Opinion
Docket No. 15-2389
10-22-2015
STATE OF MAINE v. MARQUISE TRANT
STATE OF MAINE
CUMBERLAND, ss. UNIFIED CRIMINAL DOCKET PORTLAND ORDER ON STATE'S MOTION TO COMPEL PRODUCTION OF CELLPHONE PASSCODES
The Grand Jury has indicted Marquise Trant with two counts of Aggravated Trafficking in Scheduled Drugs. (Class A). The State has also filed a request for Criminal Forfeiture of U.S. currency. On April 9, 2015 and again on April 14, 2015 the State orchestrated two controlled buys through a confidential informant. On both occasions the State alleges that Mr. Trant sold crack cocaine to the confidential informant. Based on these two buys, the Maine Drug Enforcement Agency arrested Mr. Trant on April 27, 2015. When he was arrested, the police seized two cell phones, an iPhone 4 and iPhone 6. The State obtained a search warrant authorizing a search of the seized cellphones for "[e]lectronically stored information including phone numbers, names, text messages, voice recordings, photographs, video clips, date and time stamps, and other electronic information; all of which may be contraband and evidence of the offenses of possession, furnishing, and/or trafficking scheduled drugs which are seizable pursuant to Maine Rule of Criminal Procedure 41 and/or Maine Rule of Civil Procedure 80I."
The State's Drug Enforcement Agency reported on April 30, 2015 that it has been unable to execute the search on the seized phones because they are locked. See Report of Eric Pfeffer at ¶1 ("In order to complete the part of the investigation I would need the pin/passcode/pattern to unlock the above items. I'm requesting the owners of each device be compelled to release their pin/passcode/pattern to complete this portion of the investigation"). Accordingly, by motion filed June 11, 2015, the State "asks that this Court compel the Defendant to produce the passcodes for each phone." Subsequent to filing its motion, the State revised its position to indicate that it does not need a court order requiring Defendant to release his passcode, but rather seeks only that the Court compel the Defendant to himself insert the passcodes so that the State may gain access to the phones' contents.
The court held a non-testimonial hearing on the State's Motion to Compel on June 26, 2015. Following a conference call with counsel, the Court scheduled an evidentiary hearing on the State's motion to compel on September 29, 2015. Attorney Devens Hamlen appeared on behalf of Defendant. Assistant Attorney General Lea-Anne Sutton appeared on behalf of the State. The court heard testimony from the arresting officer, Detective Bradley Rogers, and from Eric Pfeffer, as well as extensive oral argument.
The court initially scheduled the hearing on August 11, 2015, but continued the matter at Defendant's request to allow him to have new counsel appointed.
At hearing the State's witness testified that the State of Maine does not have the technology required to access the information on either phone without Defendant's cooperation. The State indicated that there is a federal facility in Boston that can access encrypted information on cellphones, but only by destroying the phones, adding that in any event that facility is designated for homeland security purposes, not drug investigations. The State had initially thought that one of the phones was accessible by fingerprint, but has since determined that both phones are password, not fingerprint, protected. The State also acknowledges that when it first seized the phones there may have been a window of time when it could have accessed the information stored on the phones, but decided to shut the phones down immediately after they were seized to avoid any possibility that Defendant might remotely delete or edit their contents.
Having considered the facts adduced at hearing, counsel's oral argument, Defendant's Objection to State's Motion to Compel, filed September 29, 2015, and the State's Response to Defendant's Objection, filed October 5, 2015, the court concludes as follows.
The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend V. See also Me. Const. art. I, § 6 ("the accused ... shall not be compelled to furnish or give evidence against himself). It is well established that the constitutional right against self-incrimination is implicated only where there is compulsion of an incriminating testimonial communication. See, e.g., United States v. Doe (In re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335, 1341 (11th Cir. 2012) ("An individual must show three things to fall within the ambit of the Fifth Amendment: 1) compulsion, 2) a testimonial communication or act, and 3) incrimination"); United States v. Authement, 607 F.2d 1129, 1131 (5 Cir, 1979) (same). The State argues that its pending motion does not implicate Defendant's Fifth Amendment rights on the ground that "production of the passcode is not testimonial." See Motion to Compel Passcode. The court is not persuaded by the State's argument on this point.
The State's motion presents an issue of first impression in Maine. Moreover, despite the ubiquitous presence of cellphones today, only a few reported cases address Fifth Amendment concerns with respect to cellphone passwords. See generally Marjorie A. Shields, Annotation, Fifth Amendment Privilege Against Self-incrimination as Applied to Compelled Disclosure of Password or Production of Otherwise Encrypted Electronically Stored Data, 84 A.L.R. 6th 251 (2015).
