The ability of law enforcement to access the cell phone content of a criminal defendant has received considerable attention in recent years. The issue has been the same in case after case. If the cell phone is seized as part of an investigation, the security settings, such as passcodes, shield the content from law enforcement. The New Jersey Supreme Court recently considered whether a court order requiring a criminal defendant to disclose his cell phone pass codes violates his right to not incriminate himself pursuant to the Fifth Amendment of the United States Constitution, and/or New Jersey’s statutory or common law right against self-incrimination.
Quincy Lowery was the target of a State narcotics investigation. During the investigation, he informed detectives that Robert Andrews, a former Essex County Sheriff’s Officer, had given him information concerning the investigation, and had told him how to avoid criminal exposure. Andrews and Lowery had known each other for about a year, and belonged to the same motorcycle club. Lowery informed detectives that he regularly communicated with Andrews over FaceTime. During one of these communications, Andrews told Lowery to get rid of his cell phones because members of law enforcement were doing wiretaps after the arrest of members of the Crips gang. Lowery told Andrews that he thought he was being followed by the police, and texted Andrews the license plate number of one of the vehicles. Andrews then informed him that the plate number belonged either to the Essex County Prosecutor’s Office or Sheriff’s Department. He also instructed Lowery to put his car on a lift to see if it had a tracking device attached to it. After seeing a picture from Lowery of someone who was following him, Andrews told Lowery that the person was with the Prosecutor’s Office. Lowery’s allegations were corroborated by his cell phone records.
The State obtained warrants for cell phone numbers belonging to both Lowery and Andrews. The warrants showed 114 calls and text messages between the two over a period of six weeks. Andrews was indicted for official misconduct, hindering apprehension and obstruction of justice.
The State was unable to search Andrews’s cell phones, despite the efforts of its Telephonic Intelligence Unit, the New York Police Department’s Technical Services Unit, the FBI’s Regional Computer Forensics Lab and a private technology company. Each of these entities reported to the State that the cell phones’ technology rendered them inaccessible. The State then moved for an order compelling Andrews to disclose the passcodes to both of his phones. Andrews opposed the motion, claiming that forcing him to disclose his passcodes violated his right against self-incrimination under both the Federal Constitution, as well as the relevant New Jersey statutes and common law. The motion judge rejected Andrews’ arguments, but limited access to the cellphones to what was contained in the “Phone” icon and application, and the “Message” icon and/or text messaging application. The court also required the State to search the phones in camera in the presence of Andrews’s defense counsel and the judge, with the judge reviewing the PIN or passcode before its disclosure to the State.
The Appellate Division affirmed the motion judge’s ruling, and the State Supreme Court granted leave to appeal. In a four-to-three decision, the New Jersey Supreme Court found that neither the Federal nor State protections invoked by Andrews shielded his passcodes from disclosure. Andrews has filed for review by the United States Supreme Court.
This issue has come up repeatedly over the last several years and, given the role of technology in our society and the extent to which people now rely upon cell phones with all of their capabilities, it was only a matter of time before a case developed to this extent. Everyone is waiting to learn how the United States Supreme Court will rule, and the decision will certainly be reported in this blog.
James S. Friedman, Esq., is a criminal defense attorney in New Brunswick, New Jersey. Mr. Friedman represents defendants in criminal cases in all state and federal courts in New Jersey and New York City.