Commonwealth v. Davis, 112019 PASC, 56 MAP 2018

Docket Nº:56 MAP 2018
Opinion Judge:TODD, JUSTICE
Party Name:COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOSEPH J. DAVIS, Appellant
Judge Panel:SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. Chief Justice Saylor and Justices Donohue and Wecht join Justice Baer files a dissenting opinion in which Justice Dougherty and Mundy BAER, JUSTICE Justices Dougherty and Mundy join this dissenting
Case Date:November 20, 2019
Court:Supreme Court of Pennsylvania

COMMONWEALTH OF PENNSYLVANIA, Appellee

v.

JOSEPH J. DAVIS, Appellant

No. 56 MAP 2018

Supreme Court of Pennsylvania

November 20, 2019

ARGUED: May 14, 2019

Appeal from the Order of the Superior Court dated November 30, 2017 at No. 1243 MDA 2016, affirming the Order of the Court of Common Pleas of Luzerne County, Criminal Division, dated June 30, 2016 Nos. CP-40-CR-291-2016 and CP-40-MD-11-2016

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

TODD, JUSTICE

In this appeal by allowance, we consider an issue of first impression: Whether a defendant may be compelled to disclose a password to allow the Commonwealth access to the defendant's lawfully-seized, but encrypted, computer. For the reasons that follow, we find that such compulsion is violative of the Fifth Amendment to the United States Constitution's prohibition against self-incrimination. Thus, we reverse the order of the Superior Court.

On July 14, 2014, agents of the Office of Attorney General ("OAG"), as part of their investigation of the electronic dissemination of child pornography, discovered that a computer at an identified Internet Protocol (IP) address1 registered with Comcast Cable Communications ("Comcast"), repeatedly utilized a peer-to-peer file-sharing network, eMule, to share child pornography. N.T. Hearing, 1/14/16, at 6-8. 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 child pornography, which was saved to the OAG computer. Id. at 5-6. Based upon its transference and review of the file, the OAG obtained a court order to compel Comcast to provide subscriber information associated with the IP address. The information provided by Comcast disclosed the subscriber as Appellant Joseph Davis, as well as his address. Id. at 8-9.

On September 9, 2014, the OAG applied for, received, and executed a search warrant at Appellant's apartment. OAG Special Agent Justin Leri informed Appellant that he was not under arrest, but that the search involved an investigation of child pornography. Id. at 11. Appellant was then read his Miranda warnings and waived his Miranda rights. Id. Appellant acknowledged that he was the sole user of a Dell computer.[2] He admitted to having prior pornography convictions, but denied the computer contained any illegal pornographic images. Appellant then declined to answer additional questions without a lawyer. Id. Later examination of the computer revealed that the hard drive had been "wiped," removing data entirely or rendering it unreadable. Id. at 43-44.

On October 4, 2015, OAG Agent Daniel Block identified a different child pornography video that was shared with a different IP address utilizing the eMule server. An administrative subpoena to Comcast regarding this IP address again produced Appellant's name and contact information. A direct connection was made from OAG computers to this IP address, and one electronic file containing child pornography was transferred to the OAG computer. Id. at 19.

On October 20, 2015, the OAG executed another search warrant at Appellant's apartment based upon this video. At Appellant's apartment, the agents discovered a single computer, an HP Envy 700 desktop. After being Mirandized, Appellant 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, and, thus, not accessible by the public, such as through Wifi. Id. at 26. Appellant offered that only he knew the password to his computer. Id. Appellant also informed the agents, inter alia, that he watched pornography on the computer which he believed was legal; that he had previously 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. Id. at 27-28. The agents arrested Appellant for the eMule distributions and seized his computer. Agent Block asked Appellant for the password to this computer and Appellant refused. Id. at 28. Subsequently, when in transit to his arraignment, Appellant spoke openly about watching various pornographic movies, indicating that he particularly liked watching 10, 11, 12, and 13-year olds. Id. at 30. Agent Block again requested that Appellant provide him with the password to the computer. Appellant 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 f*cking way I'm going to give it to you." Id.

