SJC Rules That Defendants Can Be Forced To Unlock Cellphones

BOSTON, MA -- The Supreme Judicial Court of Massachusetts ruled Wednesday that investigators can order suspects to give up pass codes to unlock mobile telephones without violating their Fifth Amendment right against self-incrimination, as long as they prove that the defendant knows the pass code. The ruling overturns a Superior Court judge's decision in a sex trafficking case that started in a Woburn hotel room.

In 2017, a grand jury indicted Dennis Jones, then 29, of Boston, on a charge of trafficking a person for sexual servitude. When Jones was arrested, police seized his cellphone and obtained a search warrant to look at its contents. But they were unable to execute the search warrant because they did not know the pass code to unlock the phone. Prosecutors then asked a Superior Court judge for an order compelling Jones to turn over the code.

The Superior Court judge rejected the prosecution's argument that turning over the code "would not amount to self incrimination because the defendant's knowledge of the password was already known to the Commonwealth, and was therefore a "foregone conclusion" under the Fifth Amendment" and Article 12, the Massachusetts law protecting individuals from self-incrimination. But on Wednesday, the SJC ruled that the state had met the burden of proof that Jones knew what the code was and sent the case back to Superior Court.

At least one justice raised concerns about the ruling. In a dissenting opinion, Justice Barbabra Lenk called the ruling "the death knell" for protection against self-incrimination in the digital age.

Case Started With A Report Of A Stolen Purse

In December 2016, police responded to a report of a stolen purse at a hotel in Woburn. The victim, identified as Sara in court documents, told them Jones had stolen the purse. She also told them she met Jones on an online dating site, but he eventually convinced her to work as a prostitute in exchange for housing.

Police determined that Sara and another woman used their phones to communicate with Jones on the LG phone at the center of the case. According to court documents, an "examination of Sara's cell phone revealed several communications between her phone and the LG phone related to prostitution, including screenshots of customer communications sent to the LG phone in response to online advertisements seeking to arrange prostitution transactions with Sara; messages from the LG phone explicitly instructing Sara on how to perform sexual acts on customers; messages from the LG phone trying to convince Sara to return to the defendant after she had attempted to flee from him out of fear; and messages from the LG phone apologizing for the defendant's behavior."

Because the phone was found on Jones when he was arrested, and because Sara told police she regularly spoke with Jones by calling and texting the number registered to the LG phone, the SJC ruled that prosecutors had met the burden of proof that Jones knew the password to the phone. Jones had argued that the phone was used by other people and records show that he and the phone were, at times, in different locations.

"That multiple people may have used the LG phone and therefore may know its password does not disprove the defendant's knowledge of the password; exclusive control of the phone is not required. This is especially so in light of Sara's characterization of the LG phone as the defendant's business phone that was used by both the defendant and a female associate to arrange and direct prostitution transactions -- a characterization that was corroborated by the record," the SJC wrote.

Lenk's Dissent

The question appears to be headed to the U.S. Supreme Court, as law enforcement increasingly relies on digital communication to build cases against criminal defendants.

In a dissenting opinion to Wednesday's ruling, Justice Barbara Lenk suggested the standards used in this and similar cases stem from cases involving paper documents. She noted that "In fact, art. 12 provides that no subject shall be compelled to 'furnish evidence against himself'," and that when U.S. Appeals Courts have made rulings in similar cases, they have required prosecutors to also show that incriminating files are stored on the device.

"The court's decision today sounds the death knell for a constitutional protection against compelled self incrimination in the digital age," Lenk wrote. After today's decision, before the government may order an individual to provide it with unencrypted access to a trove of potential incriminating and highly personal data on an electronic device, all that the government must demonstrate is that the accused knows the device's passcode. This is not a difficult endeavor, and in my judgment, the Fifth Amendment and art. 12 demand more."

Never miss another local news story: Get free local news alerts right to your inbox.

Dave Copeland can be reached at dave.copeland@patch.com or by calling 617-433-7851. Follow him on Twitter (@CopeWrites) and Facebook (/copewrites).