State v. Andrews

• Decision Date: 15 November 2018
• Docket Number: DOCKET NO. A-0291-17T4
• Citation: 197 A.3d 200,457 N.J.Super. 14
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Robert ANDREWS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

457 N.J.Super. 14

197 A.3d 200

STATE of New Jersey, Plaintiff-Respondent,

v.Robert ANDREWS, Defendant-Appellant.

DOCKET NO. A-0291-17T4

Superior Court of New Jersey, Appellate Division.

Argued October 16, 2018

Decided November 15, 2018

Charles J. Sciarra, Clifton, argued the cause for appellant (Sciarra & Catrambone, LLC, attorneys; Charles J. Sciarra, of counsel and on the briefs; Deborah Masker Edwards, on the briefs).

Tiffany M. Russo, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Tiffany M. Russo, of counsel and on the brief).

Fox Rothschild, LLP, Lawrenceville, attorneys for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Matthew S. Adams, Jordan B. Kaplan, Marissa Koblitz Kingman, and Victoria T. Salami, on the brief).

Before Judges Yannotti, Rothstadt and Natali.

The opinion of the court was delivered by

YANNOTTI, P.J.A.D.

Defendant appeals, on leave granted, from an order of the Law Division, which required defendant to disclose the personal identification numbers and passwords (the passcodes) for his lawfully-seized iPhones. Defendant argues that the compelled disclosure of this information violates his right against self-incrimination under the Fifth Amendment to the United States Constitution, and the protections against self-incrimination afforded under New Jersey law. We reject defendant's arguments and affirm the trial court's order.

I.

We briefly summarize the pertinent facts and procedural history. In May and June 2015, a task force of the Essex County Prosecutor's Office (ECPO) was investigating a suspected narcotics-trafficking network in Newark. During surveillance, law enforcement officers observed Quincy Lowery (Lowery), the target of the investigation, operating a motorcycle and a Jeep, even though his driver's license was suspended at the time. Both vehicles were registered in defendant's name.

In June 2015, the task force obtained a court order, which authorized a wiretap of Lowery's phone and placement of a global positioning system (GPS) device on the Jeep. On June 30, 2015, Lowery was arrested on suspicion of drug trafficking. On the night of his arrest, Lowery gave a formal statement, alleging that an officer in the Essex County Sheriff's Office (ECSO), whom Lowery knew only as "Bolo," had helped him conceal his drug-trafficking activities. Lowery said he had known "Bolo" for about a year through a motorcycle club in which both men were members. From a photograph, Lowery identified defendant as the person named "Bolo."

Lowery claimed defendant assisted him by registering the Jeep and motorcycle in his own name because defendant knew Lowery's license had been suspended. Lowery said defendant warned him about the wiretap and urged him and his co-conspirators to get rid of their phones. According to Lowery, defendant checked the license plate of a vehicle Lowery had suspected of following him and confirmed it was a county-issued vehicle. Defendant also confirmed Lowery's suspicion that a man Lowery saw at a bar was an undercover officer. In addition, defendant suggested that Lowery put his motor vehicle on a lift to check it for a GPS device, and to discard any such device.

Lowery consented to an electronic search of his phone and showed the police a picture of a license plate he had texted to defendant. The investigators later confirmed the license plate belonged to a vehicle the task force had used in a surveillance operation. The cell phone number associated with the name "Bolo" on Lowery's phone corresponds to the number for one of defendant's iPhones. Lowery suggested to investigators that defendant generally offered this assistance either in person or by using the video app FaceTime, and that the text messages the two exchanged were mostly limited to arranging meetings.

On the night Lowery was arrested, the Internal Affairs Department of the ECSO confronted defendant and asked him to surrender his two phones: an iPhone 5s and an iPhone 6 Plus. Defendant turned in the phones but refused to consent to a search of either phone or give a statement. Defendant later requested that the phones be returned to him. The officers denied the request and held the phones pending an application for a search warrant.

