YOUR IPHONE PASSCODE IS NOT PROTECTED BY 5TH AMENDMENT SELF INCRIMINIATION

State v. Andrews

Appellate Docket No.: A-72-18

Decided August 10, 2020

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent New Jersey Supreme Court decision, the Court reviewed whether the requirement of a defendant to turnover his passcode to his iphone constituted a violation of the 5^th Amendment right against self-incrimination.

In State v. Andrews, a former Essex County Sheriff’s Officer was charged with official misconduct, tampering, and obstruction.   The defendant officer provided information to another individual to help the individual avoid detection from an ongoing investigation. This included giving the whereabouts of state license plates that were following the individual, the identity of the investigator believed to be in charge, and destroying evidence such as cell phones.

The individual informed investigators the defendant was assisting him in alluding law enforcement. Evidence of the individual’s and defendant’s conversations were contained on defendant’s ipone, but was passcode protected.  The State retrieved a warrant to search Defendant’s phone, but defendant refused to deliver the passcode, arguing this violated his 5^th amendment right against incrimination.

The issue eventually made its way to the Supreme Court of New Jersey. The Court began its analysis with the fact that the State has broad authority to enforce search warrants under the 4^th Amendment’s protection against unlawful search and seizure.  In this case, the search warrant issued to search the defendant’s phone was issued and not disputed by the defendant – which would be a challenge on 4^th Amendment grounds. However, the Court noted that even a lawful seizure cannot compel the disclosure of facts otherwise protected by the 5^th Amendment.

The question before the Court was whether compelling the defendant to disclose his iphone passcode violated the protection of the 5^th Amendment against self-incrimination.  Examples the Court provides of acts that do not violate the 5^th Amendment are the State requiring handwriting samples, voice samples, blood, hair, saliva, standing in a lineup, donning certain clothing, or even executing an authorization directing a foreign bank to disclose account records.

In contrast, the individual cannot be compelled to disclose the contents of their mind.  The defendant argued that the passcode to his iphone was the contents of his mind.  The Court then analyzed the history of the foregone conclusion exception to the 5^th Amendment, which provided that if turning over the evidence requires some disclosure or testimony as to the location of the information, there is a foregone conclusion of the existence of such evidence and the act of stating where the information is located is simply surrendering the information.

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 iphone contained, was all a foregone conclusion the information they sought existed and compelling the defendant to turn over his iphone 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.