The state Supreme Court’s 4-3 ruling was a result of the case of Robert Andrews, a former Essex County Sheriff’s officer, who alleged it was unconstitutional to make him provide his cell phone passcode to authoritiesas they investigated him for aiding a man who was under investigation for drug trafficking. Authorities executed a search warrant on Andrews’ phones, but were not able to access information without the passcodes.
The majority of the state Supreme Court concurred with Justice Lee Solomon’s opinion that found “neither federal nor state protections against compelled disclosure shield Andrews’s passcodes.”
The opinion says that the lawfully issued search warrants, which Andrews did not challenge, gives the state “the right to the cellphones’ purportedly incriminating contents.”
The ruling now sets a precedent across the state that authorities have the ability to compel criminal defendants to disclose their cell phone passcodes in order to retrieve information from the device they were seeking to obtain with a search warrant, legal experts say.
Attorneys and advocates who argued forcing the disclosure of a defendant’s passcode was unconstitutional said they view the ruling as a blow to privacy and a defendant’s constitutional right to remain silent and not self-incriminate.
“(The ruling) is taking a stick of dynamite to that fundamental right and imploding it from within,” said Matt Adams, vice president of Association of Criminal Defense Lawyers of New Jersey.
In the dissenting opinion, authored by Justice Jaynee LaVecchia, the justice raises concerns that this an example of citizen’s right to privacy “constantly shrinking” and a “direct violation of (Andrews’) right not to testify against himself.”
“We are at a crossroads in our law,” she wrote. “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?”
Charles J. Sciarra, Andrews’ attorney, said in a statement that the decision is “a major defeat to the United States Constitution when it is already under substantial attack.”'
“It’s time to rethink whether you should keep anything simply private or personal on a personal electronic device because if the government wants it they can now get it,” Sciarra said.
A number of organizations, including the Association of Criminal Defense Lawyers of New Jersey, New Jersey State Bar Association, and the American Civil Liberties Union, all argued that criminal defendants should be shielded from disclosing information that exists only in their mind, like a phone passcode.
Adams, who argued the case on behalf of the Association of Criminal Defense Lawyers of New Jersey, said he hopes the U.S. Supreme Court takes on the case and reverses the decision.
“This is a fundamental matter of individual rights that should not have been decided this way,” he said.
Brandon Minde, the chair of the New Jersey State Bar Association’s Criminal Law Section, said the organization agrees with the dissenting opinion and will continue to monitor how this decision affects privacy concerns for New Jersey residents.
“In a world where right to privacy is constantly shrinking, our Constitutional rights must not,” Minde said.
Justice LaVecchia wrote that forcing Andrews to turn over his passcode raises Constitutional issues because Andrews is being asked to “essentially turn over what is presumed to be incriminating information, in direct violation of his right not to testify against himself.”
But, according to the majority opinion, Andrews is not protected against self-incrimination because the search warrants had enough evidence to “provide ample support to compel Andrews to turn over his passcode.”
“This was no ‘fishing expedition,’” the majority opinion says.
The case
As authorities were conducting a narcotics investigation into Quincy Lowery in 2015, Lowery provided investigators with information: he told detectives that Andrews was providing him information about their investigation and advice to avoid criminal exposure, according to court documents.Lowery allegedly told authorities that he and Andrews were members of the same motorcycle club, and the two regularly talked on FaceTime, according to the opinion. During one of those calls, Lowery said Andrews told him to “get rid of” his cell phones because law enforcement was doing wiretaps.
Lowery said Andrews also provided information on law enforcement officers who were following Lowery as a part of their investigation and to check if his car was being tracked, according to the opinion.
According to the opinion, the state obtained communication data warrants for cellphone numbers belonging to Andrews and the man under investigation. The warrants revealed 114 cellphone calls and text messages between them over a six-week period.
Andrews was indicted in 2016 for official misconduct, hindering and obstruction.
Lowery said much of what he told investigators could be confirmed by contents of phone communications with Andrews, however, neither state or federal authorities were able to to search Andrews’s two iPhones without his passcode because they had an operating system that makes them “extremely difficult” to access without the passcodes, according to the opinion. (Lowery said communications were gone from his phone after resetting it.)
Prosecutors asked the court to require Andrews to provide his passcodes so the phones could be searched.
Andrews opposed the motion, claiming that disclosure of his passcodes violates the protections against self-incrimination.
However, the trial court ordered Andrews do so, but limited the search of his phone and ordered that when conducted, the search “be performed by the State, in camera, in the presence of Andrews’s defense counsel.”
Andrews appealed the order, but the state’s Appellate Division’s 2018 ruled against Andrews.The court found that using self-incrimination as a defense to not turn over a cell phone passcode “would essentially preclude the State from obtaining the contents of any passcode-restricted device as part of a criminal investigation.”
After the state Supreme Court’s ruling Monday, Andrews’ criminal case, which is still in the pretrial phase due to the legal battle, will move forward. He must turn over his passcodes so that the Essex County Prosecutor’s Office can execute the warrants on his phones, a spokeswoman for the prosecutor’s office said.
Sciarra, Andrews’ attorney, did not respond to multiple requests for comment on if he plans to appeal the decision to the U.S. Supreme Court or if Andrews will oblige with the order to turn over his passcodes.
Chief Justice Stuart Rabner and Justices Anne M. Patterson and Faustino J. Fernandez-Vina joined the majority opinion, while Justices Barry T. Albin and Walter F. Timpone joined the dissenting opinion.
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