In June 2016, an Essex County grand jury returned a six-count indictment charging defendant with second-degree official misconduct, contrary to N.J.S.A. 2C:30-2 (counts one and two); third-degree hindering the apprehension or prosecution of another person, contrary to N.J.S.A. 2C:29-3(a)(2) (counts three and four); and fourth-degree obstruction of the administration of the law or government function, contrary to N.J.S.A. 2C:29-1 (counts five and six).

In January 2017, the State filed a motion to compel defendant to disclose the passcodes required to unlock defendant's iPhones. In support of its motion, the State submitted call records it had obtained regarding Lowery's phone, which showed that in the thirty days before Lowery's arrest, 187 phone calls had been exchanged between defendant's iPhones and Lowery's mobile devices. However, these records reflected only the number of calls exchanged, and they provided no information about the duration of the calls.

Lowery's phone and call records also revealed a series of text messages with defendant. However, Lowery told investigators that on defendant's advice, he reset his phone about thirty days before his arrest. Therefore, the State could not access any of that data. Because defendant's iPhones were locked, the State could not determine whether defendant's devices contained any of the missing texts between Lowery and defendant or any information about the duration of their calls. The State asserted that the only way to obtain records as to the duration of the calls was through defendant's iPhones since Apple is a "closed end to end system," and defendant's service providers do not have access to Apple's "system."

Defendant opposed the motion, arguing that compelled disclosure of the passcodes would violate his Fifth Amendment right against self-incrimination. He argued that the State was seeking to compel disclosure of statements that are testimonial and potentially incriminating. He further argued that any compelled disclosure would be inconsistent with the privilege against self-incrimination under New Jersey law.

The trial court heard oral argument on the motion, and on May 22, 2017, filed a written opinion in which it concluded that the State's motion should be granted. The court found that the compelled disclosure of the passcodes was not a violation of defendant's constitutional right against self-incrimination. The court also decided that the privilege against self-incrimination under New Jersey's common law, N.J.S.A. 2A:84A-19(b), and N.J.R.E. 503 did not preclude the court from requiring defendant to disclose the information.

The court memorialized its opinion in an order dated May 22, 2017. The order requires defendant to disclose the passcodes, but limited the State's access "to that which is contained within (1) the ‘Phone’ icon[s] and application[s] on [defendant's] two iPhones and (2) the ‘Messages’ icon[s] and/or text messaging applications." The order also requires defendant to disclose the passcodes in camera before any disclosure to the State, and directed the State to perform the actual search "in camera, in the presence of ... defense counsel and the [c]ourt."

In June 2017, defendant filed a motion seeking leave to appeal the trial court's May 22, 2017 order. In July 2017, we denied the motion. Defendant then filed a motion in the Supreme Court for leave to appeal. The Supreme Court granted the motion and summarily remanded the appeal to this court for consideration on the merits. We later permitted the Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ) to appear as amicus curiae.

II.

Defendant argues that the trial court's order compelling him to disclose the passcodes for the seized phones violates his right against self-incrimination, as provided in the Fifth Amendment to the United States Constitution. We conclude, however, that under the circumstances presented here, the compelled disclosure of the passcodes is not barred by the Fifth Amendment.

The Fifth Amendment to the United States Constitution, which is made applicable to the states through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V. "The word ‘witness’ in the constitutional text limits the relevant category of compelled incriminating communications to those that are ‘testimonial’ in character." United States v. Hubbell, 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000).

"[T]o be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information," such as an admission that the revealed evidence "exist[s]," is "in [defendant's] possession or control," and is "authentic." Doe v. United States, 487 U.S. 201, 209-10, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988) (citing United States v. Doe, 465 U.S. 605, 613 & n.11, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) ; Fisher v. United States, 425 U.S. 391, 409-10, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) ). "Only then is a person compelled to be a ‘witness’ against himself." Id. at 210, 108 S.Ct. 2341.

The Fifth Amendment privilege against self-incrimination applies not only to verbal and written communications but also to the production of documents because "[t]he act of produc[tion]" itself may communicate incriminatory statements. Fisher, 425 U.S. at 410, 96 S.Ct. 1569. Nevertheless, the "foregone conclusion" principle is an exception to the "act of production" doctrine. See id. at 411, 96 S.Ct. 1569.

For the "foregone conclusion" exception to apply, the State...