                             [J-42-2019] [MO: Todd, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                  :   No. 56 MAP 2018
                                                :
                      Appellee                  :   Appeal from the Order of the Superior
                                                :   Court at No. 1243 MDA 2016 dated
                                                :   November 30, 2017, Reconsideration
               v.                               :   denied February 5, 2018, Affirming the
                                                :   Order of the Luzerne County Court of
                                                :   Common Pleas, Criminal Division, at
 JOSEPH J. DAVIS,                               :   Nos. CP-40-CR-291-2016 and CP-40-
                                                :   MD-11-2016 dated June 30, 2016
                      Appellant                 :
                                                :   ARGUED: May 14, 2019


                                  DISSENTING OPINION


JUSTICE BAER                                             DECIDED: November 20, 2019
       I respectfully dissent from the majority’s decision, which holds that the foregone

conclusion exception to the Fifth Amendment privilege against self-incrimination does not

apply to the compelled disclosure of a computer password because the password

manifests from one’s mind. I further disagree with the majority’s alternative holding that

if the foregone conclusion exception would apply under the circumstances presented, the

Commonwealth failed to satisfy the requisites thereof because it did not establish that it

had knowledge of the various files stored on Appellant’s computer hard drive in addition

to the single previously identified file that contained child pornography.

       Preliminarily, I acknowledge that the issue presented in this appeal is one of first

impression, with which courts across the nation have struggled. See generally Marjorie

A. Shields, Fifth Amendment Privilege Against Self-Incrimination as Applied to Compelled

Disclosure of Password or Production of Otherwise Encrypted Electronically Stored Data,
84 A.L.R. 6th 251 (2019) (compiling Fifth Amendment cases involving “compelled

disclosure of an individual’s password, means of decryption, or unencrypted copy of

electronically stored data”). Upon review of the High Court’s seminal decision in Fisher

v. United States, 425 U.S. 391 (1976), which first recognized the foregone conclusion

exception, and its progeny, I would hold that the foregone conclusion analysis applies to

the compelled disclosure of a password to an electronic device, which the Commonwealth

has seized pursuant to a warrant.

       My analysis focuses on the compulsion order, which directed Appellant to “supply

the Commonwealth with any and all passwords used to access” a specific desktop

computer and hard drive seized from his residence. Trial Court Order, 6/30/2016. In my

view, this order compels an act of production that has testimonial aspects in that it

conveys, as a factual matter, that Appellant has access to the particular computer seized

by the Commonwealth pursuant to a warrant, and that he has possession and control

over the password that will decrypt the encrypted files stored on that computer. As

discussed in detail infra, because the Commonwealth was already aware of these facts

based upon its own investigation and Appellant’s candid discussion with government

agents, the password falls within the foregone conclusion exception to the Fifth

Amendment privilege against self-incrimination, and may be constitutionally compelled.

Notably, critical to my position is the recognition that this case does not involve a Fourth

Amendment challenge based upon Appellant’s privacy rights in his encrypted computer

files but, rather, solely a challenge to the compelled disclosure of his password based

upon his Fifth Amendment privilege against self-incrimination.

                   I. The Fifth Amendment As Applied To Acts of Production

       As noted by the majority, the Fifth Amendment provides, in relevant part, that “[n]o

person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.




                              [J-42-2019] [MO: Todd, J.] - 2
CONST. amend V. Courts have interpreted the privilege as protecting a citizen “from being

compelled to testify against himself, or otherwise provide the State with evidence of a

testimonial or communicative nature.” Pennsylvania v. Muniz, 496 U.S. 582, 588-89

(1990) (citations omitted). The Fifth Amendment “does not independently proscribe the

compelled production of every sort of incriminating evidence but applies only when the

accused is compelled to make a testimonial communication that is incriminating.” Fisher,

425 U.S. at 408.      To be testimonial, a communication must either “explicitly or

implicitly . . . relate a factual assertion or disclose information.” Doe v. United States,

487 U.S. 201, 210 (1988).

      In Fisher, the High Court explained that in addition to traditional testimony, acts of

production may implicate the Fifth Amendment because the “act of producing evidence

in response to a subpoena nevertheless has communicative aspects of its own, wholly

aside from the contents of the papers produced.” 425 U.S. at 410. The Court explained

that compliance with a request for evidence “tacitly concedes” the existence of the

evidence, possession or control of the evidence by the individual, and the belief that the

evidence is, in fact, the item requested by the government. Id. Whether the act of

production has a testimonial aspect sufficient to warrant Fifth Amendment protection

“depends on the facts and circumstances of particular cases or classes thereof.” Id.

