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Commonwealth v. Davis

Supreme Court of Pennsylvania

November 20, 2019

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSEPH J. DAVIS, Appellant

          ARGUED: May 14, 2019

          Appeal from the Order of the Superior Court dated November 30, 2017 at No. 1243 MDA 2016, affirming the Order of the Court of Common Pleas of Luzerne County, Criminal Division, dated June 30, 2016 Nos. CP-40-CR-291-2016 and CP-40-MD-11-2016

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          TODD, JUSTICE

         In this appeal by allowance, we consider an issue of first impression: Whether a defendant may be compelled to disclose a password to allow the Commonwealth access to the defendant's lawfully-seized, but encrypted, computer. For the reasons that follow, we find that such compulsion is violative of the Fifth Amendment to the United States Constitution's prohibition against self-incrimination. Thus, we reverse the order of the Superior Court.

         On July 14, 2014, agents of the Office of Attorney General ("OAG"), as part of their investigation of the electronic dissemination of child pornography, discovered that a computer at an identified Internet Protocol (IP) address[1] registered with Comcast Cable Communications ("Comcast"), repeatedly utilized a peer-to-peer file-sharing network, eMule, to share child pornography. N.T. Hearing, 1/14/16, at 6-8. Specifically, agents used a computer with software designed to make a one-to-one connection with the computer at the aforementioned IP address and downloaded a file, later confirmed to contain child pornography, which was saved to the OAG computer. Id. at 5-6. Based upon its transference and review of the file, the OAG obtained a court order to compel Comcast to provide subscriber information associated with the IP address. The information provided by Comcast disclosed the subscriber as Appellant Joseph Davis, as well as his address. Id. at 8-9.

         On September 9, 2014, the OAG applied for, received, and executed a search warrant at Appellant's apartment. OAG Special Agent Justin Leri informed Appellant that he was not under arrest, but that the search involved an investigation of child pornography. Id. at 11. Appellant was then read his Miranda warnings and waived his Miranda rights. Id. Appellant acknowledged that he was the sole user of a Dell computer.[2] He admitted to having prior pornography convictions, but denied the computer contained any illegal pornographic images. Appellant then declined to answer additional questions without a lawyer. Id. Later examination of the computer revealed that the hard drive had been "wiped," removing data entirely or rendering it unreadable. Id. at 43-44.

         On October 4, 2015, OAG Agent Daniel Block identified a different child pornography video that was shared with a different IP address utilizing the eMule server. An administrative subpoena to Comcast regarding this IP address again produced Appellant's name and contact information. A direct connection was made from OAG computers to this IP address, and one electronic file containing child pornography was transferred to the OAG computer. Id. at 19.

         On October 20, 2015, the OAG executed another search warrant at Appellant's apartment based upon this video. At Appellant's apartment, the agents discovered a single computer, an HP Envy 700 desktop. After being Mirandized, Appellant informed the agents that he lived alone, that he was the sole user of the computer, and that he used hardwired Internet services which are password protected, and, thus, not accessible by the public, such as through Wifi. Id. at 26. Appellant offered that only he knew the password to his computer. Id. Appellant also informed the agents, inter alia, that he watched pornography on the computer which he believed was legal; that he had previously been arrested for child pornography; and that child pornography was legal in other countries so he did not understand why it was illegal in the United States. Id. at 27-28. The agents arrested Appellant for the eMule distributions and seized his computer. Agent Block asked Appellant for the password to this computer and Appellant refused. Id. at 28. Subsequently, when in transit to his arraignment, Appellant spoke openly about watching various pornographic movies, indicating that he particularly liked watching 10, 11, 12, and 13-year olds. Id. at 30. Agent Block again requested that Appellant provide him with the password to the computer. Appellant responded: "It's 64 characters and why would I give that to you? We both know what's on there. It's only going to hurt me. No f*cking way I'm going to give it to you." Id.

         Later, in a holding cell, Agent Leri conversed with Appellant who, inter alia, offered that he believes the "government continuously spies on individuals," and questioned "why it's illegal to . . . view movies in the privacy of [his] own home." Id. at 35. In a later conversation, Agent Leri asked Appellant if he could remember the password. Appellant replied that he could not remember it, and that, even if he could, it would be like "putting a gun to his head and pulling the trigger." Id. at 35-36. In a subsequent visit, when asked again about the password, Appellant offered that "he would die in jail before he could ever remember the password." Id. at 37.

