Commonwealth v. Jones (Lawyers Weekly No. 12-095-17)

Docket No. 17-49
Defendant Dennis Lee Jones is charged with trafficking a person for sexual servitude in violation of G.L. c. 265, § 50(a), and deriving support from the earnings of a prostitute in violation of G.L. c. 272, § 7. On June 26, 2017, I held a hearing and took under advisement the Commonwealth’s Motion for an Order Requiring Production of a PIN (Personal Identification Number) Access Code (Docket #14) to unlock a cellular telephone under Commonwealth v. Gelfgatt (“Gelfgatt”), 468 Mass. 512 (2014). The next day, the Commonwealth filed a Motion to Reopen Evidence in Motion Hearing to Compel Defendant to Produce PIN Code for Cellular Telephone Seized Pursuant to Search Warrant or/in the Alternative Request for Reconsideration Upon Denial of Commonwealth’s Motion to Compel (Docket #17)1 seeking to file an affidavit by Woburn Police Sgt. Det. Brian McManus.2 After further hearing on July 19, 2017, the motion to reopen is ALLOWED and the motion to compel is DENIED.
1 To the extent the Commonwealth sought “reconsideration,” it was premature because I had not yet decided the Gelfgatt motion, although the Commonwealth did not know how quickly I might have decided the issue.
2 The documents before me refer to Mr. McManus as Sergeant Detective and also as Detective Sergeant. For consistency, I refer to him herein as “Sgt. Det. McManus.”
I. The Motion to Reopen
The trial court has considerable discretion to determine whether to permit additional evidence after a hearing and even after a motion has been decided. See, e.g., Mass. R. Crim. P. 13(a)(5) (where “substantial justice requires, the judge . . . may permit a pretrial motion which has been heard and denied to be renewed”); Commonwealth v. Pagan, 73 Mass. App. Ct. 369, 374-375 (2008). It is in the interest of substantial justice that the issue presented in the Gelfgatt motion be decided on the most complete and accurate record available. The motion raises an important question about whether the Commonwealth will be able to access potentially relevant information from a cellular telephone believed to belong to defendant. Even if I were to decide the question on the factual record as it existed on June 26, 2017, nothing would prevent the Commonwealth from seeking to renew its motion in the interest of “substantial justice.”
Defendant has not demonstrated that he will be prejudiced if I were to consider the additional information. None of the material additional information was new to the defendant. Defendant has had an opportunity to address the Commonwealth’s additional factual submission both by a responsive factual submission and orally. With Defendant’s Opposition to Commonwealth’s Motion to Re-Open Evidence and/or Motion for Reconsideration (July 18, 2017), defendant filed a series of documents which go beyond the materials previously submitted. At the hearing on July 19, 2017, the Commonwealth presented an affidavit by Det. Mark Shaughnessy, which responded to one of the arguments advanced by defendant and which defendant had the opportunity to address at argument.
I find that defendant has not shown prejudice from the Commonwealth’s late factual submissions and that substantial justice compels me to consider the Gelfgatt motion on the fullest possible record. I therefore allow the Commonwealth’s motion to reopen and will consider the
new affidavit from Sgt. Det. McManus, the additional factual materials attached to defendant’s opposition to the motion to reopen, and the affidavit of Det. Shaughnessy filed on July 19, 2017.
II. The Motion to Compel under Gelfgatt
A. Factual Background
This case resulted from a short police investigation. On December 20, 2016, the Woburn Police received a call for a stolen purse at the Red Roof Inn in Woburn. When they responded, Vanessa Fortin (“Fortin”) reported that defendant had stolen her purse, had left in a black Nissan, and had been using the Nissan to transport her to different locations to engage in prostitution. She said she had known defendant since December 1, 2016 and communicated with him by phone and text message using telephone number 978-478-7119 (“the 7119 Number”), which she said was defendant’s number. According to Fortin, she was first in a dating relationship with defendant, but she soon lost her housing and defendant offered to provide housing if she worked as a prostitute. Fortin told the police about ads displaying her and another woman, Shanaisha McNeill (“McNeill”), as escorts. These ads were “associated with” the 7119 Number and with 978-223-0880, which Fortin said was her phone (“Fortin’s Phone”).