      It is well established that some compelled acts have no testimonial aspects and,

thus, no Fifth Amendment protection, as the acts do not require an accused to relate a

factual assertion, disclose knowledge, or “speak his guilt.” Doe v. United States, 487 U.S.

201, at 210-11 (1988). These include, for example, furnishing a blood sample, providing

a voice or handwriting exemplar, or standing in a line-up. Id. (collecting cases). Other

compelled acts, such as the production of certain subpoenaed documents, may have a

compelled testimonial aspect warranting Fifth Amendment protection where the




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government’s demand is akin to a “detailed written interrogatory or a series of questions

at a discovery deposition,” characterized as a “fishing expedition.” United States v.

Hubbell, 530 U.S. 27, 36, 41-42 (2000).1

       Finding that an act of production has testimonial aspects, however, does not

necessarily mean that the Fifth Amendment privilege precludes compulsion of the

evidence sought. As the majority cogently observes, the United States Supreme Court

has found that information, otherwise testimonial in nature, is unprotected where the

production of such information is a foregone conclusion. Majority Opinion at 20. The

foregone conclusion exception applies where the existence and location of the compelled

evidence “adds little or nothing to the sum total of the government’s information.” Fisher,

425 U.S. at 410. The High Court in Fisher explained that a foregone conclusion exists

where “[t]he question is not of testimony but of surrender.” Id. at 411 (quoting In re Harris,

221 U.S. 274, 279 (1911)).       Thus, as the majority recognizes, “what is otherwise

testimonial in nature is rendered non-testimonial, as the facts sought to be compelled are

a foregone conclusion.” Majority Opinion at 21.

       In my opinion, the compulsion of Appellant’s password is an act of production,

requiring him to produce a piece of evidence similar to the act of production requiring one

to produce a business or financial document, as occurred in Fisher.2 See Trial Court

Order, 6/20/2016 (directing Appellant to “supply the Commonwealth with any and all


1 In Hubbell, the Supreme Court held that the act of producing thousands of subpoenaed
documents had testimonial aspects in that the act of production communicated
information about the documents’ existence, custody, and authenticity. The High Court
concluded that, unlike in Fisher, the government had shown no prior knowledge of either
the existence or whereabouts of the documents, thus, the foregone conclusion exception
to the Fifth Amendment privilege against self-incrimination did not apply.
2 The summonses in Fisher directed the defendants’ attorneys to produce documents
relating to the defendants’ tax returns in connection with an investigation into possible
civil or criminal liability under federal income tax laws.


                               [J-42-2019] [MO: Todd, J.] - 4
passwords used to access the HP Envy 700 desktop computer with serial #

MXX4100000042C containing Seagate 2 TB hard drive with serial # Z4Z1AAAEFM”). An

order compelling disclosure of the password, here a 64-character password, has

testimonial attributes, not in the characters themselves, but in the conveyance of

information establishing that the password exists, that Appellant has possession and

control of the password, and that the password is authentic, as it will decrypt the encrypted

computer files. The Commonwealth is not seeking the 64-character password as an

investigative tool, as occurred in Hubbell, where the government compelled the disclosure

of thousands of documents to engage in a fishing expedition to discover evidence of the

defendant’s guilt. To the contrary, the Commonwealth already possesses evidence of

Appellant’s guilt, which it set forth in an affidavit of probable cause to obtain a warrant to

search Appellant’s computer.       Stated differently, the Commonwealth is not asking

Appellant to “speak his guilt,” but merely to allow the government to execute a warrant

that it lawfully obtained.

       Because I view the compulsion order as requiring the “surrender” of Appellant’s

password to decrypt his computer files, I would apply Fisher’s act-of-production test. The

majority declines to apply the foregone conclusion rationale to the compelled disclosure

of Appellant’s computer password, finding that to do so would constitute a “compulsion of

one’s mental processes” in violation of the Fifth Amendment. Majority Opinion at 22.

There is appeal to this conclusion, as requiring Appellant to supply his password involves

some mental effort in recalling the 64 characters used to encrypt the computer files. 3


3 I recognize that the majority’s conclusion in this regard finds support in commentary
found in federal cases, suggesting a constitutional distinction between the compelled
surrender of a key and the compelled disclosure of a combination to a wall safe. For the
reasons set forth herein, however, I do not find any such distinction dispositive in a case
involving current day technology relating to the compelled disclosure of a password to
encrypted digital information, where the Commonwealth has a warrant to search the



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However, one would expend similar mental effort when engaging in virtually any other act

of production, such as the disclosure of business or financial records, as the individual

must retrieve the contents of his mind to recall the documents’ location before disclosing

them to the government. Under the majority’s reasoning, the compelled production of

documents would be tantamount to placing the defendant on the stand and requiring him

to testify as to the location of the documents sought. The mere fact that Appellant is

required to think in order to complete the act of production, in my view, does not immunize

that act of production from the foregone conclusion rationale.

