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

Can The Police Make You Turn Over Your Computer Password?

Note: this article refers to a Superior Court case which has been overruled by the Pennsylvania Supreme Court. Click here to learn more

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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PA Courts Adopt Public Servant Exception to Warrant Requirement

The Public Servant Exception to the Warrant Requirement

Zak T. Goldstein, Esq. - Criminal Defense Attorney

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Livingstone, holding that although Pennsylvania has a community caretaker and public safety exception to the warrant requirement, police officers must be able to provide specific and articulable facts for why a person may be in need of assistance prior to conducting an investigative detention. In other words, police officers may stop a person if they believe the person is in distress or that there is an emergency situation, but the police must be able to provide specific reasons for why they believe an emergency situation exists, they may not conduct a stop as a pretext to investigate criminal activity, and the stop may only as intrusive as the circumstances require. 

Commonwealth v. Livingstone

In Livingstone, a Pennsylvania State Trooper in Erie County saw the defendant’s vehicle pulled over on the shoulder of the highway. The engine was running, but the hazard lights were not activated. The Trooper activated his emergency lights, and with his passenger side window down, pulled alongside the stopped vehicle. The Trooper then began to ask the defendant some questions, and he eventually reached the conclusion that she was under the influence of a controlled substance. Accordingly, he arrested the defendant and charged her with DUI.

Motion to Suppress

The defendant subsequently filed a pre-trial motion to suppress the results of the blood test, arguing that she was stopped without reasonable suspicion or probable cause when the Trooper pulled up next to her and activated his emergency lights. The trial court denied the motion and found that after the Trooper saw the vehicle on the side of the interstate, the Trooper had a duty to determine if the defendant was in need of help. The trial court also found that the Trooper engaged only in a “mere encounter,” meaning he did not need reasonable suspicion or probable cause. With the motion to suppress denied, the court found the defendant guilty of DUI and sentenced her to a period of house arrest.

The defendant appealed. After the Superior Court affirmed the trial court’s denial of the motion to suppress, the Pennsylvania Supreme Court granted review. On appeal, the Supreme Court recognized that the case presented two distinct issues: first, was the defendant seized when the Trooper pulled up next to her with his emergency lights on, and second, if the defendant was seized, was the Trooper justified in stopping her.

The Court found that the first issue was relatively simple; the defendant was seized when a marked State Police vehicle pulled up next to her, rolled the window down, and activated its overhead lights. The Court emphasized both that official driver’s license materials provided by PennDOT instruct motorists that they should not leave when a police officer activates his or her emergency lights and that Pennsylvania law makes it a felony to flee from a police officer after the officer signals for the motorist to stop. Because no reasonable person would feel free to leave when a State Police Trooper activates his or her emergency lights, the defendant was seized when the Trooper pulled up next to her and activated the lights.

Second, the Court found that the Trooper did not have the legal authority to make the stop because the Trooper lacked sufficient information to determine that the defendant was in need of assistance. Once a court determines that police have seized someone for purposes of the Fourth Amendment, the prosecution generally must show that the police had either reasonable suspicion or probable cause depending on how extensive the stop was. In order to support a Terry stop (“an investigate detention”), the police must have reasonable suspicion. In order to arrest someone, the police must have probable cause to make an arrest.

Here, the Trooper did not have reasonable suspicion or probable cause at the time of the stop because he had no indication that criminal activity was afoot or that a crime had occurred solely from the fact that the defendant had pulled over. However, the Court recognized a “community caretaking doctrine” or public safety exception. The community caretaking doctrine applies in three circumstances. First, there is an emergency aid exception. Second, there is an automobile impoundment/inventory exception, and third, there is a public safety exception. For any of these exceptions to apply, the officer must be acting out of a motivation to render aid or assistance rather than an attempt to investigate criminal activity.

The Public Safety Exception (Public Servant Exception)

Prior to this case, the Pennsylvania Supreme Court had never specifically addressed the public safety exception. The Court recognized that the police do not exist solely to investigate and prevent criminal activity. Instead, they are also charged with ensuring the safety and welfare of the Commonwealth’s citizens. At the same time, the Fourth Amendment requires that police officers not conduct warrantless searches without reasonable suspicion or probable cause. Therefore, the Court sought to employ a test for when police can conduct a seizure of this nature that would both allow the police to help members of the public and protect the privacy rights guaranteed by the Fourth Amendment.

Can The Police Conduct A Stop If They Think Someone Needs Help? 