It follows from U.S. Supreme Court precedent that an "act of production itself qualifies as testimonial if conceding the existence, possession and control, and authenticity of the documents tend[s] to incriminate." United States v. Doe, supra, 670 F.3d at 1343 (citing Fisher v. United States, 425 U.S. 391, 410 (1976)). While a defendant may be compelled to submit to fingerprinting, photography, or the taking of measurements, and may be compelled to provide a blood sample or a handwriting or voice exemplar, forcing a defendant to produce a passcode is distinguishable, as a passcode is not akin to physical characteristic evidence, but rather is the product of mental processes. See, e.g., id. at 1345 ("The Fifth Amendment privilege is not triggered where the Government merely compels some physical act, ie., where the individual is not called upon to make use of the contents of his or her mind"); Commonwealth v. Baust, 89 Va. Cir. 267, 271 ("Unlike the production of physical characteristic evidence, such as a fingerprint, the production of a password forces the Defendant to 'disclose the contents of his own mind'").
The State attempts to avoid the testimonial hurdle by suggesting that it is not interested in having Defendant disclose the passcode to them, but rather simply seeks a court order directing Defendant to open the phones so that the State may gain access to his stored information, an act that the State asserts is essentially physical. The court does not agree that in this case the Fifth Amendment issue may be avoided by requiring Defendant to himself open the phones. At its core, the privilege against self-incrimination "reflects our fierce unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt." Pennsylvania v. Muniz, 496 U.S. 582, 596 (1990). "It is evident that a suspect is 'compelled to be a witness against himself at least whenever he must face the modern-day analog of the historic trilemma -- either during a criminal trial where the a sworn witness faces the identical three choices, or during custodial interrogation, where . . . the choices are analogous and hence raise similar concerns." Id. The State is asking the court to compel Defendant to give the State access to his phones, and thus Defendant is presented with the choice of acknowledging either that he indeed can access them (thus potentially incriminating himself), or lying about his inability to do so. If the court were to issue the order sought by the State, and Defendant were to fail (or were unable) to cooperate, Defendant would be subject to contempt proceedings. Accordingly, the Court does not agree that the information sought by the State is non-testimonial.
The Court recognizes that the line between testimonial and non-testimonial is very fine, and that application of Fifth Amendment jurisprudence produces what may appear to many to be an absurd result, whereby suspects who use a four-digit password to protect information on their electronic devices are given full sanctuary, and suspects who use their fingerprint to protect information are given no sanctuary. Given the daunting task of reconciling Fifth Amendment case-law (and the values underlying that jurisprudence) with the enormous challenges posed for law enforcement by modern encryption technology, resolution of the issues posed by password-protected cellphones may need to await consideration by the U.S. Supreme Court. --------
Even though a passcode is a product of one's mind, and thus testimonial in nature, compelling production of a passcode does not offend the Fifth Amendment provided that the elements of the "foregone conclusion" doctrine are met. "The 'foregone conclusion' exception to the Fifth Amendment privilege against self-incrimination provides that an act of production does not involve testimonial communication where the facts conveyed are" already known to the government, such that the individual 'add little or nothing to the sum total of the Government's information.'" Commonwealth v. Gelfgatt, 11 N.E.2d 605, 614 (Mass. 2014) (citing Fisher v. United States, 425 U.S. 391, 411 (1976)).
In order for the foregone conclusion to apply, the State must establish that it already has knowledge of 1) the existence of the evidence demanded; 2) the possession or control of that evidence by the defendant; and 3) the authenticity of the evidence. Id. Applying this analysis to the facts of this matter, the court finds that the State has failed to establish that production of the passcode would "add little or nothing to the sum total of the [State]'s information." The State knows that the iPhones exist and that they are passcode-protected. The State knows that the iPhones were found on Defendant's person, and that one of the phones belongs to Defendant's mother, who resides in Florida. The State knows that Defendant contacted the State's confidential informants by text message two weeks before his arrest, but does not know that the phones seized were the devices used by Defendant to send the text messages. The State knows that when Defendant was asked to give the State his passcodes he did not indicate that he did not know them; rather, Defendant asked that he be allowed to talk to his lawyer before responding to the State's request. Thus, while it is highly likely that Defendant knows the passcodes, the State does not know that Defendant has or had control over the iPhones. Furthermore, the State acknowledges that it does not know what information is stored on the phones. Accordingly, compelling either production of the passcodes or Defendant's unlocking of the phones for the State's purposes would incriminate Defendant and authenticate whatever evidence is ultimately recovered.