                       II. Application of the Foregone Conclusion Test

       Having determined that the foregone conclusion rationale may potentially apply to

cases involving the compelled disclosure of a computer password, significant questions

arise regarding how to administer the three-part test. As observed by the majority, to

satisfy the foregone conclusion exception to the Fifth Amendment privilege, “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.” Majority Opinion at 21.

       As an alternative holding, the majority opines that if the Court were to find that the

foregone conclusion exception could apply to the compelled disclosure of a password, it

would apply Fisher’s act-of-production test to the computer files stored on Appellant’s

computer. See Majority Opinion at 25 n.9 (holding that “because the Commonwealth has

failed to establish that its search is limited to the single previously identified file [containing

child pornography], and has not asserted that it is a foregone conclusion as to the

existence of additional files that may be on the computer, which would be accessible to


digital container. Only the High Court can make the final determination in this regard for
purposes of the Fifth Amendment, and the present case offers an attractive vehicle by
which the Court could do so.


                                [J-42-2019] [MO: Todd, J.] - 6
the Commonwealth upon Appellant’s compelled disclosure of the password, we find the

Commonwealth has not satisfied the foregone conclusion exception”).

       Respectfully, it is my position that the foregone conclusion exception as applied to

the facts presented relates not to the computer files, but to the password itself.

Appellant’s computer files were not the subject of the compulsion order, which instead

involved only the password that would act to decrypt those files. This change of focus is

subtle, but its effect is significant. While the government’s knowledge of the specific files

contained on Appellant’s computer hard drive would be central to any claim asserted

pursuant to the Fourth Amendment, the same is not dispositive of the instant claim based

upon the Fifth Amendment right against self-incrimination, which focuses upon whether

the evidence compelled, here, the password, requires the defendant to provide

incriminating, testimonial evidence.     See Doe v. United States (In re Grand Jury

Subpoena), 383 F.3d 905, 910 (9th Cir. 2004) (providing that “it is the government’s

knowledge of the existence and possession of the actual documents [subpoenaed by the

government], not the information contained therein, that is central to the foregone

conclusion inquiry”).    This Court should not alleviate concerns over the potential

overbreadth of a digital search in violation of Fourth Amendment privacy concerns by

invoking the Fifth Amendment privilege against self-incrimination, which offers no privacy

protection. The High Court in Fisher made this point clear by stating, “We cannot cut the

Fifth Amendment loose from the moorings of its language, and make it serve as a general

protector of privacy – a word not mentioned in its text and a concept directly addressed

in the Fourth Amendment.” 425 U.S. at 401 (quoting United States v. Nobles, 422 U.S.

225, 233 n.7 (1975) (emphasis in original)).

       Accordingly, I would align myself with those jurisdictions that examine the

requisites of the foregone conclusion exception by focusing only on the compelled




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evidence itself, i.e., the computer password, and not the decrypted files that the password

would ultimately reveal. See, e.g., United States v. Apple MacPro Computer, 851 F.3d

238, 248 n.7 (3rd Cir. 2017) (“[A] very sound argument can be made that the foregone

conclusion doctrine properly focuses on whether the Government already knows the

testimony that is implicit in the act of production. In this case, the fact known to the

government that is implicit in the act of providing the password for the device is ‘I, John

Doe, know the password for these devices.’”); State v. Johnson, 576 S.W.3d 205, 277

(Mo. Ct. App. 2019) (holding that the focus of the foregone conclusion exception as

applied to the compelled entering of one’s cell phone passcode is the extent of the

government’s knowledge about the existence of the passcode, his possession and control

of the phone’s passcode, and the passcode’s authenticity); Commonwealth v. Gelfgatt,

11 N.E.3d 605, 615 (Mass. 2014) (holding that the compelled decryption of computer files

satisfied the elements of the foregone conclusion exception because the government

already knew the implicit facts conveyed through the act of entering the encryption key,

such as the defendant’s ownership and control of the computers, knowledge of the

encryption, and knowledge of the encryption key); State v. Andrews, 197 A.3d 200, 205

(N.J. Super. 2018) (holding that whether the government was aware of the possible

contents of the defendant’s cell phones was immaterial “because the order requires

defendant to disclose the passcodes, not the contents of the phones unlocked by those

passcodes”).

