Important Facts from State v. Andrews

Recently, the Supreme Court of New Jersey in State v. Andrews, 243 N.J. 447, 456 (2020), addressed an issue of first impression, that is, “whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination.”  The Court, in a majority opinion written by Justice Solomon, held that the disclosure of the passcodes was not protected and could be compelled.  Id. at 456.

In Andrews, Quincy Lowery, the target of a state narcotics investigation informed the detectives that the defendant Robert Andrews, a law enforcement officer, had provided him with information about the investigation and gave him advice to avoid criminal exposure.  Ibid.  Lowery gave statements to investigators, confirmed in part by his cellphone, about photographs, cellphone calls, text message exchanges, and conversations with the defendant during which the defendant recommended that Lowery “remove a tracking device that may have been placed on his car by the police; recommended that the target discard cellphones he and his cohorts used; and revealed the identity of an undercover officer and an undercover police vehicle.”  Ibid.  The State obtained an arrest warrant for the defendant and search warrants for his iPhones, which were seized.  Ibid.  The State moved for an order compelling defendant to disclose the passcodes to his iPhones because the contents of the iPhones were locked and inaccessible to its Telephone Intelligence Unit without the passcodes.  Ibid.

In opposing the motion, the defendant argued that “the United States Constitution and New Jersey’s common law and statutory protections against compelled self-incrimination protected his disclosure of the passcodes.”  Ibid.  The Trial Court rejected the defendant’s arguments, “ruling that the act of providing a PIN, password, or passcode is not a testimonial act where the Fifth Amendment or New Jersey common and statutory law affords protection.”  Id. at 460.   Nonetheless, the trial court limited access to the defendant’s cellphones to that which is contained within (1) the ‘Phone’ icon and application on defendant’s two iPhones and (2) the ‘Messages’ icon and/or text messaging applications used by the defendant during his conversation with Lowery.  Ibid.  The trial court also ordered that the search be performed by the State, in camera, in the presence of defense counsel.  Ibid.  The Appellate Division affirmed and acknowledged the defendant’s Fifth Amendment concerns but held that the only testimonial aspects of providing the passcodes pertained to the ownership, control, use, and ability to access the phones, which was already known to the State, and therefore the “foregone conclusion” exception to the “act of production” doctrine applied.  Id. at 461.

Important Takeaways from State v. Andrews

The Supreme Court began its analysis by setting forth that “whether defendant can be compelled to disclose the passcodes to his cellphones seized by law enforcement pursuant to a lawfully issued search warrant — is ultimately answered by analyzing federal and state protections against compelled self-incrimination.”  Id. at 463-64.

“The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals’ rights ‘to be secure in their persons, houses, papers, and effects’ by requiring that search warrants be ‘supported by oath or affirmation’ and describe with particularity the places subject to search and people or things subject to seizure.”  Id. at 464.  “Searches executed pursuant to warrants compliant with those requirements are presumptively valid.”  Ibid.   The Court held that the State was permitted to access the phones’ contents, as limited by the trial court’s order, in the same way that the State may survey a home, vehicle, or other place that is the subject of a search warrant.”  Id. at 464-65.

A lawful seizure does not allow compelled disclosure of facts otherwise protected by the Fifth Amendment.  Id. at 465.  However, the Fifth Amendment right against self-incrimination “applies only when the accused is compelled to make a testimonial communication that is incriminating.”  Ibid. (quoting Fisher v. United States, 425 U.S. 391, 408 (1976)).  “Accordingly, criminal defendants may lawfully be compelled to display their physical characteristics and commit physical acts because the display of physical characteristics is not coterminous with communications that relay facts.”  Id. at 466.  For example, a criminal defendant may be compelled to create handwriting and voice samples, provide blood, hair, and saliva samples, and stand in a lineup.  Ibid.

The Court ruled that neither the contents of the phones, which were voluntary not compelled, communications, nor the phones themselves, which were physical objects not testimonial communications, were protected by the Fifth Amendment privilege against self-incrimination.  Ibid.  However, access to the passcodes was a testimonial act of production protected by the Fifth Amendment.  Ibid.  Access to the defendant’s cellphones’ contents depended upon entry of their passcodes–a “cellphone’s passcode is analogous to the combination to a safe, not a key.  Communicating or entering a passcode requires facts contained within the holder’s mind — the numbers, letters, or symbols composing the passcode.” Ibid.

Nonetheless, the Court found that the production of the passcodes could be compelled under the doctrine of foregone conclusion.  Id. at 480.  Under that doctrine “production that is of a testimonial nature can be compelled if the Government can demonstrate it already knows the information that act will reveal — if, in other words, the existence of the requested documents, their authenticity, and the defendant’s possession of and control over them — are a ‘foregone conclusion.’”  Id. at 471.  The doctrine applied because the  State established that the passcodes existed, the cellphones were in the defendant’s possession when seized, he owned and operated the cellphones, and the passcodes self-authenticate by providing access to the cellphones’ contents.  Id. at 480-81.   Therefore, the Court held that the Fifth Amendment did not protect the defendant from compelled disclosure of the passcodes to his cellphones, and that New Jersey’s common law and statutory protections against compelled self-incrimination did not apply.  Id. at 481-85.

The Importance of Working with an Experienced Criminal Defense Attorney

Given that criminal law is constantly changing in response to advances in technology, it is imperative that you work with an experienced Criminal Defense attorney.  By doing so, you will have a seasoned adviser that will be monitoring the rapid development of new decisions that are relevant to your case.

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