On Monday, the Appeals Court of Massachusetts issued a decision, In the Matter of a Grand Jury Investigation, No. 16-P-215, 2017 Mass. App. LEXIS 158 (Mass. App. Ct. Dec. 11. 2017), in which it affirmed a decision of a lower court holding a defendant in contempt for failing to enter his passcode into his iPhone. This decision comes on the heels of the decision by the Pennsylvania Superior Court in Commonwealth v. Davis, 2017 Pa. Super. LEXIS 968 (Pa. Super. Ct. Nov. 30, 2017) to affirm the granting of a motion to compel a criminal defendant to provide the password for his TrueCrypt encrypted computer. See the Tip of the Night for November 30, 2017.
The grand jury investigation concerned an alleged assault and battery on two children. A court issued a warrant authorizing a search of the contents of his iPhone. As in Davis, a key question was whether or not providing the passcode could be considered a testimonial statement for the purposes of the Fifth Amendment. Judge Amy Blake cited the same test for the foregone conclusion exception to the Fifth Amendment used in Davis, which was given by the Supreme Court of the United States in, Fisher v. United States, 425 U.S. 391 (1976). There will be an exception if the evidence provided adds little or nothing to the sum total of the government's information, and:
1. the existence of the evidence demanded has been proven;
2. the defendant is in possession of the evidence; and
3. the authenticity of the evidence has been established.
The Appeals Court found the government met this test because it demonstrated knowledge of the defendant's ownership and control of the iPhone; the fact that it was encrypted and that a passcode existed; and crucially - just as in the Davis case - because it knew the iPhone contained files relevant to the assault and battery investigation. An affidavit was submitted supporting the search warrant gave probable cause that the iPhone held evidence regarding the alleged assault and battery.