Massachusetts Supreme Judicial Court Rules Criminal Defendants can be Ordered to Provide Cell Phone Password to Police

The Massachusetts Supreme Judicial Court delivered an important decision today, ruling that a trial court can order a criminal defendant to provide the password to his phone that has been seized by the police and contains incriminating information about him.  The name of the case is Commonwealth v. Jones.

In December of 2016, the police began investigating the theft of a purse at a hotel in Woburn.  The victim of the stolen purse told the police the defendant was the culprit.  She explained that she had started dating the defendant and shortly thereafter, he had provided her with a place to live in exchange for her working as a prostitute.  The victim provided the cops with the defendant’s cell phone number and said she and the defendant exchanged text messages to arrange the logistics of the prostitution enterprise.  According to the victim, the defendant would also text customers who were looking to hire prostitutes.  The victim shared screen shots of messages from the defendant’s phone that contained communications from customers and text messages from the defendant to the victim with instructions to perform specific sex acts on certain customers.  The police were able to determine the number to the defendant’s cell phone was listed on backpage.com (a website where prostitution services are advertised).  When the defendant was ultimately arrested for sex trafficking, he had the phone in his pants pocket.  Further, the defendant had previously provided the phone’s number to the police when he was arrested on an unrelated case and subscriber information established the phone was owned by someone with the defendant’s name and date of birth.  There can be no real dispute that the defendant is the owner of the cell phone and he uses the phone to exchange information with third parties about his prostitution business.

After the defendant’s arrest the police obtained a warrant to search his phone.  However, officers discovered the phone was password-protected and they were unable to access the data.  The Commonwealth filed a motion for a court order to compel the defendant to provide the password to the police.  A superior court judge denied the motion and the Commonwealth appealed.  The Supreme Judicial Court reversed and ordered the defendant to provide his password.

The Court acknowledged the state and federal constitutions allow a criminal defendant to refuse to incriminate himself.  It would seem as if forcing a defendant to unlock his phone so the police can see incriminating information is a clear violation of that constitutional principal.  However, the Court said when the government already knows the facts to be disclosed, production of the information is a “foregoing conclusion” and the defendant is not actually incriminating himself.  Therefore, in order for the court to order a defendant to unlock his phone, the Commonwealth needs to prove beyond a reasonable doubt that it already knows the testimony that is implicit in the act of the required production.  In this case, where the defendant had possession of the phone and it was clear he used it to facilitate his illegal prostitution business, the Court concluded it was appropriate for him to be compelled to unlock it.

This is a confusing decision, and the concurrence correctly asserts the ruling “sounds the death knell for a constitutional protection against compelled self-incrimination in the digital age.”