State v. Andrews
| Citation | 234 A.3d 1254,243 N.J. 447 |
| Decision Date | 10 August 2020 |
| Docket Number | 082209,A-72 September Term 2018 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Robert ANDREWS, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Charles J. Sciarra, Clifton, argued the cause for appellant (Sciarra & Catrambone, attorneys; Charles J. Sciarra, of counsel, and Deborah Masker Edwards, on the briefs).
Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney; Frank J. Ducoat, of counsel and on the briefs, and Caroline C. Galda, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs).
Elizabeth C. Jarit, Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Elizabeth C. Jarit, of counsel and on the brief).
Andrew Crocker (Electronic Frontier Foundation) of the California bar, admitted pro hac vice, argued the cause for amici curiae Electronic Frontier Foundation, American Civil Liberties Union, and American Civil Liberties Union of New Jersey (Electronic Frontier Foundation, American Civil Liberties Union Foundation, and American Civil Liberties Union of New Jersey Foundation, attorneys; Andrew Crocker, Jennifer Granick (American Civil Liberties Union Foundation) of the California bar, admitted pro hac vice, Alexander Shalom, and Jeanne LoCicero, on the brief).
Christopher J. Keating argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar Association, attorneys; Evelyn Padin, President, Hoboken, of counsel, and Christopher J. Keating, Richard F. Klineburger, Haddonfield, Brandon D. Minde, and Matheu D. Nunn, Denville, on the brief).
Megan Iorio (Electronic Privacy Information Center) of the District of Columbia bar, admitted pro hac vice, argued the cause for amicus curiae Electronic Privacy Information Center (Barry, Corrado, Grassi & Gillin-Schwartz and Electronic Privacy Information Center, attorneys; Megan Iorio, Alan Butler (Electronic Privacy Information Center) of the District of Columbia bar, admitted pro hac vice, Marc Rotenberg (Electronic Privacy Information Center) of the District of Columbia bar, admitted pro hac vice, and Frank L. Corrado, Wildwood, on the brief).
Matthew S. Adams argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Fox Rothschild, attorneys; Matthew S. Adams, Jordan B. Kaplan, Marissa Koblitz Kingman, and Victoria Salami, Morristown, on the brief).
Lila B. Leonard, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Lila B. Leonard, of counsel and on the brief).
Gregory R. Mueller, First Assistant Sussex County Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Francis A. Koch, Sussex County Prosecutor, President, attorney; Gregory R. Mueller, of counsel and on the brief).
This appeal presents an issue of first impression to our Court -- whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey's common law or statutory protections against self-incrimination. We conclude that it does not and affirm the Appellate Division's judgment.
The target of a State narcotics investigation advised detectives that defendant, a law enforcement officer, had provided him with information about the investigation and advice to avoid criminal exposure. The target gave statements to investigators, confirmed in part by his cellphone, about photographs, cellphone calls, text message exchanges, and conversations with defendant during which defendant recommended that the target remove a tracking device that may have been placed on his car by the police; recommended that the target discard cellphones he and his cohorts used; and revealed the identity of an undercover officer and an undercover police vehicle.
The State obtained an arrest warrant for defendant and search warrants for defendant's iPhones, which were seized. Because the contents of the iPhones were inaccessible to investigators without the iPhones’ passcodes, the State moved for an order compelling defendant to disclose the passcodes.
Defendant claimed the United States Constitution and New Jersey's common law and statutory protections against compelled self-incrimination protected his disclosure of the passcodes. The motion court and Appellate Division concluded that defendant's disclosure of the passcodes could be compelled. We agree and affirm.
The State claims that defendant Robert Andrews, a former Essex County Sheriff's Officer, revealed an undercover narcotics investigation to its target, Quincy Lowery.
The motion court and Appellate Division records disclose that Essex County Prosecutor's Office detectives went to the Essex County Sheriff's Office to interview Andrews, with his counsel present, about his association with Lowery. Andrews's attorney told the detectives that his client did "not wish to speak to anyone" and would be invoking his Fifth Amendment privilege against self-incrimination. The attorney also requested the return of Andrews's two cellphones seized earlier that day. The detectives advised Andrews and his counsel that the cellphones were seized in connection with a criminal investigation and would not be immediately returned, but that Andrews was free to leave.
Later that day, detectives from the Essex County Prosecutor's Office interviewed Lowery, who detailed his relationship with Andrews. Lowery explained that they were members of the same motorcycle club and had known each other for about a year. During that time, Andrews registered a car and motorcycle in his name so that Lowery could use them. Lowery also told the detectives that he regularly communicated with Andrews using the FaceTime application on their cellphones.
Lowery claimed that during one of those communications, Andrews told him to "get rid of" his cellphones because law enforcement officials were "doing wire taps" following the federal arrests of Crips gang members.1 According to Lowery, Andrews said that the State Police and the Sheriff's Office were "going to do a run" and Lowery should "just be careful."
Lowery also explained that he had suspected he was being followed by police officers after receiving a tip from a fellow drug dealer who observed a white van outside of Lowery's residence. Lowery relayed that suspicion to Andrews and texted him the license plate number of one of the vehicles Lowery believed was following him. According to Lowery, Andrews informed him that the license plate number belonged either to the Prosecutor's Office or the Sheriff's Department and advised him to put his car "on a lift to see if there is a [tracking] device under there."
Lowery reported that he "stopped hustling" and discarded one of his cellphones after realizing he was being followed. Lowery also described one occasion when he noticed a man enter a restaurant shortly after Lowery arrived. Lowery explained that he suspected the man was an undercover police officer after noticing a bulge, believed to be a gun, on his hip. Using his cellphone, Lowery surreptitiously photographed the man. Lowery claimed that later that day he showed the picture to Andrews who identified the individual as a member of the Prosecutor's Office.