                              III. Application to Future Cases

       Finally, it is my belief that the majority’s approach could render inconsistent results

as the determination of whether there was a Fifth Amendment violation in compelled

decryption cases could depend upon the type of password that the individual employed

to protect his encrypted files. For example, according to the majority, if the accused used




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a multi-character password to encrypt computer files, as occurred here, and the

government compelled the individual to supply the password, a Fifth Amendment violation

would result because the password manifests through the use of one’s mind. Majority

Opinion at 23. However, if the individual employed a biometric password, such as facial

recognition or a fingerprint, the majority’s analysis would arguably lose its force. Under

those circumstances, the individual is not using the contents of his mind but, rather, is

performing a compelled act of placing his finger or face in the appropriate position to

decrypt the files. Additional questions arise when the act of compulsion is not the

disclosure of the password itself, but the entry of the password into the computer. It is

my position that all these examples constitute acts of production that would be subject to

the foregone conclusion rationale in the appropriate case. The same legal analysis

should apply to the underlying act of compelled decryption of digital information when the

government has obtained a warrant to search the digital container. To hold to the contrary

would create an entire class of evidence, encrypted computer files, that is impervious to

governmental search.     This could potentially alter the balance of power between

governmental authorities and criminals, and render law enforcement incapable of

accessing relevant evidence.

                                      IV. Conclusion

      Accordingly, I would hold that the foregone conclusion exception to the Fifth

Amendment privilege against self-incrimination applies to render non-testimonial

Appellant’s compelled act of producing the password to his encrypted, lawfully seized

computer. As the majority observes, when government agents attempted to execute the

search warrant, Appellant voluntarily informed them that he was the sole user of the

computer, that he used hardwired Internet services that were password protected, that




                               [J-42-2019] [MO: Todd, J.] - 9
only he knew the password to decrypt his computer files, and that he would never disclose

the password, as it would incriminate him.

       In addition to Appellant’s voluntary disclosure to government agents that he knew

the password that would decrypt the files stored on the computer that the Commonwealth

lawfully seized, there is ample circumstantial evidence demonstrating Appellant’s

knowledge of the password. Before seizing the computer, government agents conducted

an investigation of the “eMule” peer-to-peer network to identify internet users sharing child

pornography. Agents made a direct connection with a device that used a particular IP

address over the eMule network, which agents subsequently linked to Appellant. Using

this direct connection, agents downloaded one child pornography video file from

Appellant’s IP address. Affidavit of Probable Cause, 10/20/2015, at 7. Based on this

download, the agents obtained the search warrant for Appellant’s residence. Id. at 9.

       Upon executing the search warrant, agents seized a single desktop computer, as

that was the only device connected to Appellant’s IP address. N.T., 1/14/2016, at 33.

Forensic analysis revealed that Appellant’s IP address had used the eMule file-sharing

program on 23 dates from July 4, 2015, through October 19, 2015, to share files indicative

of child pornography. Affidavit of Probable Cause, 10/20/2015, at 10-11; N.T., 1/14/2016,

at 29. Agent Daniel Block explained that the government reached this conclusion based

upon the “SHA value,” which is essentially a “digital fingerprint” that corresponds with

known SHA values of child pornography files. N.T., 1/14/2016, at 20. This evidence

demonstrates that Appellant possessed the password to decrypt files on the computer

seized by the Commonwealth, as his own words established that he was the sole user of

the computer and forensic analysis demonstrated that he was accessing the encrypted

files on the days leading up to his arrest.




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       Under these circumstances, it was a foregone conclusion that the government

knew that the password to decrypt the files existed, that Appellant had exclusive control

over the password, and that the password was authentic.4 Accordingly, the testimonial

aspects of the password disclosure “adds little or nothing to the sum total of the

government’s information.” Fisher, 425 U.S. at 410. Thus, I would find that the compelled

disclosure of Appellant’s password does not violate his Fifth Amendment privilege against

self-incrimination.

       Justices Dougherty and Mundy join this dissenting opinion.




4 I would hold that the authenticity prong of the foregone conclusion exception requires
the government to establish that the compelled information is what it purports to be, i.e.,
a password that will decrypt the computer files on Appellant’s hard drive. The
Commonwealth may prove the authenticity of the password by Appellant’s own voluntary
statements. See Pa.R.E. 901(b) (providing that the requirement of authenticating an item
of evidence may be satisfied by testimony of a witness with knowledge that an item is
what it is claimed to be). Here, Appellant’s voluntary statements establish that the
password would decrypt the files on his hard drive; thus, I would conclude that the
authenticity requirement has been satisfied.


                             [J-42-2019] [MO: Todd, J.] - 11
