This case concerns whether the compelled production of a cellphone password violates a defendant’s right against self-incrimination under the Fifth Amendment, New Jersey statute, and New Jersey common law. In 2016, Robert Andrews, an Essex County Sheriff’s Office officer, was arrested and indicted on six counts. During his arrest, he turned over two phones. The State filed a motion to compel Andrews to disclose his phone passwords. Andrews opposed the State’s motion on the grounds that it violated his right against self-incrimination under the Fifth Amendment and New Jersey law. Both the trial and appellate courts sided with the State. The New Jersey Supreme Court granted review.
The Fifth Amendment
The Fifth Amendment recognizes that no person “shall be compelled in any criminal case to be a witness against himself” and involves two inquiries: whether the evidence sought is (1) testimonial, and (2) not a “foregone conclusion.” In Schmerber v. California, the Supreme Court limited the Fifth Amendment to incriminating “evidence of testimonial or communicative nature,” holding that a blood sample was not testimonial and thus, not protected by the Fifth Amendment. In Doe v. United States, the Court attempted to more specifically define testimonial evidence:“an accused’s communication must itself, explicitly or implicitly, relate to a factual assertion or disclose information.” But courts around the country still disagree over whether specific pieces of evidence are testimonial or not.
In Fisher v. United States, the Court applied the privilege against self-incrimination to acts of production. But the Court decided that the Fifth Amendment’s application to acts of production is cabined by the foregone conclusion exception: if the information sought from the defendant “adds little or nothing to the sum total” of what the government already knows, it is a “foregone conclusion” and not protected by the Fifth Amendment. The Court defined the foregone conclusion exception more specifically in Hubbell v. United States: if production would reveal (1) the existence of, (2) the defendant’s possession of, and (3) the authenticity of the documents, the evidence in question is a foregone conclusion and can be compelled.
Recently, courts have been faced with the question of how the foregone conclusion should apply to password-protected devices. While most courts have held that the production of a numeric password communicates knowledge and is thus, testimonial, courts have disagreed over whether the foregone conclusion exception applies. Some courts have required that the Government must establish knowledge of specific files on a cell phone to trigger the exception. Other courts have required that the Government only establish knowledge of the cell phone password. But courts requiring the latter will almost always find a foregone conclusion, whereas courts requiring the former, will not.
Riley v. California
In Riley, the Supreme Court declined to extend the search incident to arrest exception to searches of cell phone data. The Court noted that to analogize the search of a cell phone with the search of other physical items is like “saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from Point A to Point B but little else justified lumping them together.” The Court in Riley reasoned that because modern cell phones create, receive, and access vast amounts of data, they cannot be held to the same standards as other physical storage containers.
In Carpenter v. United States, the Supreme Court cited Riley and refused to extend the third-party doctrine to cell-site location information, explaining that “seismic shifts in digital technology” required a reconsideration of the doctrine as applied to cell phone data. Again, the Court recognized that providing law enforcement with access to an individual’s cell phone in a digital age would be an intense invasion of privacy. As technology advances, courts must make decisions “to ensure that the progress of science does not erode“ constitutional protections.
Lower courts have extended Riley’s reasoning from the Fourth to the Fifth Amendment. In In re Application for a Search Warrant for example, the Northern District of Illinois used Riley to distinguish fingerprinting for identification puposes and fingerprinting cell phone authentication purposes. The court reasoned that the latter required stronger constitutional protections because of the vast privacy implications associated with giving law enforcement access one’s cell phone. Similarly, in In re Search of a Residence in Oakland, the Northern District of California relied on Riley in refusing to extend the foregone conclusion exception to passwords, emphasizing that “mobile phones are subject to different treatment than more traditional storage devices.”
In 2015, an Essex County Prosecutor’s Office task force investigated Quincy Lowry, a member of a suspected narcotics-trafficking network in Newark. After Lowery’s arrest, he gave a formal statement, alleging that Andrews helped him conceal his illegal activities. When confronted by authorities, Andrews turned over his phones, but refused to give a statement or consent to a phone search. In 2016, Andrews was indicted by an Essex County grand jury on six counts.
Superior Court, Law Divison, Essex County
In 2017, the State filed a motion to compel Andrews to disclose his phone passwords. In support of its motion, the State obtained and submitted Lowery’s phone records, which showed that 187 phone calls and a series of text messages were made between the pair in the thirty days before Lowery’s arrest. Because Andrews advised Lowery to reset his phones every month, the State could not access the texts nor could it discover the duration of the phone calls. Andrews opposed the State’s motion on the grounds that it violated his right against self-incrimination under the Fifth Amendment and under New Jersey law.
The trial court granted the state’s motion. Andrews appealed.
Superior Court of New Jersey
On appeal, the Superior Court unanimously upheld the trial court’s order, compelling Andrews to disclose his phone passwords and rejected Andrews’ Fifth Amendment claims. Though the court assumed that password production was testimonial, it maintained that disclosure was required by the foregone conclusion exception. The court explained that the State had successfully establish knowledge, possession, and authenticity of the cell phone passwords. The court also rejected Andrews’ claims that compelled disclosure would violate his right against self-incrimination under New Jersey statute and common law.
EPIC has long sought to ensure that constitutional protections keep pace with advances in technology. For instance, EPIC filed an amicus brief before the Supreme Court in Carpenter v. United States arguing that the technological changes justified broader Fourth Amendment protections. EPIC also filed a brief in Riley v. California that was cited in the Supreme Court’s decision recognizing that cell phones cannot be searched incident to an arrest without a warrant.