Reversed: Denial of The State’s Motion to Compel Disclosure of Defendant’s iPhone Passcode
Appellate Docket No.: A-1052-21
Decided April 18, 2022
Submitted by New Jersey New Jersey Criminal Lawyer, Jeffrey Hark
In a recent published decision, the Appellate Division reversed the denial of the State’s motion to compel disclosure of defendant’s iPhone passcode based on the misapplication of the foregone conclusion.
In C.J.L., Detective Gregory Pancza of the Bradley Beach police department received two cyber tips, one reporting the uploading of child sexual abuse/exploitation materials via Dropbox using an iCloud email account containing defendant’s last name and first initial, and the other reporting an image of child sexual abuse sent by way of an Instagram direct message. The detective investigated and learned that both tips were connected to defendant.
A Law Division judge authorized three search warrants – one each for defendant’s home, defendant’s car, and defendant’s person – finding sufficient probable cause supporting each search for, among other things, electronic devices which could contain evidence of endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a), or which could assist in identifying suspects or additional victims. The warrant judge also authorized an on-site search, or field preview, of any seized electronic devices.
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 7. 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 State filed a motion to compel defendant to produce the cell phone passcode. 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 State appealed, arguing the motion court erred in denying the state’s motion to compel the phone passcode.
The Appellate Division reversed the denial, finding the foregone conclusion required defendant’s disclosure of the passcode. The Court misapplied the foregone conclusion test, improperly requiring the State to prove that they were aware of the evidence on defendant’s phone already, when all that is required is the existence of the passcode, not the material on the phone.
The foregone conclusion test requires the State to demonstrate (1) the passcode’s existence, (2) the defendant’s possession and operation of the passcode-protected device, and (3) the passcode enables access to the cell phone’s contents. If the State proves these factors, the defendant is required to provide access to the phone.
Because it is not difficult for the State to prove these factors, defense in these cases lies with challenging the grounds of the search that led to the State gaining access to the phone. This could be challenging search warrants, warrantless searches, or wiretaps.
If you have been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. Failing to hire a defense attorney and putting your faith in a public defender could give you the same result as the defendant in this case!
At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.
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