ARGUED: May 14, 2019
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,
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.
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 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.
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. 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.
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.
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.
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.
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
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.
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.
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.
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
three-judge panel of the Superior Court affirmed.
Commonwealth v. Davis, 176 A.3d 869 (Pa. Super.
2017). 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).
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.
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.
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
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.
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.
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).
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. 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
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.
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).
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.
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).
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
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
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 ...