Jailed ex-sergeant loses contempt case over device passwords

PHILADELPHIA >> A U.S. appeals court on Monday rejected a fired police sergeant’s stance that he has a Fifth Amendment right not to turn over computer passwords in a child porn investigation.

Former Philadelphia officer Francis Rawls has been jailed for contempt for 18 months amid his appeal. He has not been charged with a crime.

The U.S. Third Circuit Court ruling Monday noted that police already had forensic evidence that he had child pornography stored on his computer hard drive. Therefore, the court said, Rawls would not be incriminating himself by supplying a password to help police access the encrypted material.

A lawyer with the Electronic Frontier Foundation, who argued the case last year, disagreed.

“You’re being compelled to provide the contents of your mind. That is squarely prohibited by the Fifth Amendment,” Senior Staff Attorney Mark Rumold said. “Law enforcement is asking (him) to produce evidence that they don’t have to aid in his conviction.”

Rawls, 38, is expected to remain behind bars until he decides to cooperate, Assistant U.S. Attorney Michelle Rotella said. He is collecting a police pension, she said, and being held in Manhattan as a precaution given his years on the Philadelphia force.

Rawls came to the attention of suburban Philadelphia police during a routine probe of online pornography. They seized his computers and cellphone in 2015 but could not unlock them. Rawls later spent hours in a police laboratory, unlocking a new phone he had gotten but claiming, as he tried different passwords, that he couldn’t recall the one to access the encrypted material. The phone contained both adult pornography and suggestive images of a 6-year-old girl, the court said.

Authorities, citing the “foregone conclusion exception” to the Fifth Amendment, argued that Rawls could not invoke his right to self-incrimination because police already had evidence of a crime. The 3rd Circuit panel agreed, upholding a lower court decision.

The Atlanta-based 11th Circuit — in a case where police did not have other evidence — has said that suspect could not be compelled to give up passwords. Rumold questioned whether Rawls, more than a year later, even remembers his.

“It’s quite possible he remains in jail for failing to comply with an order he can’t comply with,” he said.

However, Rotella said the court did not find that theory credible.

“The court has found ... that he’s in contempt, that he can remember, and that he’s choosing not to give the password,” she said. “He’ll just be in prison until he decides he’s going to cooperate.”