In Re Matter of State’s Application to Compel

M.S. to Provide Passcode

Appellate Docket No.: A-4509-18T2

Decided September 11, 2020

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In a recent unpublished decision, the Appellate Division reviewed whether the requirement of a defendant to turnover his passcode to his cell phone constituted a violation of the 5th Amendment right against self-incrimination.

In M.S., Sally has struggled with depression and has attempted suicide on several occasions. When she was sixteen, an emergency medical technician (EMT) squad rendered assistance to Sally after one of her suicide attempts. Thereafter, Sally befriended some of the members of the EMT squad, including Max.

At that time, Max was thirty-two years old, worked as a police officer, and volunteered with the EMT squad. Max and Sally began communicating with each other using social media platforms such as Instagram and Snapchat. While Sally was a minor, the communications allegedly became sexual in nature. Based on information provided by Sally, the State believes that Max and Sally sent each other pictures and videos of themselves naked.

Snapchat videos and pictures are designed to delete after viewing unless the receiving party takes a screenshot. When a receiving party takes a screenshot, the sending party receives a notification. Sally gave the State consent to search her cell phone and the State observed screenshots of a Snapchat video sent to Sally by Max which, according to Sally, displayed Max’s penis. The State also represents that it discovered images of Max and Sally kissing.

Sally has also told the State that in December 2017, when she was seventeen years old, she and Max engaged in sexual intercourse multiple times. Sally ended the relationship in April 2018. Thereafter, Sally and her aunt, who is her guardian, reported the relationship to the police and Sally obtained a temporary restraining order (TRO) against Max.

The police served the TRO on Max and seized his cell phone, along with firearms and a firearm purchase identification card. Relying on the information provided by Sally, the State believes Max’s cell phone holds evidence of criminal activity, including the crime of endangering the welfare of a child, N.J.S.A. 2C:24(a)(1).

The State applied for and obtained a search warrant and a data communication warrant to access the information in Max’s cell phone. When the State attempted to access the cell phone, however, it discovered that the phone was locked, and a passcode was needed to open the phone. Max declined to provide the passcode voluntarily.

In granting the State’s application, the trial court relied on our decision in State v. Andrews, 457 N.J. Super. 14, 18 (App. Div. 2018), which affirmed an order compelling a defendant to disclose the passcodes to his two iPhones. The trial court ruled that Max’s Fifth Amendment rights would not be violated by compelling the passcode’s production because the State established the requirements under the foregone conclusion doctrine. Under that doctrine, even testimonial conduct will not be protected by the Fifth Amendment if the State can demonstrate it already knows the information the act will reveal. Thus, the trial court ordered Max to provide the State with the passcode.

Max appealed and the Appellate Division affirmed on the same rationale, relying on State v. Andrews.

In this case, the Court found that the fact that there was a valid search warrant for the contents of defendant’s phone, and the State knew what the cell phone contained, was all a foregone conclusion the information they sought existed and compelling the defendant to turn over his cell phone passcode was just an act of surrender and not self-incriminating statement.

This case is important, as your phone can contain your entire life.  Ensuring the State cannot access the privacy of your phone can be vital to a criminal defense.  This requires your attorney to raise the appropriate objection regarding the contents of the phone and dispute the search warrant. If the fight becomes about the phone’s passcode and whether you have to give it over to the State, it is too late.  Do not let this happen to you.  Ensure your attorney understands evidentiary rules to protect your rights and your privacy.

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.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us immediately. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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