Defendant argued divulging PIN would violate right against self-incrimination
By Eric T. Berkman
BridgeTower Media Newswires
BOSTON, MA - The commonwealth could not compel an accused sex trafficker to provide the PIN number to a cellphone police seized from him when he was arrested, a Superior Court judge has decided.
Woburn police arrested defendant Dennis Jones after receiving a call from a woman he had allegedly pressured into prostitution. According to the woman, the defendant had been using the phone in question to peddle her services through internet ads listing its number as the contact. Despite receiving a warrant to search the phone, the police could not actually conduct the search without the PIN.
The defendant, who made no statements about his ownership or control of the phone, asserted that the commonwealth had not shown with reasonable particularity that he had either the PIN or access to the phone's contents. Thus, the defendant contended, making him divulge the PIN would violate his right against self-incrimination.
Judge Peter B. Krupp agreed.
"The mere fact of possession [of a phone] does not mean that the police know that the phone belongs to the individual arrested, or that the individual knows the decryption code to unlock any locked features on the phone," Krupp wrote, denying the commonwealth's motion to compel production of the PIN. "In seeking to compel Mr. Jones to provide the PIN for the LG Phone, the Commonwealth is asking Mr. Jones to admit that he owns and/or controls the LG Phone, a fact the Commonwealth believes to be true, but does not know, and has been unable to establish independently."
The nine-page decision is Commonwealth v. Jones.
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Distinguishable cases
Defense counsel George F. Ohlson Jr. of Stoneham said he hopes, based on Krupp's ruling, that the Supreme Judicial Court's 2014 decision in Commonwealth v. Gelfgatt is limited to its facts.
The SJC in Gelfgatt ruled that, under the "foregone conclusion" exception to the Fifth Amendment, the commonwealth could compel Marblehead attorney Leon Gelfgatt, to decrypt computers police had seized from his home. Gelfgatt had been accused of bilking homeowners through a fraudulent mortgage scheme.
Under the foregone conclusion exception, an act of production is not considered testimonial communication for self-incrimination purposes if the government already knows the facts being conveyed.
The SJC noted that Gelfgatt had previously admitted to investigators that the computers were his, they were encrypted, and he could decrypt them if he wanted.
While the SJC conceded that Gelfgatt might be admitting the computers were his by providing the decryption key, the justices emphasized that the commonwealth already knew they were his and thus the "foregone conclusion" exception applied.
"Since my client didn't make any statements, I was able to distinguish my case [from Gelfgatt]," Ohlson said. "In the future, defense attorneys should try to argue that Gelfgatt doesn't apply to their cases if their clients didn't make any statements."
Boston attorney Stanley D. Helinski, who represented the defendant in Gelfgatt, said the commonwealth has been touting that case as a significant victory for the last three years.
"But this decision throws it back in their face and says, 'This is not a victory for you. In fact, it's a defeat,'" Helinski said. "The SJC very specifically said the foregone conclusion exception [to the Fifth Amendment] applied because [Gelfgatt] had already coughed up the [incriminating] information. But if it's not coughed up, now you have a Fifth Amendment violation."
Jessie J. Rossman, a staff attorney at the Massachusetts chapter of the American Civil Liberties Union and co-author of an amicus brief in Gelfgatt, said the ruling in Jones shows that the test for the foregone conclusion exception has teeth.
"Gelfgatt reaffirmed the exception and concluded the test was met in that case, but it didn't gut what the test required," she said. "In this case, the Superior Court took the SJC at its word, applied the test as the SJC said it should be applied, and when applied to a different set of acts showed it still would provide that protection."
Vikas S. Dhar, a criminal defense attorney in Charlestown, agreed, finding it noteworthy that while the alleged victim's statements to police may have been enough to show the information contained on the phone existed and was authentic, they were not enough to show ownership.
Dhar said the government needs explicit, provable knowledge of all three prongs of the testimonial test - existence, authenticity and ownership - in order to meet the foregone conclusion exception.
"Therefore, defense counsel should pick the weakest one or two prongs of the government's argument and present a direct counter-argument to the validity and reliability of the evidence used to prove those prongs," he said.
The Middlesex County District Attorney's Office, which is handling the prosecution, declined to comment.
But Blake J. Rubin of Worcester, who spent more than 15 years as a prosecutor before entering private practice, said he could understand why the state would push so hard to obtain the PIN, particularly given the credibility issues that alleged sex-trafficking victims commonly present.
"Often times the alleged victims are drug-addicted, which can create questions as to the reliability of their memory," Rubin said. "By trying to back-door the defendant into giving them the PIN to the phone, the commonwealth is strengthening the case that this man was in possession of the phone [used to conduct the trafficking], which is a significant portion of the case. Without that confession, they only have the words of the victim, who, by the commonwealth's own admission, was of questionable credibility."
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Alleged trafficking
On Dec. 20, 2016, Woburn police received a call reporting a stolen purse at the Red Roof Inn in Woburn.
When police arrived, the caller, Vanessa Fortin, reported that the defendant had stolen her purse and that he had been transporting her to various locations to engage in prostitution. She also told police that the defendant pressured her into prostitution in return for housing and had been using a cellphone with the number 978-478-7119 to arrange her encounters.
Fortin further told police of internet advertisements offering her services as an "escort" and listing the 7119 number as a contact. She did not, however, describe the phone's characteristics or say she saw the defendant physically accessing it or entering a PIN into it.
When police examined Fortin's own phone, they observed communications from the 7119 number that related to sex-trafficking activities, including screenshots of customers responding to the internet ads and incriminating messages from a contact named "Dennis" associated with the number.
When police arrested the defendant the next day, they recovered two phones, including the LG phone at issue in the case. After seizing the LG phone, an officer dialed the 7119 number and observed it receiving the call. Verizon Wireless later produced records indicating that there was no name associated with the number but that it was registered to an address near the defendant's.
The defendant made no statements about his ownership or control of the LG phone, its contents, or whether he knew the access code to the phone. He ultimately was charged with sex trafficking.
Meanwhile, police received a warrant to search the phone. However, they could not execute the search because they needed a PIN to view the phone's contents.
The commonwealth moved to compel the defendant to provide the PIN, which he opposed on self-incrimination grounds.
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No reasonable particularity
Krupp found that unlike Gelfgatt, in which the defendant admitted to encrypting and being able to decrypt his computer, the commonwealth in Jones could not show with reasonable particularity that the defendant actually possessed the PIN for the phone in question or could access its contents.
Instead, the commonwealth relied on statements from Fortin, who never described the physical characteristics of the phone in a way that suggested she had seen the defendant use it or enter a PIN into it, the judge said.
In fact, Krupp continued, the commonwealth was tacitly acknowledging that Fortin might have credibility issues, since it had indicated in its search warrant affidavit that it sought the phone's contents to "corroborate or fail to corroborate" key aspects of her statement.
"The fact that the LG Phone was found on Mr. Jones' person at the time of his arrest is notable and helpful to the Commonwealth, but insufficient," Krupp said.
Without further proof that the defendant had access to the phone's contents, he continued, the foregone conclusion exception did not apply and the motion to compel should be denied.
Published: Fri, Aug 18, 2017
