In an extremely controversial 4-3 opinion, the New Jersey Supreme Court upheld trial and Appellate Division rulings compelling a defendant to provide his cellphone passcode pursuant to a search warrant. The defendant was an Essex County Sheriff’s Officer accused of providing a drug dealer confidential information about an investigation into the dealer and his co-conspirators. The drug dealer gave evidence establishing that the sheriff’s officer provided him information about undercover surveillance of his vehicle and phones, as well as other case related information. Law enforcement confirmed there were numerous texts and calls between the sheriff’s officer and the drug dealer. Law enforcement obtained a search warrant for the officer’s cellphones, but were unable to access them without the defendant’s passcodes or PINs.

The State moved to compel the officer to disclose the passcodes to his two iPhones. The defendant opposed the motion, claiming that compelled disclosure of his passcodes violated his protections against self-incrimination afforded by New Jersey’s common law and statutes, and the Fifth Amendment to the United States Constitution. The trial court rejected those arguments, ruling that “the act of providing a PIN, password, or passcode is not a testimonial act where the Fifth Amendment or New Jersey common and statutory law affords protection.” The court reasoned that “[a]llowing the State to access the call logs and text messages on [the] iPhones will add little to nothing to the aggregate of the Government’s information.” Further, “any testimonial act contained in the act of providing the PIN or passcode is a foregone conclusion because the State has established with reasonable particularity that it already knows that (1) the evidence sought exists, (2) the evidence was in the possession of the accused, and (3) the evidence is authentic.”

The trial court limited access on the cellphones “to that which is contained within (1) the ‘Phone’ icon and application on the two iPhones, and (2) the ‘Messages’ icon and/or text messaging applications used by the defendant during his communications with the gang member. The court also ordered that the search be performed by the State, in camera, in the presence of defense counsel and the court, with the court reviewing the PIN or passcode prior to its disclosure to the State.

In upholding the lower courts’ decisions, the Supreme Court agreed that compelled production of the passcodes fell within the “foregone conclusion” exception. The Court found the State demonstrated the existence of passcodes and the defendant’s possession and operation of the cellphones. The passcodes’ self-authenticating nature rendered the issue one of surrender, not testimony. Thus, the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination was applicable.

The Court concluded that neither the Fifth Amendment’s privilege against self-incrimination nor New Jersey’s common law and statutory protections protect a criminal defendant from compelled disclosure of the passcodes to his cellphones.

In a strongly worded dissent Justice LaVecchia wrote in part:

In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts — the contents of our minds — from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.

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? In my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law.

The Court’s outcome deviates from steadfast past principles protective of a defendant’s personal autonomy in the face of governmental compulsion in a criminal matter. Those same principles should apply even in the face of the latest challenge presented by new technology.

The Court’s decision here is contrary to other state and federal courts who have examined this very issue, making this matter and the overarching issue ripe for the review of the United States Supreme Court. Until such a review is conducted by the United States Supreme Court, defense counsel must advise their clients that they will be held in contempt for failure to reveal their passcodes when a validly issued search warrant is obtained.

This is an ever-developing and expanding area of law. It is important to hire well-versed and adept counsel when dealing with law enforcement’s intrusion into your personal data. We at Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.