New Jersey Supreme Court Says 'Forgone Conclusion' Trumps Fifth Amendment In Crooked Cop Case

from the tired:-4th-Amendment-exceptions-wired:-Fifth-Amendment-exceptions dept

The New Jersey Supreme Court has made the Fifth Amendment discussion surrounding compelled production of passwords/passcodes more interesting. And by interesting, I mean frustrating. (h/t Orin Kerr)

The issue is far from settled and the nation’s top court hasn’t felt like settling it yet. Precedent continues to accumulate, but it’s contradictory and tends to hinge on each court’s interpretation of the “foregone conclusion” concept.

If the only conclusion that needs to be reached by investigators is that the suspect owns the device and knows the password, it often results in a ruling that says compelled decryption doesn’t violate the Fifth Amendment, even if it forces the suspect to produce evidence that could be used against them. Less charitable readings of this concept recognize that “admitting” to ownership of a device is admitting to ownership of everything in it, and view the demand for passcodes as violating Fifth Amendment protections against self-incrimination. The stronger the link between the suspect and the phone, the less Fifth Amendment there is to go around.

This decision [PDF] deals with a crooked cop. Sheriff’s officer Robert Andrews apparently tipped off a drug dealer who was being investigated. The dealer tipped off law enforcement about Andrews’ assistance with avoiding police surveillance — something that involved Officer Andrews telling the drug suspect to ditch phones he knew were being tapped and giving him information about vehicles being used by undercover officers.

Two iPhones were seized from Andrews who refused to unlock them for investigators. Investigators claimed they had no other option but force Andrews to unlock them. According to the decision, there was no workaround available at that time (at some point in late 2015 or early 2016).

According to the State, its Telephone Intelligence Unit was unable to search Andrews’s iPhones — an iPhone 6 Plus and an iPhone 5s — because they “had iOS systems greater [than] 8.1, making them extremely difficult to access without the owner/subscriber’s pass code.” A State detective contacted and conferred with the New York Police Department’s (NYPD) Technical Services unit, as well as a technology company called Cellebrite, both of which concluded that the cellphones’ technology made them inaccessible to law enforcement agencies. The detective also consulted the Federal Bureau of Investigation’s Regional Computer Forensics Laboratory, which advised that it employed “essentially the same equipment used by” the State and NYPD and would be unable to access the phones’ contents. The State therefore moved to compel Andrews to disclose the passcodes to his two iPhones.

Apple implemented encryption-by-default in September 2014. Andrews was arrested in July 2015. This would be about the same time the DOJ was trying to force Apple to crack open an iPhone for it in the San Bernardino shooting case. This was ultimately resolved by an outside contractor (most likely Cellebrite), but it appears that no one had a workable solution when investigators in this case attempted to crack the seized phones.

Andrews challenged the compelled production of passcodes, claiming this violated his Fifth Amendment rights. The trial court disagreed, as did the state appeals court. The state’s top court arrives at the same conclusion.

The state argued it actually knew far more than what’s needed to clear the “foregone conclusion” bar.

[T]he State argues that communication between co-conspirators has no special privacy status, that the State “has established . . . that it already knows what is on the phone[s],” and that the State has a superior right to the contents of the phones because of the unchallenged search warrant.

The court finds in favor of the state, but it does recognize that passcodes are more testimonial than fingerprints or other biometric features used to unlock devices.

A cellphone’s passcode is analogous to the combination to a safe, not a key. Communicating or entering a passcode requires facts contained within the holder’s mind — the numbers, letters, or symbols composing the passcode. It is a testimonial act of production.

It also recognizes there may be no clear way to distinguish between passcodes and biometrics when dealing with compelled production.

We also share the concerns voiced by other courts that holding passcodes exempt from production whereas biometric device locks may be subject to compulsion creates inconsistent approaches based on form rather than substance. The distinction becomes even more problematic when considering that, at least in some cases, a biometric device lock can be established only after a passcode is created, calling into question the testimonial/non-testimonial distinction in this context.

The court says the state has proven enough to be granted the “foregone conclusion” exception to the Fifth Amendment.

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 foregone conclusion exception to the Fifth Amendment privilege against self-incrimination thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones.

The dissent disagrees. It says that although the tech has changed, the underlying principles of the Fifth Amendment haven’t. And it’s not just the dissent saying this. It’s also the nation’s top court, which has never held that the compelled production of incriminating testimony complies with the Constitution.

In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts — the contents of our minds — from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.

Given the current split in both federal district courts and state courts on the issue, the dissent says the New Jersey Supreme Court shouldn’t be an enabler of potential Fifth Amendment violations in the absence of US Supreme Court precedent.

