## Facts

- Police arrested Dennis Jones and seized a cell phone found on his person.
- Jones was indicted on charges including trafficking a person for sexual servitude and deriving support from the earnings of a prostitute.
- The Commonwealth obtained a search warrant to search the phone for evidence but could not execute it because the phone was encrypted and required a password.
- The Commonwealth moved in Superior Court for an order compelling Jones to enter the phone’s password to permit execution of the warrant.
- The motion judge denied the request, concluding the Commonwealth had not shown that Jones’s knowledge of the password was a “foregone conclusion” under prior Massachusetts precedent.
- The Commonwealth filed a renewed motion with additional factual proffers; the judge again denied relief, partly reasoning the new information should not be considered and, regardless, the standard still was not met.
- The Commonwealth sought interlocutory review, and the Supreme Judicial Court considered whether compelled entry of the password violated protections against self-incrimination and what burden of proof applied.

## Issues

1. Whether ordering a defendant to enter a password to decrypt a seized cell phone, to enable execution of a valid search warrant, violates the Fifth Amendment or article 12 privilege against self-incrimination.
2. Whether the “foregone conclusion” doctrine applies to compelled decryption by requiring the Commonwealth to show the defendant knows the password.
3. What burden of proof the Commonwealth must satisfy to establish the foregone-conclusion showing in this context.

## Decision

- The Supreme Judicial Court reversed the denial of the Commonwealth’s renewed motion to compel.
- The court held that compelling Jones to enter the password did not violate the Fifth Amendment or article 12 because his knowledge of the password was a foregone conclusion on the record presented.
- The court required the Commonwealth to prove beyond a reasonable doubt that the defendant knows the password before compulsion is permissible under the foregone-conclusion doctrine.
- The case was remanded for entry of an order compelling Jones to enter the password into the phone.

## Legal Principles

- The privilege against self-incrimination protects against compelled testimonial communications; an act can be testimonial if it implicitly communicates facts derived from the person’s mind.
- Compelled decryption can be testimonial to the extent it implicitly asserts the defendant’s knowledge of the password and ability to access the device.
- Under the foregone-conclusion doctrine, compulsion is permitted when the government already knows, to the required certainty, the facts the compelled act would communicate; in the decryption setting, this includes the defendant’s knowledge of the password.
- In Massachusetts, the Commonwealth must prove beyond a reasonable doubt that the defendant knows the password to treat that knowledge as a foregone conclusion and to compel password entry consistent with the Fifth Amendment and article 12.
- A valid search warrant and a fact-specific showing of the defendant’s password knowledge are prerequisites to an order compelling decryption.

## Conclusion

The Supreme Judicial Court permitted compelled entry of a phone password to execute a lawful warrant, but only where the Commonwealth proves beyond a reasonable doubt that the defendant knows the password, making the testimonial aspect of decryption a foregone conclusion under the Fifth Amendment and article 12.


Commonwealth v. Jones, 481 Mass. 540, 117 N.E.3d 702 (Mass. 2019)