The Court held that in order for the public servant exception (public safety exception) to apply, the Commonwealth must be able to satisfy three requirements. First, police officers must be able to point to specific, objective, and articulable facts that would suggest to an experienced officer that a citizen is in need of assistance. Further, the Court found that the Trooper in this case could not do so because there were too many reasons why the defendant could have pulled over on the side of the road. The Court noted that the defendant could have needed to look at a map, answer or make a telephone call, send a text message, change an address in a navigation system, clean up a spill, or retrieve something from her purse or the glove compartment. Pulling over to the side of the road to do these types of things should be encouraged.

Second, in order for the exception to apply, the police caretaking action must be independent from the detection, investigation, and acquisition of criminal evidence. This does not mean that an officer must completely ignore the nature of his or her role in law enforcement, but it does mean that the courts must meticulously consider the facts and carefully apply the exception in a manner that mitigates the risk of abuse and ensures that police do not use the exception as a pretext for obtaining evidence without a warrant.

Third, the level of the intrusion must be commensurate with the perceived need for assistance. This requires the suppression court to evaluate the circumstances surrounding the seizure, including but not necessarily limited to, the degree of authority or force displayed, the lengthy of the seizure, and the availability of alternative means of assistance.

Here, the Court found that the Trooper did not have any reason to believe that the defendant needed assistance. He had not received a report that a motorist needed help, he did not observe anything that indicated there was a problem with her vehicle, the weather was fine, and the defendant did not have her hazard lights on. Accordingly, the Court reversed the decision of the trial court and ordered that the blood test and other evidence seized as a result of the illegal stop be suppressed.

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PA Supreme Court: Parole Agents May Frisk You Even If You Are Not On Parole

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Mathis, holding that a parole agent may detain and frisk a non-parolee visitor to the parolee’s home while performing a routine home inspection if the parole agent acts on reasonable suspicion that the visitor is engaged in criminal activity and armed.

Commonwealth v. Mathis - Can a Parole Agent Search Someone Who Is Not On Parole During a Routine Home Visit? 

In Mathis, parole agents conducted a routine check of a parolee’s home which was located in a high crime area in Dauphin County. When they arrived, they immediately recognized the strong odor of marijuana throughout the home. As they walked through the house, they observed the defendant, Mathis, receiving a hair cut from the parolee who they were there to check up on. The parolee identified the parole agents to the defendant, and the agents then questioned the parolee as to why the house smelled like marijuana. The agents also found an ashtray full of marijuana roaches in the front room, but they did not see anyone smoking marijuana. 

While one of the agents questioned the parolee, the other agent monitored Mathis. Mathis repeatedly got up from his chair and walked to the kitchen, apparently checking text messages on his cell phone. The parole agents asked him to stop using the cell phone while they were there because he seemed nervous. They asked him to leave until they finished speaking with the parolee. Mathis began to leave, and as he gathered his belongings, one of the agents noticed that he picked up his jacket as if holding it up to his body like a football or a baby. Mathis appeared to try to put his body in between the agents and the jacket, and he continued to hold it in a strange manner. The agents also noticed a bulge coming from the jacket which was roughly the size and shape of a gun. 

The agents became concerned for their safety, so they asked Mathis if they could pat him down. He refused, but one of the agents reached out and touched the jacket. The agent immediately felt what he believed to be a firearm. They then handcuffed Mathis, patted him down, recovered a bag of marijuana from between his feet, and recovered a handgun from the jacket. Because Mathis was prohibited from possessing a firearm due to his prior criminal record, the agents called the police. The police arrived, recovered the gun, and charged Mathis with gun charges, marijuana charges, and possessing drug paraphernalia.

Motion to Suppress

Mathis filed a pretrial motion to suppress the gun, arguing that the parole agents had no right to search him because he was not on parole. The trial court denied the motion to suppress, found him guilty of drug possession and gun possession, and sentenced him to thirty-two to sixty-four month’s imprisonment. Mathis appealed, and the Superior Court affirmed.

The Pennsylvania Supreme Court reviewed the case and upheld the decision of the Superior Court. The Court concluded that parole agents may conduct a Terry frisk under these circumstances for their own safety. Although parole agents may not act as police officers with respect to non-offenders or private citizens, they do have the right to protect themselves.

