State v. Andrews
457 N.J. Super. 14, 197 A.3d 200 (2018)
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Rule of Law:
The compelled disclosure of a cellphone passcode does not violate the Fifth Amendment privilege against self-incrimination if the State can demonstrate with reasonable particularity its prior knowledge of the existence of the evidence, the defendant's possession and control of that evidence, and its authenticity, thereby making the testimonial aspects of the production a 'foregone conclusion.'
Facts:
- In May and June 2015, an Essex County Prosecutor's Office task force was investigating Quincy Lowery for suspected narcotics trafficking.
- During surveillance, officers saw Lowery operating a motorcycle and a Jeep that were both registered in the name of Robert Andrews, an Essex County Sheriff's Officer.
- On June 30, 2015, Lowery was arrested and gave a statement alleging that Andrews, known as 'Bolo,' had helped him conceal his drug-trafficking activities.
- Lowery claimed Andrews warned him about a wiretap, advised him to discard his phone, confirmed a suspected undercover vehicle's license plate belonged to the county, and suggested checking his vehicle for a GPS device.
- Lowery's phone contained a text message to Andrews showing a picture of the license plate of a surveillance vehicle used by the task force.
- On the night of Lowery's arrest, Andrews was confronted by Internal Affairs and surrendered his two iPhones but refused to consent to a search or provide the passcodes.
Procedural Posture:
- An Essex County grand jury indicted Robert Andrews on six counts, including official misconduct and hindering apprehension.
- The State filed a motion in the trial court (Law Division) to compel Andrews to disclose the passcodes to his two iPhones.
- The trial court granted the State's motion, ordering Andrews to disclose the passcodes under specific, limited conditions.
- Andrews filed a motion seeking leave to appeal the trial court's order to the intermediate appellate court.
- The intermediate appellate court initially denied the motion.
- Andrews then sought leave to appeal from the New Jersey Supreme Court.
- The Supreme Court granted the motion and summarily remanded the case to the intermediate appellate court for consideration on the merits.
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Issue:
Does a court order compelling a defendant to disclose the passcodes to his lawfully seized cellphones violate his Fifth Amendment right against self-incrimination?
Opinions:
Majority - Yannotti, P.J.A.D.
No. A court order compelling a defendant to disclose his cellphone passcodes does not violate his Fifth Amendment right against self-incrimination when the testimonial aspects of the act of production are a 'foregone conclusion.' The Fifth Amendment protects against compelled 'testimonial' communication. While the act of producing a passcode is testimonial because it implicitly communicates that the defendant knows the passcode and has control over the device, this communication is not protected if the information it reveals is already known by the government. This is known as the 'foregone conclusion' exception, established in Fisher v. United States. For this exception to apply, the State must prove with reasonable particularity that it already knows: (1) the evidence exists, (2) the defendant possesses or controls it, and (3) it is authentic. Here, the State has physical possession of the iPhones, so their existence is known. The State has also established Andrews's possession and control of the devices, as they are registered to him and he surrendered them to law enforcement. Therefore, compelling Andrews to provide the passcodes adds 'little or nothing to the sum total of the Government's information.' The court also held that New Jersey's broader state-law privilege against self-incrimination does not preclude the order, as the valid search warrants give the State a 'superior right to possession' of the passcodes.
Analysis:
This decision solidifies the application of the 'foregone conclusion' doctrine to the modern challenge of encrypted digital devices. By treating the passcode as a key to unlock lawfully seized evidence rather than a testimonial statement in itself, the court provides a significant tool for law enforcement to bypass digital encryption. This ruling aligns New Jersey with a growing number of jurisdictions that prioritize prosecutorial needs over the testimonial aspects of producing passcodes, provided the government has strong, pre-existing evidence of ownership and control. The case sets a precedent that will likely make it more difficult for defendants to shield incriminating digital evidence behind passcode protection in future criminal investigations.
