ORDER GRANTING APPLICATION UNDER THE ALL WRITS ACT REQUIRING DEFENDANT FRICOSU TO ASSIST IN THE EXECUTION OF PREVIOUSLY ISSUED SEARCH WARRANTS
The matters before me are (1) the government's
In fashioning my ruling, I have considered all relevant adjudicative facts in the file and record of this case. I have considered the evidence educed at the hearings on November 1, 2011, and January 3, 2012. I have considered, but not necessarily accepted, the reasons stated, arguments advanced, and authorities cited by counsel in their papers and during oral argument at the conclusion of the hearing on January 3, 2012.
In assessing the credibility of the witnesses who testified during the hearings, I have considered all facts and circumstances shown by the evidence that affected the credibility of each witness, including the following factors: the witness's means of knowledge, ability to observe, and strength of memory; the manner in which he or she might be affected by the outcome of the hearing; the relationship he or she has to either side in the case; and the extent to which, if at all, he or she was either supported or contradicted by other evidence presented during the hearing.
I have considered the totality of relevant circumstances. My findings of fact are based on a preponderance of the evidence. Any finding of fact more properly deemed a conclusion of law, or any conclusion of law more properly deemed a finding of fact, shall be as more properly characterized.
I. FINDINGS OF FACT
On May 14, 2010, the FBI executed a search warrant at 10436 Ross Lake Drive in Peyton, Colorado, where defendant, Ramona Fricosu lived with her children and her mother. At the time of the search, Ms. Fricosu and her husband, co-defendant Scott Whatcott, were divorced, and Mr. Whatcott was incarcerated at the Four Mile Correctional Center in Pueblo, Colorado, on state charges.
During the search, agents seized, inter alia, six computers. Agents seized three desktop computers, which are not implicated by the present motion. The remaining three computers were laptops, more specifically: (1) a Hewlett-Packard 6001; (2) a Toshiba 7600; and (3) a Toshiba Satellite M305. Neither the Hewlett-Packard nor the Toshiba 7600 was encrypted, and investigative agents were able to image and examine their contents.
The Toshiba Satellite M305 laptop computer was found in Ms. Fricosu's bedroom during the search. When agents started the computer, they were able to view the whole disk encryption screen,
(Id., Gov't Hrg. Exh. 8 at 1-3.) Based on this conversation, the government sought a warrant to allow it to search the Toshiba Satellite M305 laptop. By this motion, the government seeks a writ pursuant to the All Writs Act, 28 U.S.C. § 1651, requiring Ms. Fricosu to produce the unencrypted contents of the computer. She has declined, asserting her privilege against self-incrimination under the Fifth Amendment.
Based on a preponderance of the evidence, I find that the Toshiba Satellite M305 laptop computer belongs to Ms. Fricosu, or, in the alternative, that she was its sole or primary user, who, in any event,
II. CONCLUSIONS OF LAW
The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself."
Although the privilege applies typically to verbal or written communications, an act that implicitly communicates a statement of fact may be within the purview of the privilege as well. United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 2043, 147 L.Ed.2d 24 (2000); Doe v. United States, 487 U.S. 201, 209, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184 (1988) (Doe II). More specifically in the context of this case, "[a]lthough the contents of a document may not be privileged, the act of producing the document may be." United States v. Doe, 465 U.S. 605, 612, 104 S.Ct. 1237, 1242, 79 L.Ed.2d 552 (1984) (Doe I).
The small universe of decisions dealing with the Fifth Amendment issues implicated by compelling a witness or defendant to provide a password to an encrypted computer or otherwise permit access to its unencrypted contents are instructive here. In In re Grand Jury Subpoena to Boucher, 2007 WL 4246473 (D.Vt. Nov. 29, 2007) (Boucher I), a laptop computer was found in the defendant's car during a search incident to his crossing the border from Canada into the United States. During the initial search, an officer opened the computer and without entering a password was able to view its files, revealing thousands of images of what appeared to be, based on the names of the files, adult and some child pornography. An agent of the Bureau of Immigration and Customs Enforcement ("ICE") was called in, who asked the defendant to show him where these images were located on the computer.
On appeal of that decision, the grand jury revised its request to require the defendant to produce, not the password itself, but rather an unencrypted version of the Z drive. In re Grand Jury Subpoena to Boucher, 2009 WL 424718 at *2 (D.Vt. Feb. 19, 2009) (Boucher II). Because of the revision to the request, the district court denied the motion to quash. The court noted that "[w]here the existence and location of the documents are known to the government, no constitutional rights are touched, because these matters are a foregone conclusion," that is, they "add little or nothing to the sum total of the Government's information." Id. at *3 & *4 (quoting Fisher, 96 S.Ct. at 1581) (internal quotation marks omitted). Likewise, the defendant's production was not necessary to authenticate the drive because he had already admitted possession of the computer, and the government had agreed not to use his act of production as evidence of authentication. Id. at *4. Accord United States v. Gavegnano, 305 Fed.Appx. 954, 955-56 (4th Cir.2009) (where government independently proved that defendant was sole user and possessor of computer, defendant's revelation of password not subject to suppression).
There is little question here but that the government knows of the existence and location of the computer's files. The fact that it does not know the specific content of any specific documents is not a barrier to production. See Boucher II, 2009 WL 424718 at *3 (citing In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992) (United States v. Doe), 1 F.3d 87, 93 (2nd Cir.1993), cert. denied, 510 U.S. 1091, 114 S.Ct. 920, 127 L.Ed.2d 214 (1994).
Additionally, I find and conclude that the government has met its burden to show by a preponderance of the evidence that the Toshiba Satellite M305 laptop computer belongs to Ms. Fricosu, or, in the alternative, that she was its sole or primary user, who, in any event, can access the encrypted contents of that laptop computer. The uncontroverted evidence demonstrates that Ms. Fricosu acknowledged to Whatcott during their recorded phone conversation that she owned or had such a laptop computer, the contents of which were only accessible by entry of a password. Of the three laptop computers found and seized during the execution of the search warrant of Ms. Fricosu's residence, only one was encrypted, the Toshiba Satellite M305. That laptop computer was found in Ms. Fricosu's bedroom, and was identified as "RS.WORKGROUP.Ramona." None of defendant's countervailing arguments — the suggestions that the computer might have been moved during the search, that someone else may have randomly designated the computer account as "Ramona," or that the fact that the hard drive was imaged before it was read somehow undermines its validity or authenticity
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