Article written by Robert M. Perry, Esq
State v. Andrews: NJ Supreme Court Rules Law Enforcement Can Force You to Give Up Your Cell Phone Passcode
Do not do anything on your phone you wouldn’t want a jury or a judge to see in open Court.
On August 10, 2020, a divided New Jersey Supreme Court announced the long-awaited ruling in State v. Andrews, a case that has significant repercussions in privacy concerns and Constitutional protections. The sole issue was whether a court can order a defendant to produce their cell phone passcode when law enforcement cannot access the phone themselves. This issue had never been addressed by the New Jersey Supreme Court and generated strong opposition from the ACLU, the Association of Criminal Defense Lawyers, and various other entities.
Robert Andrews was a Sheriff’s Officer who is accused of tipping off a drug suspect that police were performing wiretaps and other confidential information related to the investigation. The suspect confirmed that Andrews was assisting him by producing cell phone records from his phone that corroborated his claims. The police obtained a search warrant for Andrews’ phone but were unable to access the iPhone without the passcode. Prosecutors then obtained a Court Order for Andrews to provide them with the passcode. Andrews objected, arguing that the act of providing his passcode was a violation of the protections against self-incrimination in the United States Constitution and New Jersey law.
The New Jersey Supreme Court disagreed and ordered the production of the passcodes, largely relying upon the “Foregone Conclusion” exception to the Fifth Amendment protection against self-incrimination. In sum: The Court concluded that the Fifth Amendment only protects compelled communication that is self-incriminating and the passcodes themselves do not incriminate a defendant; they only provide a means of access to the information on the phone. The Court ruled that neither the Federal Constitution nor the New Jersey State Constitution prohibits government compelled production of the passcodes. There are seven Justices on the New Jersey Supreme Court and majority rules. The vote was 4-3.
The short version: New Jersey can now force you to open your own cell phone for the police.
The longer version is more complicated and there is a lot to unpack here.
The Case Will Likely Head to the U.S. Supreme Court
The case is almost certain to be appealed to the United States Supreme Court. The Supreme Court does not have to address every case that is appealed (in fact they address a very small percentage). However, given the significance of the issue this case and/or others like it will probably be addressed by the Court. As the New Jersey decision noted, different Courts in different States have come to different conclusions. There is no national consensus and the United States Supreme Court has not directly addressed this issue. Given the dramatic increase in cell phone usage and its role in criminal investigations and prosecutions, it is hard to imagine that this issue will not be settled by the highest court in the Country at some point in the future. If that Court disagrees with the New Jersey Supreme Court it would overturn the Andrews case. However, it is difficult if not impossible to predict what the United States Supreme Court will decide so we will likely have to wait and see.
Legal Precedent in State v. Andrews
The precedent (prior United States Supreme Court cases) that the New Jersey Supreme Court relied upon largely pertained the production of documents that were already in existence. One of the most recent United States Supreme Court cases even explicitly stated that there is a difference between forcing someone to produce the key to a lockbox as opposed to providing the combination of a safe. The distinction being that the production of a combination to a safe forces the production of the contents of one’s mind whereas the production of a key pertains to an object that already exists. The decision also errs on the side of the Government rather than individual rights. In a strongly worded dissent, Justice LaVecchia noted, “[i]n my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law.”
What Happens If a Suspect “Forgets” Their Passcode or Refuses to Disclose It?
If a suspect “forgets” or refuses to disclose the passcode to their phone there is the issue of enforceability. What happens when a defendant claims to have forgotten their passcode? What about a defendant who simply defies an order and refuses to provide their passcode? The Judge can find that a defendant is in Contempt of a Court Order. Here it gets tricky.
Contempt of a Court Order is (at most) a fourth-degree crime in New Jersey, punishable by up to 18 months in New Jersey State Prison. Obstructing the Administration of Law is similarly a lower graded offense. However, for some defendants that may be worth it. For example, if the contents of their cell phone would expose them to prison sentences up to twenty (20) years, the math is pretty obvious.
There is a mechanism for Courts to indefinitely detain a person for failing to testify or produce evidence, but to utilize that mechanism immunity must first be granted and the person must have enjoyed a Fifth Amendment protection to refuse to answer. N.J.S.A. 2A:81-17.3. It would be disingenuous for this mechanism to be used against a defendant who refuses to produce the passcode to their cell phone because the New Jersey Supreme Court just ruled that the defendant does not have Fifth Amendment protection in that context.
However, the Courts may utilize the tool of civil contempt, which arguably could justify indefinite incarceration until a defendant “cures” themselves of the contempt. It is anticipated that prosecutors and possibly the Courts will make attempts to indefinitely incarcerate defendants who refuse to comply with an Order.
Bottom line: It is unclear how the Courts will deal with a defendant or suspect who refuses to produce a cell phone passcode, but for now we can safely assume that all efforts will be made to force compliance.
For Now, This is The Law
Regardless, for now, the New Jersey Supreme Court has spoken and a defendant can be compelled to produce their cell phone passcode. As a result, everyone should be mindful that what we type on our phone may someday be in the hands of a police officer or in front of a jury. Perhaps even more significantly, this decision represents a shift away from individual privacy rights and Constitutional protections and toward increased governmental authority. Regardless, this is an issue that should concern us all.
Contact Rosenberg | Perry & Associates
If you have questions about your legal rights in New Jersey or are seeking criminal defense for an arrest, drug court, or criminal charges such as a DUI or Restraining Order, contact the attorneys at Rosenberg Perry & Associates. We provide free consultations and are happy to help.
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