The State's relative lack of preexisting knowledge distinguishes this matter from those cases in which courts have found the foregone conclusion exception applicable. See, e.g., Commonwealth v. Gelfgatt, supra, 11 N.E.3d at 608 (holding that defendant could be compelled to provide his password to seized encrypted digital evidence "where the defendant's compelled decryption would not communicate facts of a testimonial nature to the Commonwealth beyond what the defendant already had admitted to investigators") (emphasis added); Baust, supra, 89 Va. Cir. At 271 ("the passcode is not a foregone conclusion because it is not known outside of Defendant's mind. Unlike a document or tangible thing, such as an unencrypted copy of the footage itself, if the password was a foregone conclusion, the Commonwealth would not need to compel Defendant to produce it because they would already know it"). As the 11th Circuit noted in Doe, supra, 670 F.3d at 1347-49, the foregone conclusion does not apply where the State "has failed to show any basis, let alone shown a basis with reasonable particularity, for its belief that encrypted files exist on the [iPhones], that [Defendant] had access to those files, or that he is capable of decrypting the files."
As stated by the U.S. Supreme Court, whether the production of evidence in response to a governmental demand is testimonial for Fifth Amendment purposes "depend[s] on the facts and circumstances of [each] particular case." Fisher v. United States, 425 U.S. 757 (1966); Doe v. United States, 487 U.S., 201, 214-15 (1988). Based on the facts and circumstances of this particular case, given the dearth of preexisting knowledge possessed by the State, the court finds that the foregone conclusion exception does not apply in these circumstances, and accordingly finds that compelling Defendant to divulge the contents of his mind -- either by compelling him to surrender the passcodes or compelling him to himself open the phones -- would violate his privilege against self-incrimination protected by the Federal and Maine Constitutions. Accordingly, it is hereby ORDERED that the State's Motion to Compel Passcodes is DENIED. DATED: 10/22/2015
/s/_________
E. Mary Kelly
Maine District Court Judge MOTION TO COMPEL PASSCODE
NOW COMES the Attorney for the State and moves this Court to compel the Defendant in this case to produce the passcodes to the telephone seized from him when he was arrested for the charges of Aggravated Trafficking in Sched. W Drugs. SA Brad Rogers of the Maine Drug Enforcement Agency has obtained a search warrant from a judge, who authorized such search because there is probable cause to search said phones. However, the State is unable to execute this search warrant because the phones are protected by passcodes that cannot be unlocked. Please see attached affidavit. Wherefore, in order to execute this search warrant, the State asks that this Court compel the Defendant to produce the passcodes for each phone. The State does not need to know what the passcode is. The State asserts that production of the passcode is not testimonial. The Defendant objects to producing the passcode. The State asks that this matter be set for a hearing on this issue. Dated: June 6, 2015
/s/_________
Lea-Anne Sutton
Assistant Attorney General
Maine Bar Number 8186
ORDER
Upon the State's Motion, it is hereby ORDERED that the Defendant be compelled to produce the passcode for each phone seized from him, so that law enforcement can execute a judicially authorized search warrant in this case. Dated: __________
/s/_________
Justice, Superior Court
Maine Drug Enforcement Agency Continuation Report
Case # DE-2015-0945 Author ICSO Pfeffer, Eric R Date of Report 04/30/2015
DETAILS OF INVESTIGATION:
1. Currently conducting a search warrant on phones seized as evidence by Special Agent Rogers for MDEA case DE-2015-0945, warrant sign by the Honorable Judge Powers. I am unable to unlock the following phones for examination. Each phone listed below has its owners name listed.
a. iPhone 6 cellular phone, model A1549, gold and white in color, JMEI# 356991067963108, found on MARQUISE TRANT's person (DOB 11/09/1988)In order to complete the part of the investigation I would need the pin/passcode/pattern to unlock the above items. I'm requesting the owners of each device be compelled to release their pin/passcode/pattern to complete this portion of the investigation. 2. I am using the UFED Touch made by Cellebrite to perform a Physical Extraction of the above Cellular devices; which requires the devices to be unlocked. I am certified Cellebrite Operator.
b. iPhone 4 cellular phone, model A1387, white in color, IC# 579C-E2430A, found on MARQUISE TRANT's person (DOB 11/09/1988)
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/s/_________ AUTHOR'S SIGNATURL __________ DATE /s/_________ REVIEWER'S SIGNATURE __________ DATE