Following a 2018 decision from the Appellate Division, the Supreme Court of New Jersey has held that a criminal defendant can be compelled to disclose cell phone passcodes.
On the facts of this case before the Court, Defendant Robert Andrews had been indicted In June 2016 for multiple offenses related to alleged drug trafficking in Newark, New Jersey. Andrews had previously surrendered his iPhones to police but did not consent to any search of the phones. Although the police eventually obtained search warrants for the phones due to alleged evidence of incriminating correspondence with drug traffickers, Andrews nonetheless refused to provide the passcodes necessary to execute those searches. The State therefore moved to compel Andrews to disclose the iPhone passcodes, and the trial court agreed, while limiting the State’s access to only certain programs and applications within the iPhones.
What the Supreme Court Decided
On appeal, the Appellate Division upheld the trial court’s decision, holding that the compelled disclosure of the passcodes is not barred by the Fifth Amendment as self-incriminating testimony because the act of disclosing such a password itself did “not convey any implicit factual assertions about the ‘existence,’ or ‘authenticity’ of the data on the device.”
Indeed, there is a privilege against self-incrimination can within the Fifth Amendment, providing that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” While facially the Amendment protects against only self-incriminating testimony, it also protects more broadly against having to produce documents or other materials where the very “act of production” could be seen as incriminating. For example, a person may possess documents showing knowledge of a fraud or participation in a conspiracy, and by producing those documents he or she would be essentially admitting to part of the crime.
An exception to this “act of production” privilege, however, exists where the government can show—with reasonable particularity, of course—that it already knows about the existence of the evidence and the suspect’s control of it, a concept known as the “foregone conclusion” doctrine. Thus, even production of a testimonial nature can be compelled if the Government can demonstrate it already knows the information that act will reveal, such as the existence of the requested documents, their authenticity, and the defendant’s possession of and control over them.
Backing Up their Decision
The Supreme Court relied on this foregone conclusion doctrine to hold, with “little difficulty,” that the passcode—albeit “minimal[ly]” testimonial—could nonetheless be compelled under this “foregone conclusion” doctrine. This is because it was undeniable that the passcodes existed, that the defendant knew those passcodes, and that they would be essentially “self-authenticating” by allowing access to the phone. Indeed, the Court parsed the issue very finely and concluded that the doctrine applied only to the passcode itself, and not the phone’s overall contents, concluding that the heart of the issue was “one of surrender, not testimony.”
It should be noted that this perhaps was not a surprising conclusion insofar as the Court observed that other courts have held that compelled State access to electronic devices through the use of biometric features—such as fingerprints, in particular—does not violate the Fifth Amendment. Of course, while conceptually different, this gets to essentially the same result.
Settled for Today, But Perhaps Not for All Time
The dissenting Justice argued that—in addition to questioning the ongoing viability of the forgone conclusion doctrine—this situation is more akin to providing the combination to a safe, the very example that the United States Supreme Court has used, more than once, as a step too far in ordering a defendant to assist in his or her own prosecution. Instead, the dissent
[W]ould adhere to the [Supreme] Court’s bright line: the contents of one’s mind are not available for use by the government in its effort to prosecute an individual. The private thoughts, ideas, and information retained in one’s mind are not subject to compelled recollection and disgorgement for use in a person’s own prosecution. That practice, reminiscent of an inquisition, was abolished by the Fifth Amendment’s inclusion in the Constitution and was as certainly forbidden through the common law of this state from its earliest times.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney. However, if you have further questions, or have additional questions about a criminal matter, please contact us for a free consultation with a criminal law attorney.