On Jan. 22, at the request of the Pennsylvania Bar Institute, I gave a lecture to statewide lawyers regarding the Pennsylvania Supreme Court’s recent ruling that the police cannot force people to tell them the password to their cellphones or computers.
Although that precedent-setting decision, in the case of Commonwealth v. Davis, stemmed from the arrest of a white guy in a rural county, it’ll mostly benefit Black and Brown folks in the urban county of Philadelphia. And that’s because of this city’s notorious and widespread unconstitutional “stop-and-frisk” practice.
Numbers don’t lie. During the first half of 2018 (for which the most recent statistics are available), more than 80 percent of stops and more than 87% of frisks- many of which resulted in cellphones being unlawfully searched through- were of Black and Brown pedestrians despite the fact that Blacks constitute only 44% of the city’s population and Browns only 12%. That trend appears to be continuing so far in 2020. By the way, in regard to those frisks, totaling 741, only ten resulted in guns being found. That’s a rate of less than 1.5%.
During the first eight months of 2019 (for which the most recent statistics are available), more than 74% of stops and more than 80% of frisks- many of which resulted in cellphones being unlawfully searched through- were of Black drivers. That trend appears to be continuing so far in 2020. By the way, although Blacks constitute 44% of the population as previously noted, Black drivers throughout the city account for 75% of vehicle stops and are twice as likely as white drivers to be stopped. And in the racially diverse Germantown, Chestnut Hill, and West Oak Lane area, they are 3½ times as likely.
In that eight month period, fewer than 250 white drivers on average were frisked with their cars (and likely some of their phones) unlawfully searched through monthly. But for Blacks and Browns, it was 2,000 on average who were frisked and whose cars (and definitely many of their phones) were unlawfully searched through monthly.
These numbers explain why this recent Davis case is so important to Black as well as Brown people in Philly. So let’s get into it, shall we?
The state’s high court addressed the issue of whether the Fifth Amendment right against self-incrimination prohibited agents from the Office of the Attorney General, (i.e., the cops) from forcing Joseph J. Davis of Luzerne County to disclose his encrypted 64-character “TrueCrypt” computer password just as the Fifth Amendment prohibits police from forcing people to confess to crimes or to show where incriminating evidence is located.
In resolving that issue, the justices pointed out that there’s exception to that prohibition. It’s called the “foregone conclusion” exception. I should mention that although the law concerning this exception is rather complex and esoteric to lay persons, I always follow the instructions of Malcolm X who always said, “Make it plain.”
The “foregone conclusion” exception applies when a person is compelled to comply with a prosecutor’s subpoena for business records and only when such compliance does not reveal the “contents of... [the person’s] mind.” In other words, if the information is in a physical form, you gotta give it up. But if it’s in the mental form, meaning inside your head, you don’t have to give it up. It’s as simple as that.
This is precisely why I tell people to immediately remove the fingerprint access, the facial recognition access, or any similar access from their phones and computers. The cops can legally make you let them see the contents of your phones and computers by forcing your finger onto or your face in front of your phone or computer. But they can’t legally force you to tell them your password.
In addition to my general legal advice regarding getting rid of that fingerprint and facial recognition nonsense, here’s more general legal advice: When the police suspect you of a crime and start interrogating you, “Sit down and shut up!”
Mr. Davis didn’t do that. Instead, although he was smart enough not to give up his password when the Attorney General investigators confronted him in 2014, he was dumb enough to engage in lengthy conversations with them. For example, he admitted that the computer (which was the focus of the investigation) belonged to him. He admitted that he was the only person who used the computer. He admitted that he knew the password to access the computer. He admitted that there was incriminating evidence on the computer and then mentioned, “No f- — -ing way I’m going to give it to you.”
After prosecutors in the Attorney General’s Office in 2015 filed a pre-trial “Motion To Compel Defendant To Provide Password For Encryption Enabled Device,” the trial judge in 2016 issued an order requiring such disclosure, reasoning that the Fifth Amendment argument against self-incrimination is meritless in this case because the “foregone conclusion” applies since Davis had already admitted that the computer belonged to him, that he was the only person who used it, that he knew the password to access the information on it, and that there was incriminating evidence on it. Therefore, said that judge, the password itself was a mere “foregone conclusion” since the investigators already knew everything else, meaning, basically (and fallaciously), that the password wouldn’t really add much to further incriminate Davis.
Davis’ lawyer immediately filed an interlocutory appeal to the Superior Court, which, in 2017, upheld the Luzerne County trial judge, thereby ordering the defendant to disclose the password.
Davis’ lawyer then filed an “allocatur appeal” to the state Supreme Court which, in a 27-page 4-3 decision on Nov. 20, 2019, overturned the Superior Court by declaring that the “foregone conclusion” exception does not apply to this case and has never applied to any oral testimony case and rarely to any physical records case. The Supreme Court went on to declare, “The revealing of a computer password is a verbal communication, not merely a physical act.... There is no physical manifestation of a password, unlike a handwriting sample, blood draw, or voice exemplar. As a password is necessarily memorized, one cannot reveal... [it] without revealing the contents of one’s mind.....”
In other words, and to make it plain, the Supreme Court said you don’t have to tell the cops your password.
And to make it even plainer, I’m saying take that fingerprint and facial recognition stuff off your phones and computers. Also, don’t forget to sit down and shut up.
The opinions expressed in this commentary are his. View more opinions on phillytrib.com.