Fortin said that the 7119 Number was used to conduct prostitution using the ads. According to Fortin, defendant would respond to customer text messages to the 7119 Number, but McNeill would answer as the female voice when voice calls would be received at the 7119 Number. The Commonwealth’s affidavits do not indicate that Fortin told the police what type of phone was associated with the 7119 Number, described any physical
characteristics of the phone, or said she had witnessed defendant physically accessing the LG Phone or putting a PIN or other access code into the phone.3
The police examined Fortin’s Phone. They observed several communications from the 7119 Number relating to prostitution, including “screenshots” of customer communications in response to ads, messages trying to get Fortin to return to defendant, and messages in which defendant was apologizing for his behavior. Fortin’s Phone listed the 7119 Number as associated with a contact labeled “Dennis.” Sgt. Det. McManus located a number of different ads that either used Fortin’s Phone or the 7119 Number as the point of contact for Fortin’s services.
Later on December 20, 2016, defendant contacted the Woburn police to arrange to return Fortin’s purse. He called from telephone number 857-212-8631 (“the 8631 Number”).
On December 21, 2016, defendant was arrested in the parking lot of the Red Roof Inn in Woburn. Two cellular telephones were recovered from Mr. Jones: a Kyocera phone with the 8631 Number, and an LG phone (the “LG Phone”). The LG Phone was found in the right pocket of Mr. Jones’ pants.4 After the seizure, Sgt. Det. McManus was able to verify that the 7119 Number belonged to the LG Phone by dialing the 7119 Number and observing the LG Phone receive his incoming call. According to records from Verizon Wireless, there is no subscriber
3 After her report, the Woburn police did not arrest Fortin for prostitution or any other crimes, but referred her to a homeless shelter. She has been provided with written assurances that she will not be prosecuted. According to defense counsel, she also was not arrested on December 20, 2016 on a then-pending warrant out of the Chelsea District Court.
4 Det. Shaughnessy authored a supplemental narrative report regarding his role arresting defendant and searching his vehicle. His report makes no reference to recovering any telephones. Det. Shaughnessy asserts in his affidavit, however, that he located both phones and that the LG Phone was located in defendant’s “right pants pocket.”
name associated with the 7119 Number, which is registered to 71 Evans Street in Boston. This address is close to, but different from, defendant’s address at 79 Evans Street in Boston.
Mr. Jones has not made any statements about his ownership or control of the LG Phone, the contents or use of that phone, whether the LG Phone is protected by a PIN or other access code, or whether he knows the PIN or access code to that phone.
On December 30, 2016, Sgt. Det. McManus applied for and was granted a search warrant to search the LG Phone for evidence of the crimes charged. The police were unable to execute the authorized search because the phone cannot be opened without a personal identification number (“PIN”). The Commonwealth now moves to compel defendant to provide a PIN for the LG Phone so that the search may be conducted.
B. The Merits
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const., Amend V. The protections of the Fifth Amendment apply to testimonial statements that may support a conviction, and to those “which would furnish a link in the chain of evidence needed to prosecute” the defendant. Hoffman v. United States, 341 U.S. 479, 486 (1951). See Couch v. United States, 409 U.S. 322, 328 (1973).
The law provides a limited opportunity for the government to compel information or testimony from a criminal defendant. The Supreme Judicial Court has summarized the applicable law as follows:
Although the Fifth Amendment privilege typically applies to oral or written statements that are deemed to be testimonial, . . . the act of producing evidence demanded by the government may have “communicative aspects” that would render the Fifth Amendment applicable. . . . Whether an act of production is testimonial depends on whether the government compels the individual to disclose “the contents of his own mind” to explicitly or implicitly communicate some statement of fact. . . . More
particularly, the act of complying with the government’s demand could constitute a testimonial communication where it is considered to be a tacit admission to the existence of the evidence demanded, the possession or control of such evidence by the individual, and the authenticity of the evidence.
Gelfgatt, 468 Mass. at 520-521 (citations omitted, emphasis added). Even if the compelled production does force the accused to disclose a statement of fact, the sought-after information may lose its testimonial character and not violate the defendant’s Fifth Amendment rights if the information provided is a “foregone conclusion.” Id. at 522.
“The ‘foregone conclusion’ exception to the Fifth Amendment privilege against self-incrimination provides that an act of production does not involve testimonial communication where the facts conveyed already are known to the government, such that the individual ‘adds little or nothing to the sum total of the Government’s information.’” Id. To establish the foregone conclusion exception, the Commonwealth bears the burden to show “its knowledge of (1) the existence of the evidence demanded; (2) the possession or control of that evidence by the defendant; and (3) the authenticity of the evidence.” Id. In short, where the Commonwealth’s motion compels the defendant to tell “the government what it already knows,” “[the motion] does not violate the defendant’s rights under the Fifth Amendment.” Id. at 524. See generally United States v. Hubbell, 530 U.S. 27, 43-45 (2000).
