Article by Daniel A. Levy, Esq.

Clients come to me for many different kinds of Criminal Defense matters, and of course they ask lots of different questions. In the Age of Information, there are all sorts of new issues that arise during a criminal investigation and prosecution in New Jersey. One of those issues is the question of whether a defendant can be forced to provide their cell phone password to police.

It is a bit hard to believe, but although cellphones have been around for decades, the courts in New Jersey have never had to answer this question. Either the issues never really came up in a meaningful way, or defendants simply unlocked their phones for the police, voluntarily. But in a recent New Jersey Supreme Court case, the issue was directly addressed.

In State v. Andrews, the defendant was the subject of a drug-related investigation. There were several warrants issues, including one that resulted in the seizure of the defendant’s cell phone. However, police were unable to unlock the cell phone because it was protected by a password. They claimed that they needed to access the phone so that they could read text messages, which police claimed would be incriminating and reveal details about a drug distribution network. However, the defendant refused to provide it, arguing in court that the 5th Amendment to the United States Constitution allows someone to “plead the 5th” and refuse to provide testimony that incriminates themselves. He argued that forcing him to reveal the password is forcing him to make an incriminating statement.

It was a close case, which was decided by a vote of 4-3, but the New Jersey Supreme Court held that the defendant could be forced to provide the password, in this particular case, relying upon the foregone conclusion exception to the 5th Amendment. This doctrine provides that even if production of information is of a testimonial nature, a defendant’s right against self-incrimination can be overcome if the state “already knows the information that act will reveal—if, in other words, the existence of the requested documents, their authenticity, and the defendant’s possession of and control over them—are a foregone conclusion.”

Applying the foregone conclusion exception, the court found that the state established that a passcode existed (their efforts to unlock the phone were unsuccessful), defendant had possession and operation of the cell phone, and that the contents of the phone were self-authenticating.

Therefore the majority concluded that requiring defendant to provide his passcode did not violate his Fifth Amendment privilege provided by the U.S. Constitution or New Jersey law.

It was a bit of a tortured legal argument for the court to make in order to justify law enforcement’s intrusion, and other states do not follow this exception. Even New Jersey does not follow this rule of law in other contexts (for example, the police cannot force you to give them the combination to a safe). But unfortunately, unless the United States Supreme Court says otherwise, we are stuck with this rule of law.