Parole agents are required to supervise offenders in part by conducting routine, unannounced home visits, thus risking exposure to a variety of potentially dangerous unknowns. Interactions with non-offenders are often going to occur during home visits, and parole agents have an obligation to make sure that the parolee is not living or associating with people who have been convicted of certain criminal offenses.

Parole agents are also legally classified as “peace officers,” giving them the power to make a lawful arrest upon reasonable suspicion of a felony and the authority to use deadly force to protect themselves and carry firearms. Because a parole agent has the authority to use deadly force for the protection of himself or herself and others, the agent has the authority to prevent the need for deadly force in the first place by conducting a Terry frisk when necessary.

Finally, the Court noted that the purpose of the Terry frisk is not to conduct an investigation or find evidence; instead, it is merely to check for deadly weapons so that the officer can do his or her job without fear of bodily injury. Accordingly, the Supreme Court concluded that a parole agent may conduct a frisk for weapons so long as the agent has reasonable suspicion to do so. Reasonable suspicion requires “specific and articulable facts” that criminal activity is afoot, and the authority to frisk also requires that the officer or agent have reason to believe that the suspect is armed and dangerous. 

There Are Still Limits On Probation and Parole Searches

Unfortunately, the Mathis Court's decision serves to eliminate important privacy rights for anyone who associates with someone who is on state parole. If someone has the bad luck to be present at a parolee's residence when agents show up to conduct an unannounced search, that person will now be at risk of being searched by parole agents despite the fact that they are not even on parole. This is particuclarly true for anyone who lives with someone who is on state parole; that person will now have substantailly reduced privacy rights just by virtue of who they live with. However, some protections remain in that the parole agents are still required to have reasonable suspicion and cannot conduct a search for general investigatory purposes. Therefore, motions to suppress will likely still be brought in many of these cases.

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Feds Limit Definition of Fugitive of Justice and Allow More People with Arrest Warrants to Purchase Firearms

Criminal Defense Lawyer Zak T. Goldstein, Esq.

Both Pennsylvania and United States law make it illegal for a fugitive from justice to purchase or possess a firearm. In order to enforce this prohibition, the FBI maintains a database of people who are ineligible to purchase a firearm that includes people who the FBI believes to have active arrest warrants. Until recently, the ATF and the FBI used different criteria in determining who met the definition of a fugitive from justice. The FBI has traditionally used a broader definition which included anyone with an active arrest warrant. The ATF, however, adopted a more limited reading of the phrase and defined a “fugitive from justice” as a person who both had a warrant for their arrest and traveled to a different state from the state in which the warrant was issued. Thus, the use of the ATF’s definition would result in fewer people being included in the Government’s database of prohibited persons.

Recently, the Department of Justice adopted the ATF’s more limited reading of the term and ordered that the FBI remove anyone who has not crossed state lines from the database. Accordingly, the FBI removed tens of thousands of people with active warrants for their arrest from the database, and those people may now be able to pass a federal background check when attempting to purchase a gun. This also means that those people will no longer be prohibited by federal law from purchasing or possessing a gun unless they meet some other criteria which would lead to a prohibition on firearms ownership.

Although this change in definition will allow many people to successfully purchase a firearm, some will remain ineligible to actually possess a firearm. For example, federal law makes it illegal to sell a gun to someone who is ineligible to possess the gun under the state law in effect at the location of the sale. Pennsylvania law also makes it illegal for a fugitive from justice to possess a gun, and Pennsylvania courts may not decide to follow the same definition as the Justice Department. Pennsylvania appellate courts do not appear to have defined the term fugitive from justice for purposes of the state version of the Uniform Firearms Act, but the courts have suggested that the definition includes the requirement that someone leave another state for purposes of extradition procedures. Further, a governmental agency’s interpretation of a statute is not always binding on the courts, and courts could conclude that fugitive from justice has the broader meaning initially taken by the FBI. Finally, federal law also makes it illegal for a person with pending criminal charges which are punishable by more than a year in prison to possess a firearm.

The change in definitions has resulted in the removal of tens of thousands of people from the FBI’s database, but it does not necessarily mean that all of the people removed are eligible to possess a firearm. This means that if you may have an active arrest warrant, you should speak with an attorney before attempting to purchase a gun even if you have not crossed state lines. You should also speak with an attorney about clearing up the warrant. Likewise, if you are facing federal or state charges alleging that you possessed a gun illegally because you were a fugitive from justice, you should contact a criminal defense lawyer immediately as the government may now have additional difficulty in proving those charges.

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Source: Washington Post