Later, in a holding cell, Agent Leri conversed with Appellant who, inter alia, offered that he believes the "government continuously spies on individuals," and questioned "why it's illegal to . . . view movies in the privacy of [his] own home." Id. at 35. In a later conversation, Agent Leri asked Appellant if he could remember the password. Appellant replied that he could not remember it, and that, even if he could, it would be like "putting a gun to his head and pulling the trigger." Id. at 35-36. In a subsequent visit, when asked again about the password, Appellant offered that "he would die in jail before he could ever remember the password." Id. at 37.

A supervisory agent in computer forensics, Special Agent Braden Cook, testified that a portion of Appellant's HP 700 Envy computer's hard drive was encrypted with a program called TrueCrypt Version 7.1. Id. at 42. The entire hard drive of the computer was encrypted and "there was no data that could be read without opening the TrueCrypt volume." Id. at 46. Agent Cook could only confirm that there was "Windows on the computer and the TrueCrypt," and he had no knowledge of any specific files other than the operating system files. Id. at 50-51.

Appellant was charged with two counts of disseminating child pornography in violation of 18 Pa.C.S. § 6312(c), and two counts of criminal use of a communication facility in violation of 18 Pa.C.S. § 7512(a), which arose from the July 2014 and October 2015 detections.

On December 17, 2015, the Commonwealth filed with the Luzerne County Court of Common Pleas a pre-trial motion to compel Appellant to divulge the password to his HP 700 computer. Appellant responded by invoking his right against self-incrimination. On January 14, 2016, the trial court conducted an evidentiary hearing at which several OAG agents testified, as set forth above, about the investigation supporting the seizure of the computer.

The trial court focused on the question of whether the encryption was testimonial in nature, and, thus, protected by the Fifth Amendment. The trial court opined that "[t]he touchstone of whether an act of production is testimonial is whether the government compels the individual to use 'the contents of his own mind' to explicitly or implicitly communicate some statement of fact." Trial Court Opinion, 6/30/2016, at 8-9 (citation omitted). As part of its analysis, the trial court looked to the "foregone conclusion" exception to the Fifth Amendment privilege against self-incrimination as articulated by the United States Supreme Court in Fisher v. United States, 425 U.S. 391, 409 (1976). The court noted the rationale underlying this doctrine is that an act of production does not involve testimonial communication if the facts conveyed are already known to the government, such that the individual "'adds little or nothing to the sum total of the government's information.'" Trial Court Opinion, 6/30/2016, at 9 (quoting Fisher, 425 U.S. at 409). The trial court offered that for this exception to apply, the government must establish its knowledge of (1) the existence of the evidence demanded; (2) the possession or control of the evidence by the defendant; and (3) the authenticity of the evidence. Id. at 9.

Applying the foregone conclusion exception, the trial court found that, in the case at bar, the computer located in Appellant's residence had hard-wired Internet access only; Appellant admitted it was TrueCrypt encrypted; that he was the only user, and he was the only one who knew the password; Appellant indicated to the agents that "we both know what is on there," and stated that he would "die in prison before giving up the password;" and that the Commonwealth knew with a reasonable degree of certainty that child pornography was on the computer. Id. at 11. Based upon these facts, the trial court determined that the information the Commonwealth sought from Appellant was a foregone conclusion, in that the facts to be conveyed by Appellant's act of production of his password already were known to the government. As, according to the trial court, Appellant's revealing his password would not provide the Commonwealth with any new evidence, and would simply be an act that permitted the Commonwealth to retrieve what was already known to them, the foregone conclusion exception was satisfied. Thus, on June 30, 2016, the trial court granted the Commonwealth's motion and directed Appellant to supply the Commonwealth with any passwords used to access the computer within 30 days. Appellant filed an interlocutory appeal.

A three-judge panel of the Superior Court affirmed. Commonwealth v. Davis, 176 A.3d 869 (Pa. Super. 2017).3 Like the trial court, the Superior Court found that, to qualify for the Fifth Amendment privilege, a communication must be testimonial. The Superior Court observed that the question of whether compelling an individual to provide a digital password was testimonial in nature was an issue of first impression for the court. Building upon the trial court's analysis, the Superior Court explained that the Fifth Amendment right against self-incrimination is not violated...

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