NJ: Court order for cell phone passcodes is a 5A question; 4A inquiry erroneously included

“The State appeals the denial of its motion to compel a cell phone passcode from defendant, C.J.L. The State argues the motion court erred by overlooking critical ownership evidence and misapplying the foregone conclusion doctrine, effectively importing Fourth Amendment principles into what is a Fifth Amendment inquiry. After examining the record in light of the recent decision in State v. Andrews, 243 N.J. 447, 234 A.3d 1254 (2020), which extended the foregone conclusion doctrine to passcodes, we agree and reverse because the State presented sufficient evidence on the issue of ownership and possession.” State v. C.J.L., 2022 N.J. Super. LEXIS 46 (Apr. 18, 2022):

In addition to citing the wrong standard, the motion court also erred by importing Fourth Amendment principles into a Fifth Amendment inquiry. At the outset, the court acknowledged the warrants “clearly gave the State” authority to search and seize “all types of electronic things that may be capable of storing information or evidence of the alleged crime ….” But even after recognizing the validity of the search warrants, the motion court found that “[a]llowing the State to access the full contents of the phone would be [overbroad] and lead to a fishing expedition for incriminating information.”

The breadth of a search is a Fourth Amendment principle, and Andrews is clear that “Fourth Amendment[] privacy protections should not factor into [the] analysis” for compelled passcode inquiries. Id. at 479-80. Compelling production of the passcode simply facilitates the execution of the warrant. Moreover, we note that the search warrants were inherently broad due to the nature of the underlying offense: third-degree endangering the welfare of a child. N.J.S.A. 2C:24-4(b)(5)(b)(iii). HN8 Under this statute, “[a] person commits a crime of the third degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the [i]nternet, less than 1,000 items depicting the sexual exploitation or abuse of a child.” Ibid. (emphasis added).

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