NJ Appeals Court: Lower Court Mixed Up 4th And 5th Amendment And Either Way, Phone Passcodes Can Be Compelled

More case law on compelled passcode production and the Fifth Amendment has been generated by a New Jersey appeals court. Unfortunately, it doesn’t do anything to strengthen Fifth Amendment protections against compelled production.

And that’s largely because this court can’t. The state’s Supreme Court handed down a ruling in August 2020 that limited the “foregone conclusion” the government needed to reach before securing a court order demanding passcode production was limited to the device and the existence of a passcode, rather than offering supporting arguments about the presumed existence of criminal evidence on the device.

That case dealt with a crooked cop whose phones were seized during an investigation. After discussing some (still unaddressed) concerns about the Fifth Amendment’s inconsistent application in other cases that may protect people using passwords more than people using biometric features to unlock phones, the court said that, in this case, law enforcement knew what it needed to know to surmount the “foregone conclusion” barrier.

The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones.

It’s this case that’s specifically cited in this appeals court decision [PDF]. The lower court refused to grant the government’s motion to compel, citing its inability to prove the locked iPhone seized belonged to the suspect. It also said the search of the phone (which hasn’t occurred yet) raised additional Fourth Amendment concerns.

Here’s how everything started:

Det. Pancza and members of the Internet Crimes Against Children Task Force executed the three warrants at 6:00 a.m. on July 16, 2021, at defendant’s residence. Defendant was located in his locked bedroom. He was the only occupant of the room, and he refused to open the door. Ultimately, the officers forced entry into defendant’s bedroom.

During their search of defendant’s bedroom, officers located three electronic devices: a Samsung cell phone, an Asus laptop, and an Apple iPhone. The iPhone was found in a pull string bag hanging on the back of a computer chair.

In accordance with the search warrant, Detective Brian Migliorisi attempted to access the iPhone 7, but he was prevented from doing so because the iPhone was passcode protected. The only information Det. Migliorisi could retrieve from the iPhone was its association with the same iCloud email account from the cyber tips, the one containing defendant’s last name and first initial. Defendant was charged with third-degree endangering the welfare of children, N.J.S.A. 2C:24-4(b)(5)(b)(iii).

The lower court did not find these circumstances added up to proof of the defendant’s ownership of the iPhone.

The court denied the motion, concluding the State failed to establish defendant’s ownership of the iPhone and knowledge of the passcode. The court found that officers locating the iPhone in “a backpack” in “a bedroom” was insufficient to prove defendant’s ownership. The court also found “that the phone immediately being in the vicinity of the defendant at the time of the search” did not “conclusively demonstrate that . . . defendant own[ed] the phone.”

The appeals court disagrees. First, it points to the August 2020 Andrews decision, which limited the Fifth Amendment discussion to the government proving a passcode exists, the defendant “operates or controls” the device in question, and that entry of the passcode would allow investigators to access the device’s contents. From what it sees here, the government has everything it needs to utilize the “foregone conclusion” exception.

Further, it says the Fourth Amendment concerns about the proposed search have no bearing on this discussion because the search hasn’t been performed and the defendant never challenged the warrants utilized in this case. If the search is indeed determined to be overbroad, the defendant can challenge it then. But because no challenge to the probable cause basis was raised by the suspect, the lower court was wrong to bring Fourth Amendment analysis into a discussion dealing solely with compelled production.

The only standard being applied to compelled production was easily met here, the appeals court says.

The motion court found defendant was in the “vicinity” of the phone and concluded that this was insufficient to prove defendant’s ownership or operation of it. We disagree, as the court overlooked credible evidence in the record when making its findings. At the time of the search the phone was in defendant’s locked bedroom; he was the sole occupant and refused to let the police in. Significantly, the email address associated with the phone’s iCloud account incorporates defendant’s last name and first initial. These probative facts, which suggest that defendant owned and operated the iPhone, were omitted from the motion court’s analysis.

Any further appeal efforts within the state will be foreclosed by the state Supreme Court’s decision. To appeal this determination, the defendant will have to look to the top court in the land. That remains an option because this is a discussion about federal constitutional rights rather than limited to the protections granted by New Jersey’s constitution. But odds are slim this will be examined by the US Supreme Court. The Andrews case that set state precedent has already had its appeal effort rejected by SCOTUS. For the time being, it will remain pretty easy for New Jersey law enforcement to bypass the Fifth Amendment.