Commonwealth v. Davis
176 A.3d 869
| Pa. Super. Ct. | 2017Background
- Law enforcement executed a search warrant after tracing peer-to-peer eMule/eDonkey file-sharing activity that downloaded child-pornography videos to an IP address associated with Davis.
- Officers seized Davis’s sole computer (HP Envy 700) which was encrypted with TrueCrypt and required a 64-character password to boot; POAG forensic examiners could not access its contents.
- Davis repeatedly refused to provide the password and made statements implying illicit material was on the machine and that he was the sole user.
- Commonwealth moved pretrial to compel Davis to disclose the password. A hearing produced testimony establishing the link between the IP activity and Davis’s computer and that the device required the password to access files.
- The trial court granted the motion, concluding the Fifth Amendment privilege did not apply because disclosure would be a “foregone conclusion.” Davis appealed directly; the Superior Court considered interlocutory appealability and reached the merits.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Davis) | Held |
|---|---|---|---|
| Whether compelling disclosure of the encrypted-computer password is testimonial and protected by the Fifth Amendment | Disclosure is non-testimonial under the foregone-conclusion doctrine because the Commonwealth already knows the device exists, is in Davis’s control, and will be accessible once the password is supplied | Forcing Davis to provide the password forces him to testify to existence/location/contents of files and incriminates him; the Commonwealth does not actually know the precise files on the computer | Court held disclosure is not testimonial; foregone-conclusion doctrine applies and the motion to compel was properly granted |
Key Cases Cited
- Fisher v. United States, 425 U.S. 391 (1976) (establishes foregone-conclusion exception to Fifth Amendment act-of-production privilege)
- Commonwealth v. Gelfgatt, 11 N.E.3d 605 (Mass. 2014) (applies foregone-conclusion framework to compelled decryption/password production)
- United States v. Apple MacPro Computer, 851 F.3d 238 (3d Cir. 2017) (requires government to describe with reasonable particularity the evidence sought when compelling decryption)
- State v. Stahl, 206 So.3d 124 (Fla. Dist. Ct. App. 2016) (holds passcodes/decryption keys can be treated as non-testimonial when government establishes existence, control, and authenticity)