         A supervisory agent in computer forensics, Special Agent Braden Cook, testified that a portion of Appellant's HP 700 Envy computer's hard drive was encrypted with a program called TrueCrypt Version 7.1. Id. at 42. The entire hard drive of the computer was encrypted and "there was no data that could be read without opening the TrueCrypt volume." Id. at 46. Agent Cook could only confirm that there was "Windows on the computer and the TrueCrypt," and he had no knowledge of any specific files other than the operating system files. Id. at 50-51.

         Appellant was charged with two counts of disseminating child pornography in violation of 18 Pa.C.S. § 6312(c), and two counts of criminal use of a communication facility in violation of 18 Pa.C.S. § 7512(a), which arose from the July 2014 and October 2015 detections.

         On December 17, 2015, the Commonwealth filed with the Luzerne County Court of Common Pleas a pre-trial motion to compel Appellant to divulge the password to his HP 700 computer. Appellant responded by invoking his right against self-incrimination. On January 14, 2016, the trial court conducted an evidentiary hearing at which several OAG agents testified, as set forth above, about the investigation supporting the seizure of the computer.

         The trial court focused on the question of whether the encryption was testimonial in nature, and, thus, protected by the Fifth Amendment. The trial court opined that "[t]he touchstone of whether an act of production is testimonial is whether the government compels the individual to use 'the contents of his own mind' to explicitly or implicitly communicate some statement of fact." Trial Court Opinion, 6/30/2016, at 8-9 (citation omitted). As part of its analysis, the trial court looked to the "foregone conclusion" exception to the Fifth Amendment privilege against self-incrimination as articulated by the United States Supreme Court in Fisher v. United States, 425 U.S. 391, 409 (1976). The court noted the rationale underlying this doctrine is that an act of production does not involve testimonial communication if the facts conveyed are already known to the government, such that the individual "'adds little or nothing to the sum total of the government's information.'" Trial Court Opinion, 6/30/2016, at 9 (quoting Fisher, 425 U.S. at 409). The trial court offered that for this exception to apply, the government must establish its knowledge of (1) the existence of the evidence demanded; (2) the possession or control of the evidence by the defendant; and (3) the authenticity of the evidence. Id. at 9.

         Applying the foregone conclusion exception, the trial court found that, in the case at bar, the computer located in Appellant's residence had hard-wired Internet access only; Appellant admitted it was TrueCrypt encrypted; that he was the only user, and he was the only one who knew the password; Appellant indicated to the agents that "we both know what is on there," and stated that he would "die in prison before giving up the password;" and that the Commonwealth knew with a reasonable degree of certainty that child pornography was on the computer. Id. at 11. Based upon these facts, the trial court determined that the information the Commonwealth sought from Appellant was a foregone conclusion, in that the facts to be conveyed by Appellant's act of production of his password already were known to the government. As, according to the trial court, Appellant's revealing his password would not provide the Commonwealth with any new evidence, and would simply be an act that permitted the Commonwealth to retrieve what was already known to them, the foregone conclusion exception was satisfied. Thus, on June 30, 2016, the trial court granted the Commonwealth's motion and directed Appellant to supply the Commonwealth with any passwords used to access the computer within 30 days. Appellant filed an interlocutory appeal.

         A three-judge panel of the Superior Court affirmed. Commonwealth v. Davis, 176 A.3d 869 (Pa. Super. 2017).[3] Like the trial court, the Superior Court found that, to qualify for the Fifth Amendment privilege, a communication must be testimonial. The Superior Court observed that the question of whether compelling an individual to provide a digital password was testimonial in nature was an issue of first impression for the court. Building upon the trial court's analysis, the Superior Court explained that the Fifth Amendment right against self-incrimination is not violated when the information communicated to the government by way of a compelled act of production is a foregone conclusion. The court reasoned that the foregone conclusion exception provides that an act of production does not involve testimonial communication where the facts conveyed already are known to the government and set forth the applicable three-prong test. Id. at 874-75 (citing Fisher, 425 U.S. at 410-13).

