NJ: Once SW issues for cell phone, foregone conclusion exception to self-incrimination applies and password can be compelled

Once a search warrant issues for a cell phone, there is no privilege of self-incrimination in the phone barring compelled production of the password. The foregone conclusion exception to the Fifth Amendment applies. State v. Andrews, A-72-18 (N.J. Aug. 10, 2020) (syllabus by the court):

HELD: Neither federal nor state protections against compelled disclosure shield Andrews’s passcodes.

1. The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution require that search warrants be “supported by oath or affirmation” and describe with particularity the places subject to search and people or things subject to seizure. Andrews does not challenge the search warrants issued for his cellphones or the particularity with which the search warrants describe the “things subject to seizure.” Thus, the State is permitted to access the phones’ contents, as limited by the trial court’s order, in the same way that the State may survey a home, vehicle, or other place that is the subject of a search warrant. Andrews objects here to the means by which the State seeks to effectuate the searches authorized by the lawfully issued search warrants — compelled disclosure of his cellphones’ passcodes — which Andrews claims violate federal and state protections against compelled self-incrimination. (pp. 15-17)

2. The Fifth Amendment right against self-incrimination applies only when the accused is compelled to make a testimonial communication that is incriminating. Actions that do not require an individual to disclose any knowledge he might have or to speak his guilt are nontestimonial and therefore not protected. In contrast to physical communications, if an individual is compelled to disclose the contents of his own mind, such disclosure implicates the Fifth Amendment privilege against self-incrimination. (pp. 17-20)

3. The Court reviews the origin and development of the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination in Fisher v. United States, 425 U.S. 391 (1976), United States v. Doe, 465 U.S. 605 (1984), and United States v. Hubbell, 530 U.S. 27 (2000). From those cases, which all addressed the compelled production of documents, the following principles can be inferred: For purposes of the Fifth Amendment privilege against self-incrimination, the act of production must be considered in its own right, separate from the documents sought. And even production that is of a testimonial nature can be compelled if the Government can demonstrate it 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. (pp. 20-26)

4. Although the Supreme Court has considered the application of the foregone conclusion exception only in the context of document production, courts in other jurisdictions have grappled with the applicability of the exception beyond that context, and many have considered whether the exception applies to compelled decryption or to the compelled production of passcodes and passwords, reaching divergent results. Among other causes for that divergence is a dispute over how to adapt the foregone conclusion analysis from the document-production context, which involves the act of producing the document and the contents of the document, to the context of passcode production, which involves the act of producing the passcode that protects the contents of the electronic device. Some courts to consider the issue have focused on the production of the passcode as a means to access the contents of the device, treating the contents of the devices as the functional equivalent of the contents of the documents at issue in the Supreme Court cases. Other courts have focused on the passcodes themselves as that which is produced. The Court reviews case law expressing both views. (pp. 26-36)

5. Here, the State correctly asserts that the lawfully issued search warrants — the sufficiency of which Andrews does not challenge — give it the right to the cellphones’ purportedly incriminating contents as specified in the trial court’s order. And neither those contents — which are voluntary, not compelled, communications — nor the phones themselves — which are physical objects, not testimonial communications — are protected by the privilege against self-incrimination. Therefore, production of the cellphones and their contents is not barred. But access to the cellphones’ contents depends here upon entry of their passcodes. Communicating or entering a passcode requires facts contained within the holder’s mind. It is a testimonial act of production. (pp. 36-37)

6. The inquiry does not end there, however, because, if the foregone conclusion exception applies, production of the passcodes may still be compelled. To determine the exception’s applicability, the Court first considers to what it might apply — the act of producing the passcodes, or the act of producing the cellphones’ contents through the passcodes. The relevant Supreme Court cases explicitly predicate the applicability of the foregone conclusion doctrine on the fundamental distinction between the act of production and the documents to be produced. The documents may be entitled to no Fifth Amendment protection at all — and, indeed, they were not so entitled in Fisher — but the act of producing them may nevertheless be protected. In light of the stark distinction the Court has drawn between the evidentiary object and its production — a division reinforced even in those cases where the foregone conclusion exception was held not to apply — it is problematic to meld the production of passcodes with the act of producing the contents of the phones, an approach that imports Fourth Amendment privacy principles into a Fifth Amendment inquiry. The compelled act of production in this case is that of producing the passcodes. Although that act of production is testimonial, passcodes are a series of characters without independent evidentiary significance and are therefore of minimal testimonial value — their value is limited to communicating the knowledge of the passcodes. Thus, although the act of producing the passcodes is presumptively protected by the Fifth Amendment, its testimonial value and constitutional protection may be overcome if the passcodes’ existence, possession, and authentication are foregone conclusions. (pp. 37-40)

7. Based on the record in this case, compelled production of the passcodes falls within the foregone conclusion exception. The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the exception thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones. The Court would reach the same conclusion if it viewed the analysis to encompass the phones’ contents. The search warrants and record evidence of the particular content that the State knew the phones contained provide ample support for that determination. This was no fishing expedition. (pp. 40-41)

8. Turning to state law, the relevant statute and corresponding rule of evidence explicitly afford a suspect the “right to refuse to disclose … any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate.” N.J.S.A. 2A:84A-19; N.J.R.E. 503 (emphasis added). For the right of refusal to apply, therefore, a matter must first be found to be incriminating. N.J.S.A. 2A:84A-18 and N.J.R.E. 502, in turn, define the circumstances under which a matter will be deemed incriminating: “(a) if it constitutes an element of a crime against this State, or another State or the United States, or (b) is a circumstance which with other circumstances would be a basis for a reasonable inference of the commission of such a crime, or (c) is a clue to the discovery of a matter which is within clauses (a) or (b) above ….” Where ownership and control of an electronic device is not in dispute, its passcode is generally not substantive information, is not a clue to an element of or the commission of a crime, and does not reveal an inference that a crime has been committed. Finding that the passcodes are therefore not protected by statute, the Court considers state common law protections. (pp. 42-44)

9. New Jersey’s common law privilege against self-incrimination derives from the notion of personal privacy established by the United States Supreme Court in Boyd v. United States, 116 U.S. 616 (1886). The Fisher Court overturned Boyd’s protection of private documents. See 425 U.S. at 407. In In re Grand Jury Proceedings of Guarino, the Court affirmed its “belief in the Boyd doctrine and [held] that the New Jersey common law privilege against self-incrimination protects the individual’s right ‘to a private enclave where he may lead a private life.’” 104 N.J. 218, 231 (1986). Thus, despite the shift at the federal level, the New Jersey common law privilege continues to consider whether evidence requested is of an inherently private nature. Noting as much yields the answer here. The constitutional privacy considerations, see U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7, that would apply to those portions of the cellphones’ contents of which disclosure has been ordered have already been considered and overcome through the unchallenged search warrants granted in this case. Whether the inquiry is limited here to the passcodes or extended to the phones’ contents, the result is the same. (pp. 44-47)


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