Prosecutors can force defendants to give up cellphone passcodes, NJ Supreme Court rulesThe New Jersey Supreme Court ruled Monday that a criminal defendant can be compelled to reveal his cellphone passcode to investigators, rejecting the argument that such a move violates the right against self-incrimination guaranteed by the Fifth Amendment of the U.S. Constitution.In a closely watched case, the state's top court narrowly sided with prosecutors seeking access to the phone data of a former Essex County sheriff's officer accused of secretly working with a Bloods street gang. The court ruled 4-3, in a case that could have far-reaching implications for criminal investigations in New Jersey.
The ruling requires Robert Andrews, the former officer, to turn over passcodes from two phones to investigators. Andrews is charged with multiple counts of official misconduct, hindering apprehension and obstruction for allegedly tipping off an alleged drug dealer, Quincy Lowery, that he was the target of a narcotics investigation before his arrest in 2015. When questioned by the Essex County Prosecutor's Office, Lowery allegedly said he had exchanged numerous phone calls and text messages with Andrews about the investigation. Authorities identified 114 telephone exchanges and secured a search warrant, but Andrews argued that giving up the codes amounted to being compelled to offer "testimony" that might incriminate him, a violation of both his Fifth Amendment rights and protections guaranteed by New Jersey common law.
The state argued that even if the passcodes were considered testimony, Andrews should be required to provide them under a body of case law known as the "foregone conclusion exception" to the Fifth Amendment. The Prosecutor's Office said Lowery told investigators about the text messages, which it used as a basis to obtain the search warrant. Thus, the texts were a "foregone conclusion" — they were known to exist — and the only thing stopping the state from seeing those potential pieces of evidence was Andrews, who knew the passcode.
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Hearing:Tensions boil over at hearing for NJ police lieutenant accused of sleeping on the job'My God, what have we done': NJ men who flew the historic mission, 75 years after HiroshimaJustice Lee A. Solomon, writing for the majority, said that "the issue is one of surrender, not testimony, and that the foregone conclusion exemption to the Fifth Amendment thus applies." The state knew of the text messages and had a right to them, he said. "This was no fishing expedition," Solomon wrote. The justice said the passcode itself had “minimal" value as evidence; it merely indicates ownership of the cellphone and the information that is stored on it. The passcode isn't even a clue that a crime has been committed, Solomon said in his ruling.
The decision upheld earlier rulings by lower courts. Joining Solmon in the majority were Justices Stuart Rabner, Anne M. Patterson and Faustino Fernandez-Vina. The decision brought a sharp dissent from Justice Jaynee LaVecchia, who wrote the minority opinion joined by Justices Barry T. Albin and Walter F. Timpone. "We are at a crossroads in our law. Will we allow law enforcement — and our courts as their collaborators — to compel a defendant to disgorge undisclosed private thoughts — presumably memorized numbers or letters — so that the government can obtain access to encrypted smartphones?" LaVecchia wrote. "In my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law."
Andrews' attorney, Charles J. Sciarra of Clifton, warned that the decision was a huge expansion of state power.
'Major defeat'“The court’s decision is a major defeat to the United States Constitution when it is already under substantial attack," Sciarra said in an emailed statement.
"Forget alleged criminal conduct: It’s time to rethink whether you should keep anything simply private or personal on a personal electronic device because if the government wants it, they can now get it," he said. "If you are in a car accident they can go through your whole phone to see if you were a distracted driver.”
Lowery, the target of the drug probe, told investigators that he knew Andrews for about a year — though only by the nickname "Bolo" — and that they were members of the same motorcycle club. Lowery told investigators that Andrews "self-identified as a member of the Grape Street Crips,” a criminal gang, according to court papers, although news reports at the time said Lowery led a rival gang, the Bloods.Andrews let Lowery use a car and a motorcycle registered in his name, and the two men regularly communicated through the FaceTime app on their cellphones, court records show. Lowery said that during one of those communications, Andrews told him to get rid of his cellphones because federal authorities were doing “wire taps” after the arrest of several Crips.
Lowery also said that in one of the texts, Andrews advised him to put his car on a lift to see if investigators had attached a tracking device, the ruling said.Megan Iorio, counsel for the Washington-based Electronic Privacy Information Center, which filed a brief on behalf of Andrews, said the ruling is a mixed bag. It compels Andrews to open his cellphone to investigators, but they still need a search warrant.
“The court emphasized that the search warrant in this case was significantly narrowed by a trial court order, and that decision did not give law enforcement license to conduct a ‘fishing expedition,’ " she said. “Law enforcement will find it difficult to use Andrews to compel decryption of the broad contents of a phone.”
Richard Cowen covers Superior Court in Passaic County for NorthJersey.com. For unlimited access to the most important news from criminal trials to local lawsuits and insightful analysis, please subscribe or activate your digital account today.