State of Maine v. Trant

CourtSuperior Court of Maine
DecidedOctober 22, 2015
DocketCUMcr-15-2389
StatusUnpublished

This text of State of Maine v. Trant (State of Maine v. Trant) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Maine v. Trant, (Me. Super. Ct. 2015).

Opinion

080951

STATE OF ~v1AINE UNIFIED CRIMINAL DOCKET CUMBERLAND, ss. PORTLAND

Docket No. 15-2389

STATE OF 1v1AINE ) ) v. ) ORDER ON STATE'S MOTION TO COMPEL ) PRODUCTION OF CELLPHONE PASSCODES ) MARQUISE TRANT )

The Grand Jury has indicted Marquise Trant with two counts of Aggravated Trafficking in Scheduled Drugs. (Class A). The State has also filed a request for Criminal Forfeiture of U.S. currency. On April 9, 2015 and again on April 14, 2015 the State orchestrated two controlled buys through a confidential informant. On both occasions the State alleges that Mr. Trant sold crack cocaine to the confidential informant. Based on these two buys, the Maine Drug Enforcement Agency arrested Mr. Trant on April 27, 2015. When he was arrested, the police seized two cell phones, an iPhone 4 and iPhone 6. The State obtained a search warrant authorizing a search of the seized cellphones for "[e]lectronically stored information including phone numbers, names, text messages, voice recordings, photographs, video clips, date and time stamps, and other electronic information; all of which may be contraband and evidence of the offenses of possession, furnishing, and/or trafficking scheduled drugs which are seizable pursuant to Maine Rule of Criminal Procedure 41 and/or Maine Rule of Civil Procedure 801." The State's Drug Enforcement Agency reported on April30, 2015 that it has been unable to execute the search on the seized phones because they are locked. See Report of Eric Pfeffer at ~1 ("In order to complete the part of the investigation I would need the pin/passcode/pattem to

unlock the above items. I'm requesting the owners of each device be compelled to release their pin/passcode/pattem to complete this portion of the investigation"). Accordingly, by motion filed June 11, 2015, the State "asks that this Court compel the Defendant to produce the passcodes for each phone.'' Subsequent to filing its motion, the State revised its position to indicate that it does not need a court order requiring Defendant to release his passcode, but rather seeks only that the Court compel the Defendant to himself insert the passcodes so that the State may gain access to the phones' contents. The court held a non-testimonial hearing on the State's Motion to Compel on June 26, 2015. Following a conference call with counsel, the Court scheduled an evidentiary hearing on the State's motion to compel on September 29, 2015. 1 Attorney Devens Hamlen appeared on behalf of Defendant. Assistant Attorney General Lea-Anne Sutton appeared on behalf of the State. The court heard testimony from the arresting officer, Detective Bradley Rogers, and from Eric Pfeffer, as well as extensive oral argument. At hearing the State's wi1ness testified that the State of Maine does not have the technology required to access the information on either phone without Defendant's cooperation. The State indicated that there is a federal facility in Boston that can access encrypted information on cellphones, but only by destroying the phones, adding that in any event that facility is designated for homeland security purposes, not drug investigations. The State had initially thought that one of the phones was accessible by fingerprint, but has since determined that both phones are password, not fingerprint, protected. The State also acknowledges that when it first seized the phones there may have: been a window of time when it could have accessed the information stored on the phones, but decided to shut the phones down immediately after they were seized to avoid any possibility that Defendant might remotely delete or edit their contents. Having considered the facts adduced at hearing, counsel's oral argument, Defendant's Objection to State's Motion to Compel, filed September 29, 2015, and the State's Response to Defendant's Objection, filed October 5, 2015, the court concludes as follows. The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend V. See also Me. Const. art. I, § 6 ("the accused . . . shall not be compelled to furnish or give evidence against himself'). It is well established that the constitutional right against self-incrimination is implicated only where there is compulsion of an incriminating testimonial communication. See, e.g., United States v. Doe (In re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335, 1341 (11th Cir. 2012) ("An individual must show three things to fall within the ambit of the Fifth Amendment: 1) compulsion, 2) a testimonial communication or act, and 3) incrimination"); United States v. Authement, 607 F.2d

1 The court initially scheduled the hearing on August 11, 2015, but continued the matter at Defendant's request to allow him to have new counsel appointed.

2 1129, 1131 (5th Cir, 1979) (same). The State argues that its pending motion does not implicate Defendant's Fifth Amendment rights on the ground that "production of the passcode is not testimonial." See Motion to Compel Passcode. The court is not persuaded by the State's argument on this point. 2 It follows from U.S. Supreme Court precedent that an "act of production itself qualifies as testimonial if conceding the existence, possession and control, and authenticity of the documents tend[s] to incriminate." United States v. Doe, supra, 670 F.3d at 1343 (citing Fisher v. United States, 425 U.S. 391, 410 (1976)). While a defendant may be compelled to submit to fingerprinting, photography, or the taking of measurements, and may be compelled to provide a blood sample or a handwriting or voice exemplar, forcing a defendant to produce a passcode is distinguishable, as a passcode is not akin to physical characteristic evidence, but rather is the product of mental processes. See, e.g., id. at 1345 ("The Fifth Amendment privilege is not triggered where the Government m(:rely compels some physical act, ie., where the individual is not called upon to make use of the contents of his or her mind"); Commonwealth v. Baust, 89 Va. Cir. 267, 271 ("Unlike the production of physical characteristic evidence, such as a fingerprint, the production of a password forces the Defendant to 'disclose the contents of his own mind"'). The State attempts to avoid the testimonial hurdle by suggesting that it is not interested in having Defendant disclose the passcode to them, but rather simply seeks a court order directing Defendant to open the phones so that the State may gain access to his stored information, an act that the State asserts is essentially physical. The court does not agree that in this case the Fifth Amendment issue may be avoided by requiring Defendant to himself open the phones. At its core, the privilege against self-incrimination "reflects our fierce unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt." Pennsylvania v. Muniz, 496 U.S. 582, 596 (1990). "It is evident that a suspect is 'compelled to be a witness against himself at least whenever ht: must face the modem-day analog of the historic trilemma -- either during a criminal trial where the a sworn witness faces the identical three choices, or

2 The State's motion presents an issue of first impression in Maine. Moreover, despite the ubiquitous presence of cellphones today, only a few reported cases address Fifth Amendment concerns with respect to cellphone passwords. See generally Marjorie A.

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Related

Fisher v. United States
425 U.S. 391 (Supreme Court, 1976)
Doe v. United States
487 U.S. 201 (Supreme Court, 1988)
Pennsylvania v. Muniz
496 U.S. 582 (Supreme Court, 1990)
Robert J. Jones v. Reliance Insurance Company
607 F.2d 1 (D.C. Circuit, 1979)
In Re Grand Jury Subpoena Duces Tecum
670 F.3d 1335 (Eleventh Circuit, 2012)
Commonwealth v. Baust
89 Va. Cir. 267 (Virginia Beach County Circuit Court, 2014)

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Bluebook (online)
State of Maine v. Trant, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-maine-v-trant-mesuperct-2015.