Foregone Conclusion Doctrine Allows Government to Make Criminal Defendant Disclose Computer Password

Can The Police Make You Turn Over Your Computer Password?

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Davis, holding that the trial court properly ordered the defendant in a child pornography possession case to provide police with his computer password. Although the Third Circuit previously allowed prosecutors to obtain a similar order in a federal prosecution, Pennsylvania courts had not yet addressed the issue. Under this decision, prosecutors may now compel a defendant to produce the password to a computer or cell phone if the prosecution can satisfy the “foregone conclusion doctrine.”

In Davis, the defendant was charged with possession of child pornography and related offenses. Officers testified that they were able to download child pornography from the defendant using the eMule peer-to-peer file sharing network. As the officers were downloading the materials, they were able to determine the IP address of the computer that was uploading it. The officers then traced the IP address to the defendant’s internet account and house. They obtained a search warrant and executed the warrant at the defendant’s home. During the search, they seized a desktop computer which was protected by a special encryption software. The officers were unable to access the computer due to the encryption, and the defendant refused to provide them with the password.

The defendant did, however, make a number of inculpatory statements. He confirmed that he lived alone and that the computer was his. He told police he had prior arrests for child pornography, and he told them that he did not understand why it was illegal. He also stated that he liked 10, 11, 12, and 13 year olds, and he told police that the password was sixty-four characters and that he would not turn it over because “We both know what’s on there. It’s only going to hurt me.” The defendant then told the agents that he could not remember the password and that although the drive was encrypted, the agents already knew what was on the hard drive.

After the defendant was charged with two counts of distribution of child pornography and the criminal use of a communication facility, the Commonwealth filed a motion to compel the defendant to produce the password to the computer. The trial court granted the motion, and the defendant filed an interlocutory appeal to the Superior Court. Although a defendant may not ordinarily appeal a ruling on a pre-trial motion, the Superior Court permitted the defendant to appeal in this case under a limited exception to that general rule.

The Foregone Conclusion Doctrine

The Superior Court reached the merits of the appeal and concluded that the trial court properly ordered the defendant to produce the password under the foregone conclusion doctrine. The foregone conclusion doctrine is a limited exception to the general Fifth Amendment protection against self-incrimination. Ordinarily, a court may not compel a defendant to testify or say something that could incriminate him or her. For the Fifth Amendment to apply, however, the communication must be testimonial, incriminating, and compelled. Under the foregone conclusion doctrine, however, the courts have ruled that requiring a defendant to produce a password under certain circumstances is not testimonial because the government already knows that the defendant has the password. Thus, if the prosecution can show that the following three factors  are present, a defendant may be compelled to produce a passcode to a phone or computer. The factors are:

  1. The Government has knowledge of the existence of the evidence demanded,
  2. The defendant possessed or controlled the evidence, and
  3. The evidence is authentic.

The Government also must be able to describe with reasonable particularity the documents or evidence it seeks to compel.

Here, the Superior Court found that the foregone conclusion doctrine applied because it would not be testimonial for the defendant to give up the password. The Court found the police testimony showed that based on the investigation and the statements of the defendant, the Commonwealth knew the passcode existed, that it was within the control of the defendant, and that it was authentic. Further, based on the defendant’s incriminating statements, it was very likely that the computer would contain illegal child pornography. Therefore, the Court ruled that the trial court properly ordered the defendant to produce the password.

Fifth Amendment Implications of the Foregone Conclusion Doctrine

Clearly, the foregone conclusion doctrine drastically reduces the protections provided by the Fifth Amendment. By making a relatively limited showing that the defendant probably knows the password and the computer probably has illegal contraband on it, the Commonwealth may now essentially force a defendant to confess in that the act of providing the password further establishes that the defendant owns the computer and its contents.

This case also shows the importance of exercising your Fifth Amendment rights immediately when the police first show up and start asking questions. If the defendant had not admitted ownership of the computer, told police that he knew the password, and implied that police were correct in their assumption that the computer contained child pornography, the government may not have been able to satisfy the requirements of the foregone conclusion doctrine. It is absolutely critical that any suspect in a crime speak with an experienced criminal defense attorney before talking to the police as it is often very difficult for prosecutors to prove these types of cases without a confession. 

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