NORTHAMPTON — Hampshire Superior Court Judge Charles Groce III is considering whether the government can legally compel a 56-year-old Belchertown man accused of shooting and killing his wife to unlock his cellphone.
Sporting a bright orange jumpsuit with shackles around his ankles, Mark Opper, the 56-year-old man accused of shooting his wife, Diane Opper, multiple times inside their Belchertown home in March, sat alongside his attorney Jonah Goldsmith at a motion hearing Thursday afternoon.
Deputy District Attorney Jennifer Suhl, representing the commonwealth, made her case for filing a motion to compel Opper to unlock his iPhone 17 to help execute the state’s warrant to search it.
“The facts indicate that not only does this phone belong to the defendant, but that he knows the passcode to this phone — that really is the issue for your honor’s determination,” Suhl told the judge. “[Opper] called 911, reported that he had killed his wife from this device. The device was left in the house when he came out of the house and he was arrested, so it was not on his person.”
Goldsmith, however, argued that the commonwealth could not meet the high burden of evidence necessary to prove that his client knows, and can recall, his phone passcode. He argued that in the five months since Opper’s arrest, he has not had any access to his phone and might have reasonably forgotten the passcode.
The attorney provided additional examples as to reasons an individual might forget, or be unable to recall, his or her password. He noted that some people frequently change their passwords, have multiple devices and struggle to keep track of all their passwords or struggle with memory or recall.
Either way, Goldsmith argued, it’s up to the commonwealth, not the defendant, to prove that he remembers and can recall the password.
“The complexity of the PIN used, the fact that some people in this day and age use autofill or Face ID, they don’t even touch the phone to input, the number of devices that everyday people use — with those devices come different passwords,” he said. “This is what we would consider a significant step in ordering Mr. Opper to put information in that could potentially be incriminating to him.”
The prosecution further argued that even if Opper could not recall his passcode, there is reasonable belief that “muscle memory” gained from previous times he had unlocked his phone would allow him to open it if it was placed in his hands.
Opper was arrested on charges of murder and assault and battery on a family or household member on March 27 after police found his wife dead on the floor of their home at Summer Hill Estates, 111 Daniel Shays Highway, with what appeared to be “multiple gunshot wounds to her torso,” according to court documents.
The commonwealth presented the case to a Hampshire County grand jury in May, which returned an indictment and moved the matter to Superior Court, where Opper pleaded not guilty in June and was held without the right to bail.
A statement of facts compiled by Belchertown and Massachusetts State Police states that Opper called 911 to report that he had “killed [his] wife.”
When Belchertown Detective Sgt. Robert Mann entered the residence, he saw a “dark-colored pistol with the magazine removed” and an “unfired bullet next to it” on the dining room table, he wrote in the statement of facts.
“I observed several bullet casings on the ground in the living room,” he wrote. “These casings were approximately 10 feet from where Diane was found… Given the number of gunshot wounds Diane sustained and their concentration around her torso and arms, investigators believe Mark Opper intentionally shot his wife with the intent to murder her.”
Groce took the motion under advisement.