When the “foregone conclusion” exception has been applied, the government has been able to establish independently and with specificity the authenticity, existence, and possession of the compelled information. In Gelfgatt, the Commonwealth possessed “detailed evidence” of fraudulent mortgages linked to a financial services company. When he was arrested, defendant told police that he had communications with the financial services company on his computer and he had encrypted his computers for privacy and was able to decrypt them. 468 Mass. at 517.
Although the Court acknowledged that by entering an encryption key into his computers, “the defendant implicitly would be acknowledging that he has ownership and control of the computers and their contents,” “facts that would be relevant to the Commonwealth’s case,” id. at 522, the Court found that “the factual statements that would be conveyed” were a “foregone conclusion,” id. at 523, because “the defendant’s act of decryption would not communicate facts . . . beyond what the defendant already has admitted to investigators.” Id. at 519. In reaching this conclusion, the Court relied on the fact that “[d]uring his postarrest interview” defendant admitted he had performed work for the financial services company, had communications with the company on his computer, and that his computers were encrypted, but that he could decrypt them.5 Id. at 523-524.
In this case, the Commonwealth has established with reasonable particularity that information relevant to the charges against Mr. Jones exists on the LG Phone, and that it is authentic, satisfying two of the three elements of the “foregone conclusion” analysis. For example, the 7119 Number is linked to the LG Phone; online listings for alleged prostitution reference the 7119 Number; and police have possession of text messages from the 7119 Number related to commercial sex acts. In short, the Commonwealth has established independently that information connected to the charged sex trafficking activity is on the LG Phone.
The Commonwealth, however, has not demonstrated with reasonable particularity that Mr. Jones possesses the PIN number for the LG Phone or has access to what that phone contains.
5 The majority in Gelfgatt did not address the standard of proof required to show that the existence, possession, and authenticity of the evidence sought is a foregone conclusion. The phrase “foregone conclusion” suggests a high level of certainty. Most courts have concluded that the showing must be made with “reasonable particularity.” See Gelfgatt, 468 Mass. at 531-532 (Lenk, J., dissenting) (and cases cited). But see United States v. Fricosu, 841 F. Supp. 2d 1232, 1234 (D. Colo. 2012) (applying “preponderance of the evidence” standard). The parties have not addressed the issue.
The phone is not registered to Mr. Jones or to his address. A female voice (McNeill’s) answers voice calls to the 7119 Number. The Commonwealth has provided no evidence of Mr. Jones accessing or entering the PIN number into the LG Phone. The Commonwealth does not suggest that any law enforcement officer called the LG Phone and heard Mr. Jones answer the phone. In addition, Mr. Jones has not admitted to owning or controlling the phone. In short, the Commonwealth has offered no evidence akin to the strong evidence offered in Gelfgatt, where the defendant admitted to encrypting (and being able to decrypt) the computers at his home office.
The Commonwealth relies mainly on statements from Ms. Fortin, who lists the 7119 Number in her phone’s contact list as “Dennis,” and claims the 7119 Number belongs to Mr. Jones. I have not seen a statement from Ms. Fortin that shows she witnessed Mr. Jones using the LG Phone, nor did she describe the physical characteristics of the phone (such as model, color, or general appearance) in a way to suggest she has seen Mr. Jones physically use or enter a PIN into the phone. Defendant challenges Ms. Fortin’s credibility. The Commonwealth seems tacitly to acknowledge Ms. Fortin’s credibility issues, indicating in its search warrant affidavit that it seeks access to the contents of the LG Phone to “corroborate or fail to corroborate” the “key aspects of Ms. Fortin’s statement.” Affidavit of Sgt. Det. McManus ¶ 45 (Dec. 30, 2016).
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. In many (perhaps nowadays most) cases, a cellular telephone is found on an individual at the time of his/her arrest. The mere fact of possession 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. 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. I cannot compel defendant to disclose or produce the PIN.
The Commonwealth’s Motion to Reopen Evidence in Motion Hearing to Compel Defendant to Produce PIN Code for Cellular Telephone Seized Pursuant to Search Warrant or/in the Alternative Request for Reconsideration Upon Denial of Commonwealth’s Motion to Compel (Docket #17) is ALLOWED as to reopening and DENIED as premature at to reconsideration.
The Commonwealth’s Motion for an Order Requiring Production of a PIN (Personal Identification Number) Access Code (Docket #14) is DENIED.
Dated: July 25, 2017 Peter B. Krupp
Justice of the Superior Court

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