On November 15, 2018, the Superior Court of New Jersey Appellate Division ruled in State v. Robert Andrews (A-0291-17T4) that criminal suspects can be made to provide police with necessary passcodes and passwords in order to allow police to search their electronic devices pursuant to a valid search warrant. The Appellate Division ruled that such a requirement is not a violation of an individual’s right against self-incrimination. Instead—the Court reasoned—by compelling such information, the suspect is merely telling the government what it already knows: that the suspect controlled the device, that access to the device is limited through a password or passcode, and that the suspect knows that password or passcode.
The privilege against self-incrimination can be found within the Fifth Amendment, which provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” On its face, the Amendment protects simply against being compelled to provide self-incriminating testimony. Yet, more broadly, the Amendment also protects against having to produce documents or other materials where the very “act of production” itself could be seen as incriminating. This makes sense: a person may, for example, possess documents that might show knowledge of a fraud or participation in a conspiracy, and the very production of such documents would essentially amount to an admission of an element of the offense. This “act of production” privilege, however, does not apply where the government can show—with reasonable particularity—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.
In this case, the Appellate Division ruled that iPhone passcodes are generally such “foregone conclusions.” Specifically, wrote the court:
The act of producing the passcodes has testimonial aspects because defendant is acknowledging ownership, possession, and control of the devices. He is also acknowledging he has the ability to access the contents of the phone. However, by producing the passcodes, defendant is not implicitly conveying any information the State does not already possess. Defendant is not telling the government something it does not already know. Therefore, the implicit facts conveyed by the act of producing the passcodes is a “foregone conclusion” and compelled disclosure of the passcodes does not violate defendant’s Fifth Amendment right against self-incrimination.
In other words, by producing the passcodes, Andrews would not be telling the police anything they didn’t already know; namely, that the phones belonged to him and he had access to them. (Of course, there is no Fifth Amendment privilege to the potentially incriminating data stored on the phones. Indeed, statements are not deemed privileged simply because they might ultimately lead to incriminating evidence, and are not themselves incriminating.)
On the facts of this case before the Court, 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 iPhone 5s and iPhone 6 Plus to police, but did not consent to a search of the two phones. Although the police later obtained search warrants for the phones as there was evidence that Andrews had used his iPhones to correspond with the main target of the drug trafficking investigation, Andrews refused to provide the passcodes necessary to execute those searches. The State accordingly 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.
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 explained, the Appellate Division agreed that “the act of disclosing the passcodes to defendant’s phones does not convey any implicit factual assertions about the ‘existence,’ or ‘authenticity’ of the data on the device.”
Although the Third Circuit had addressed this essential question recently in United States v. Apple MacPro Computer, 851 F.3d 238 (3d Cir. 2017), it is apparently now effectively settled for New Jersey courts, unless and until the matter is taken up before the Supreme Court of New Jersey.
The Appellate Division also rejected the argument that the common law privilege against self-incrimination applied, noting that there was “no basis for affording . . . greater protections against self-incrimination than those provided by the Fifth Amendment.” Similarly, the Court found—under N.J.R.E. 503(b)—that the State held “a superior right to possession of the passcodes” in having established the defendant’s possession of the phones, and probable cause that the devices contained evidence of criminality.
Interestingly, however, the Appellate Division refused to address the theory—raised by amicus curiae—that “that electronically-stored information should be subjected to an enhanced degree of scrutiny,” as the parties did not specifically raise the issue on appeal. Perhaps an issue left for another day.
At the end of the day, this ruling provides the State additional resources to compel access to the vast amounts of data stored within an individual’s smartphones. No matter how secure a phone can be engineered, you can potentially be made to unlock it upon the government’s lawful request.
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.