PA Supreme Court: Forcing a Defendant to Reveal Password Violates 5th Amendment
Can the Police Force You to Reveal Your Computer Password in Pennsylvania?
Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Supreme Court decided the case of Commonwealth v. Davis, holding that the government cannot force you to provide the password to your computer without violating the Fifth Amendment even where the government can prove that you knew the password and it was your computer or electronic device. This decision represents a tremendous victory for privacy rights and Fifth Amendment rights and will likely have an impact on cases involving computer-related offenses such as possession of child pornography and even financial crimes. It is, however, important to remember that this decision does not prevent the police from searching your computer with consent or after obtaining a search warrant or from breaking into it themselves if they are able to do so. It also may not apply to federal agents. Nonetheless, you should remember that if the police are asking you for your password, you should ask to speak with a lawyer before giving it to them.
Commonwealth v. Davis
On July 14, 2014, agents of the Office of Attorney General (“OAG”) discovered that a computer at an identified internet protocol (“IP”) address that was registered with Comcast repeatedly utilized a peer-to-peer file sharing network, eMule, to share child pornography. 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 illegal pornography, which was saved to the OAG computer. Based upon its transfer and review of the file, the OAG obtained a court order to compel Comcast to provide subscriber information associated with the IP address. Comcast disclosed that the defendant was the subscriber and had registered to the account to his address.
The OAG then applied for, received, and executed a search warrant at the defendant’s apartment. One of the OAG agents informed the defendant that he was not under arrest, but that the search involved an investigation of child pornography. The defendant was then read his Miranda warnings and waived his Miranda rights. The defendant acknowledged that he was the sole user of a Dell computer. He admitted to having prior illegal pornography convictions, but denied the computer contained any illegal pornographic images. The defendant then declined to answer additional questions without a lawyer. Subsequent examination of the computer revealed that the hard drive had been “wiped,” which resulted in the removing of data entirely or rendering it unreadable. Prosecutors did not file charges at this time.
Some time later, a different OAG agent identified a different illegal video that was shared with a different IP address utilizing the eMule server. Another administrative subpoena was sent to Comcast regarding this IP address. Again, the results of the subpoena produced the defendant’s name and contact information. On October 20, 2015, the OAG executed another search warrant at the defendant’s residence. At the defendant’s apartment, the agents discovered a single computer, an HP Envy 700 desktop. After being Mirandized, the defendant 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. The defendant gave a statement that he previously watched pornography on the computer, that he believed to be legal; he previously had 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. The defendant was then subsequently arrested.
While in transit to his arraignment, the defendant spoke openly about watching various pornographic movies, indicating that he particularly liked watching 10, 11, 12, and 13-year olds. An OAG agent then requested that the defendant then provide him with the password to the computer and the defendant 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 [expletive] way I’m going to give it to you.” While in the holding cell, the agents continued to inquire about the password, but the defendant would not tell them it.
The defendant was subsequently charged with two counts of disseminating child pornography and two counts of criminal use of a communication facility. On December 17, 2015, the Commonwealth filed a pre-trial motion to compel the defendant to divulge the computer password. The defendant responded by invoking his right against self-incrimination. A hearing was held, and the trial court granted the Commonwealth’s motion to compel. Specifically, the trial court relied upon the “foregone conclusion” exception to the Fifth Amendment privilege against self-incrimination and ordered the defendant to supply the Commonwealth with any passwords used to access the computer within 30 days. The defendant filed an interlocutory appeal.
The Superior Court’s Decision
The Superior Court affirmed the trial court’s decision. 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. The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court, and the Court agreed to hear the case. The question for the Pennsylvania Supreme Court was: “May [the defendant] 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, Section 9 of the Pennsylvania Constitution?”
What is the Fifth Amendment?
The Fifth Amendment of the United States Constitution provides that “no person...shall be compelled in any criminal case to be a witness against himself.” This privilege not only applies to a defendant in a criminal trial, but in any proceeding, civil or criminal, formal or informal, where the answers might incriminate the speaker in future criminal proceedings. Appellate courts have held that the privilege does not protect a suspect from being compelled to produce “real” or physical evidence. Thus, if the government knows that you have paperwork in your house that could implicate you in financial crimes, the government may still be able to compel you to produce that paperwork despite the fact that producing it incriminates you.
Instead, the privilege only protects an accused from being compelled to testify against himself, or otherwise provide the government with evidence that is testimonial or communicative in nature. To invoke the Fifth Amendment privilege against the forced provision of information, a defendant must show (1) that the evidence is self-incriminating; 2) the evidence is compelled; and 3) the evidence is testimonial in nature. Returning to the paperwork example, the government may not be able to compel you to produce paperwork that it does not really know about because the act of production admits that the paperwork is yours and therefore is testimonial.
The Pennsylvania Supreme Court’s Decision
The Pennsylvania Supreme Court reversed the lower courts’ rulings and held that a defendant cannot be forced to provide his password when he asserts his Fifth Amendment rights. Specifically, the Pennsylvania Supreme Court found that the disclosure of a password is testimonial in nature and thus is entitled to Fifth Amendment protections.
In its decision, the Court made a distinction between physical production and testimonial production. Specifically, when the government compels a physical act, such production is not testimonial and the Fifth Amendment protections do not apply. However, an act of production may be testimonial when the act expresses some explicit or implicit statement of the fact that certain materials exist, are in the defendant’s custody or control, or are authentic. The crux of whether an act of production is testimonial is whether the government is forcing the defendant to use the “contents of his own mind” in explicitly or implicitly communicating a fact. Further, the Court held that the “foregone conclusion” exception as articulated by the United States Supreme Court did not apply to passwords and therefore was not applicable to the instant case. As such, the defendant will not be forced to provide the Commonwealth with his password, and they will not be able to use that information against him in his trial unless they can break into the computer on their own.
Should I give the police my password if they ask for it?
It is extremely important to remember that this case dealt with the police asking for a password after a court had ordered the defendant to provide it. In any other circumstance, it would be clear that the defendant did not have to give the police his password or speak with them at all. Instead, if you are under investigation or facing charges and police are asking you questions or asking for passwords, you should immediately ask to speak with an attorney prior to making a statement or helping them access your electronic devices.
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Criminal Defense Lawyers Demetra Mehta and Zak Goldstein
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, VUFA, Possession with the Intent to Deliver, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