         Applying the foregone conclusion exception, the Superior Court, contrary to the trial court, focused on the password itself, and reasoned that the Commonwealth established the computer could not be opened without the password, that the computer belonged to Appellant and the password was in his possession, and that this information was "self-authenticating" ― i.e., if the computer was accessible upon entry of the password, the password was authentic. Id. at 876. Further, the court noted that multiple jurisdictions have held that the government's knowledge of the encrypted documents or evidence that it sought to compel did not need to be exact, and determined that, based on the agents' forensic investigation, as well as Appellant's own statements to the agents while in custody, there was a high probability that child pornography existed on his computer. Thus, the Superior Court concluded that the trial court did not err in holding that the act of providing the password in question was not testimonial in nature and that Appellant's Fifth Amendment right against self-incrimination would not be violated by compelling him to disclose the password.

         Our Court granted allocatur to consider the following issue, as framed by Appellant:

May [Appellant] be compelled to disclose orally the memorized password to a computer over his invocation of privilege under the Fifth Amendment to the Constitution of the United States, and Article I, [S]ection 9 of the Pennsylvania Constitution?

Commonwealth v. Davis, 195 A.3d 557 (Pa. 2018) (order). The parameters of our review of an issue involving a constitutional right is well settled. Our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Baldwin, 58 A.3d 754, 762 (Pa. 2012).

         Appellant argues the Fifth Amendment prohibits government compulsion to disclose a computer password against one's will, reasoning that requiring an individual to recall and disclose the memorized password is quintessentially testimonial, i.e., revealing the contents of one's own mind. Indeed, according to Appellant, the privilege is not just about information, but is "about a core of individual autonomy into which the state may not encroach." Appellant's Brief at 16. Appellant maintains that, as his password exists in his mind, he cannot be compelled to remember the password or reveal it, as a person's thoughts and knowledge are at the core of the Fifth Amendment.

         According to Appellant, the Fifth Amendment protects against not only compelled written and oral testimony, but nonverbal acts as well. Appellant continues that, while not at issue in this appeal, even if the Commonwealth had obtained an order compelling Appellant to physically enter his password into his computer ― rather than forcing him to speak or write down his password ― this would still constitute a form of written testimony and, in any event, such a demand for action still requires using the contents of his mind to enter his password. Appellant contrasts such compulsion with one requiring merely physical acts, such as being required to wear a particular shirt, provide a blood sample, or provide a handwriting exemplar, which are not testimonial in nature, as they do not rely on the contents of one's mind. See Holt v. United States, 218 U.S. 245, 252-53 (1910); Schmerber v. California, 384 U.S. 757, 761 (1966); Gilbert v. California, 388 U.S. 263, 266-67 (1967). Appellant offers that providing a password that will unlock data on a computer is no different from providing a combination that unlocks a briefcase or a safe, which has been held to be testimonial in nature.

         Appellant further asserts that the Supreme Court's "'foregone conclusion' rationale," as set forth in Fisher, does not apply to computer passwords. Appellant's Brief at 24. Appellant suggests that the holding in Fisher was limited to its facts and merely involved the question of whether the disclosure of certain tax documents known to be in the possession of the defendants' attorneys, as agents of the defendants, could be compelled by the government. In distinguishing Fisher, Appellant not only emphasizes that in that case the request did not compel oral testimony, or require restating, repeating, or affirming the truth of the contents of the documents, but explains that, because accountants prepared the papers which were ultimately possessed by defendants' attorneys, and could independently authenticate them, the Government was not relying upon the "truth-telling" of the defendants. Fisher, 425 U.S. at 411.

         Appellant submits that, regardless of the scope of the foregone conclusion rationale, it is limited to the act of producing documents and that, as discussed below, the United States Supreme Court has applied the foregone conclusion exception only once since Fisher, rejecting its usage in the context of the compelled production of business records. United States v. Hubbell, 530 U.S. 27 (2000) (dismissing government's reliance on foregone conclusion exception, finding that compulsion to produce papers that would require defendant to make use of his own mind to identify hundreds of documents responsive to the request did not fall within the exception).

         Appellant asserts that, even if the foregone conclusion rationale could apply to the compelled decryption of a computer, it cannot be satisfied in this matter. Specifically, as to the password itself, Appellant contends that it is not a foregone conclusion that he even knows the password at this time. Likewise, if the rationale goes to the presence of contraband on Appellant's computer, which Appellant maintains that it does, here, the OAG agents noted that they could not tell what might be on the confiscated computer, and, as the computer was not connected to the Internet when it was seized, there is no proof that it was the one used to share pornography on eMule.[4] Finally, Appellant adds that the relatively few states that have considered the decryption password issue have reached divergent conclusions, and stresses that the national trend is toward greater protections.