Further investigation following Lowery's statements largely corroborated his allegations. Lowery's Samsung Galaxy S5 cellphone was sent to the Cyber Crimes Unit for data extraction. The extraction report revealed that Lowery changed his telephone number shortly after he claims Andrews informed him of a potential wiretap. The report also revealed that two days after changing his number, Lowery texted an unknown subscriber to "Go get new phones." Seven minutes later, he texted another number advising that "Everybody around u need to get new ones 2."
A month later, Lowery texted a number associated with Andrews and asked "Where you at[?]" Forty-four minutes after that message, Lowery texted Andrews the license plate number of the car he suspected of following him. Lowery received a text message from one of Andrews's cellphone numbers two days later stating, "Bro call me we need to talk face to face when I get off."
Detectives later confirmed that the license plate number Lowery texted to Andrews was registered to a rental company and was being used by detectives on the Prosecutor's Office Narcotics Task Force. The extraction report also contained a photograph of a Narcotics Task Force detective matching the description of the undercover officer who followed Lowery into a restaurant. A review of State Motor Vehicle Commission records revealed that a 2002 Jeep Grand Cherokee Limited and 2007 Suzuki GSX motorcycle, which officers observed Lowery operating two weeks before his arrest, were registered to Andrews.
Following their second interview with Lowery, the State obtained Communication Data Warrants for cellphone numbers belonging to Andrews and Lowery. Over the next two weeks, the State sought and received additional search warrants for phones belonging to Lowery and Andrews, including a Communication Data Warrant for a second iPhone seized from Andrews. The warrants revealed 114 cellphone calls and text messages between Lowery and Andrews over a six-week period.
Andrews was indicted by an Essex County grand jury for (1) two counts of second-degree official misconduct ( N.J.S.A. 2C:30-2 ); (2) two counts of third-degree hindering the apprehension or prosecution of another person ( N.J.S.A. 2C:29-3(a)(2) ); and (3) two counts of fourth-degree obstructing the administration of the law or other government function ( N.J.S.A. 2C:29-1 ).
According to ...
To continue reading
Request your trial
-
State v. Valdez
...; G.A.Q.L. v. State , 257 So. 3d 1058, 1065–66 (Fla. Dist. Ct. App. 2018) (Kuntz, J., concurring); State v. Andrews , 243 N.J. 447, 234 A.3d 1254, 1287–88 (2020) (LaVecchia, J., dissenting), petition for cert. filed , No. 20-937 (Jan. 7, 2021); Davis , 220 A.3d at 548–49 ; see also LaFave, ......
-
State v. Pittman
...generally require that the state establish only that it knows that the defendant knows the phone's passcode. See State v. Andrews , 243 N.J. 447, 480, 234 A.3d 1254, 1276 (2020) ("[A]lthough the act of producing the passcodes is presumptively protected by the Fifth Amendment, its testimonia......
-
People v. Sneed
...the combination. More importantly, we question the continuing viability of any distinction as technology advances."); State v. Andrews , 243 N.J. 447, 234 A.3d 1254, 1274 (2020) ("[I]n some cases, a biometric device lock can be established only after a passcode is created, calling into ques......
-
Reynolds v. State
...in cases where criminal defendants are forced to disclose the password to a computer or other digital device. See, e.g., State v. Andrews, 243 N.J. 447, 234 A.3d 1254 (2020), cert. denied, ––– U.S. ––––, 141 S.Ct. 2623, 209 L.Ed.2d 751 (2021). In Andrews , the New Jersey Supreme Court trace......
-
Search and seizure of electronic devices
...the defendant knew the passcode. See, e.g., Commonwealth v. Jones , 117 N.E.3d 702, cert den. 140 S.Ct. 545 (2019); State v. Andrews , 234 A.3d 1254 (N.J.2020). In State v. Pittman , 479 P.3d 1028 (Or. 2021), the court held that mandating a defendant to unlock a password protected cell phon......
-
PASSWORD UNPROTECTED: COMPELLED DISCLOSURE OF CELLPHONE PASSWORDS AND THE FOREGONE CONCLUSION EXCEPTION.
...to retain text message contents for 90 days, it was acquired by Sprint, which does not store that information. Id. (7) State v. Andrews, 234 A.3d 1254, 1264 (N.J. 2020) (4-3 (8) State v. Andrews, 197 A.3d 200, 203 (N.J. Super. Ct. App. Div. 2018). (9) Andrews, 234 A.3d at 1261. (10) Andrews......
-
Locked Out or Locked Up: The Need for New Guidelines for Compelled Decryption.
...business documents); Seo v. State, 148 N.E.3d 952, 962 (Ind. 2020) (refusing to extend Fisher to compelled decryption); State v. Andrews, 234 A.3d 1254, 1274 (N.J. 2020) (applying Fisher to compel phone's (19.) See Seo, 148 N.E.3d at 959 (reasoning compelled production of unlocked phone unl......
-
ACTIONS SPEAK LOUDER THAN WORDS: COMPELLED BIOMETRIC DECRYPTION IS A TESTIMONIAL ACT.
...the fingerprint (like the key to the safe)."). (70.) See discussion infra Section II.A. (71.) See discussion infra Section II.B. (72.) 234 A.3d 1254 (N.J. 2020), cert. denied, 141 S. Ct. 2623 (73.) State v. Andrews, 197 A.3d 200, 203 (N.J. Sup. Ct. App. Div. 2018), aff'd, 234 A.3d 1254 (202......