cause was already sought for and granted for that information.
Because the order compelling production of the iPhone passcode was valid, the petitioner’s appeal asserting that the order of contempt (for his refusal to provide the passcode) was lawful.
On the issue of civil contempt, “there must be clear and undoubted disobedience of a clear and unequivocal command” of the court. In these cases, the petitioner has the burden of proving his inability to comply with the court order, and in this case, there was no evidence that the petitioner was not able to do so (e.g., did not know the PIN code). Accordingly, the Appeals Court held that the superior court judge did not abuse her discretion in finding the petitioner here in civil contempt or in committing him until he agreed to abide by the court order.