         The Commonwealth explains that the Fifth Amendment, by its terms, provides that no person shall be compelled in any criminal case to be a witness against himself; thus, according to the Commonwealth, this Amendment covers only communications that are testimonial, and the compulsion to produce physical evidence is not protected. The Commonwealth relies almost exclusively on what it describes as the foregone conclusion "doctrine," as articulated in Fisher and other decisional law. The Commonwealth surveys various decisions and submits that the majority of cases find it logical and sound to extend the foregone conclusion exception to providing the password to an encrypted device. Here, according to the Commonwealth, the compelled act is the surrendering of the password, and the "testimony" inherent in Appellant's production of the password ― the existence, location, and authenticity, of the password ― is a foregone conclusion. In short, the Commonwealth contends that revealing the password will add nothing communicative to the government's information as it does not disclose information about the computer or its contents. Thus, the Commonwealth asserts it has met its burden in this regard.[5]

         Our analysis begins with the United States Constitution. The Self-Incrimination Clause of the Fifth Amendment provides "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This privilege not only applies to a defendant in a criminal trial, but "in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate [the speaker] in future criminal proceedings." Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (citation omitted). "Although the text does not delineate the ways in which a person might be made a 'witness against himself,' we have long held that the privilege does not protect a suspect from being compelled by the State to produce 'real or physical evidence.' Rather, the privilege 'protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.'" Pennsylvania v. Muniz, 496 U.S. 582, 588-89 (1990) (citations omitted). As offered by Justice Oliver Wendell Holmes, "the prohibition of compelling a man in criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." Holt, 218 U.S. at 252-53. Indeed, "in order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a 'witness' against himself." Doe v. United States, 487 U.S. 201, 210 (1988) ("Doe II") (footnote omitted).

         However, in the realm of the non-physical disclosure of information, the privilege is broad, as "compelled testimony that communicates information that may 'lead to incriminating evidence' is privileged even if the information itself is not inculpatory." Id. 487 U.S. at 208 n.6. Thus, it is a "protection against the prosecutor's use of incriminating information derived directly or indirectly from the compelled testimony." Hubbell, 530 U.S. at 38.

         The primary policy undergirding the Fifth Amendment privilege against self-incrimination is our country's "fierce 'unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt' that defined the operation of the Star Chamber, wherein suspects were forced to choose between revealing incriminating private thoughts and forsaking their oath by committing perjury." Muniz, 496 U.S. at 596 (quoting Doe II, 487 U.S. at 212). This being the case, "the definition of 'testimonial' evidence articulated in Doe must encompass all responses to questions that, if asked of a sworn suspect during a criminal trial, could place the suspect in the 'cruel trilemma.'" Id. at 597. As the Supreme Court reasoned, "[t]his conclusion is consistent with our recognition in Doe that '[t]he vast majority of verbal statements thus will be testimonial' because '[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts.'" Id. Thus, "[w]henever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, the suspect confronts the 'trilemma' of truth, falsity, or silence, and hence the response (whether based on truth or falsity) contains a testimonial component." Id. (footnote omitted).

         To invoke the Fifth Amendment privilege against the forced provision of information, a defendant must show (1) the evidence is self-incriminating; (2) the evidence is compelled; and (3) the evidence is testimonial in nature. Hubbell, 530 U.S. at 34. Thus, the government may not force someone to provide an incriminating communication that is "testimonial" in nature. It is only this last requirement ― whether the evidence sought to be compelled is testimonial ― that is at issue in this appeal.

         The United States Supreme Court has not rendered a decision directly addressing whether compelling a person to disclose a computer password is testimonial. In a series of foundational, but somewhat complex, cases, however, the high Court has discussed whether the act of production of documents may be testimonial for purposes of the Fifth Amendment.

         In Fisher, the high Court examined the question of what acts of production were testimonial in nature. Fisher involved consolidated cases in which the Internal Revenue Service ("IRS") sought to obtain voluntarily-prepared documents the defendant taxpayers had given to their attorneys. The IRS issued summonses on the defendant taxpayers' attorneys to produce the documents which included accountants' work papers, copies of the defendant taxpayers' returns, and copies of other reports and correspondence. The attorneys responded that ...


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