Until the Court clarifies its intentions about application of the act of production doctrine in this setting, I would follow the only sure directional signs the Court has given…

Things may be slightly harder for investigators at the moment, but it’s not the court’s role to make things easier for the government. They’re supposed to be a check against government power grabs, not an ally in its attempts to limit the protections it supposedly granted to its citizens. We live in a “golden age of surveillance.” There’s more information available in unencrypted form than there’s ever been. And the arms race between device makers and encryption crackers is ongoing. It hasn’t ended and device encryption has not been declared the winner.

Law enforcement must find another means of obtaining access to the encrypted substantive information on two cell phones whose contents it wishes to search and for which the government has a search warrant. Technological barriers must be overcome without sacrificing constitutional, deep-seated historical protections against governmental intrusions forcing individuals to become assistants in their own prosecutions. Modern technology continues to evolve, bringing new problems; but it also may bring new solutions.

But that’s just the dissent. The majority says the Fifth Amendment can be bypassed if the state can find enough connective tissue between the locked device and the person who refuses to unlock it.

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Comments on “New Jersey Supreme Court Says 'Forgone Conclusion' Trumps Fifth Amendment In Crooked Cop Case”

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Anonymous Anonymous Coward (profile) says:

Investigators dislike effort, shove workload off on lawyers.

"[T]he State argues that communication between co-conspirators has no special privacy status, that the State “has established . . . that it already knows what is on the phone[s],” and that the State has a superior right to the contents of the phones because of the unchallenged search warrant."

If this is true, then they don’t really need to get into the cellphones at all, right? As has been pointed out many times in the past, cases were made long before cellphones existed, so let them make their cases without the cellphones. Besides, if all they want to prove is that A talked to B, then the service providers will have that information (or at least that number A and number B had a connection for X minutes and seconds). If it is something else, but they already know what it is, then they have another source for the information and again don’t need to get into the cellphone.

So far as to the ‘no special privacy status’ no, no special right, just the regular ones. Communication is private until it isn’t (like in a sealed envelope going through the postal service), and being government actors they are bound by the 1st Amendment (get a warrant, just think though, if you present probable cause you may have to disclose where you got it from which might show the lack of need for a warrant and makes me wonder why the warrant they got was unchallenged both by the issuing judge and whomever is representing the defendants). Remember, people’s rights are not limited to those restrictions on government listed in the Constitution.

Quit trying to screw with our rights, do your jobs the right way, even if it is more work.

That One Guy (profile) says:

The Constitution: 'They're more guidelines than rules you see'

The problem, and what should be the fatal flaw in the ‘forgone conclusion’ argument is that you don’t need to demand someone provide you with what you already have.

If investigators already have evidence to use against the accused then they have no need to demand that the accused cough it up, making clear that the demand very much is forcing someone to provide incriminating evidence that will be used against them, which would violate the fifth amendment. Arguing otherwise is basically flipping ‘innocent until proven guilty’ on it’s head as you are assuming guilt and demanding that the accused provide the evidence to convict them them rather than requiring the prosecution to do so.

AnonyCog says:

A burden of proof is laid onto the prosecution for evidenced gathered at trial. If the evidence trail leads to the phone, then the phone must be unlocked by the provider of the phone and not the owner. Therefore, the court ordered warrant should be sent to the phone’s operator and not the individual utilizing the device.

The state has no power to compel a defendant or witness to comply with the fifth amendment or any other testimony the witness who is hostile to the state has in their ability to disclose.

Because anything that witness, defendant or suspect says can and will be used; And just as much as anything that witness doesn’t say can be used. A jury or judge will decide that outcome and not a thought experiment as this judicial farce claims is legal.

Anonymous Coward says:

Re: Re:

If the evidence trail leads to the phone, then the phone must be unlocked by the provider of the phone and not the owner.

Which is exactly what was tried with the San Bernardino case and failed. If it succeeded, there would have been people abandoning US tech left and right.

I’ll say it again: Leave the phone at home. Better yet if you can avoid having one, do so. These things are only targeted because of the amount of data they collect and the fact that people carry them around. Deny both to the jackbooted thugs. That’s the only way they’ll get their evidence elsewhere.

sumgai (profile) says:

Once again, into the breech….

The state’s prosecutors and the courts both know the lay of the land. What they want is precedent to overcome those pesky safeguards that need to just go away (as far as they are concerned). Until a "victim" (a defendent) can cough up enough money to pay a lawyer to take this to the Federal courts, and possibly all the way to the top, New Jersey now has a workable exception to 5A. Glad I don’t live there.

Anonymous Coward says:

I had been thinking how the right of the government to obtain a search warrant for RECORDS could be balanced by the right of the accused to PRIVACY and NON-SELF-INCRIMINATION.

First, clearly, if the government can’t prove the accused owns the phone, all bets are off. [In this case, that seems to have been settled.]

Second, clearly, if the government doesn’t have adequate reason to believe there are relevant records on the phone, the warrant ought to be quashed. [Here, the records are confirmed by testimony and phone-co. records.]

Third, the desired records have to be specified and limited to the purpose–not just a "let’s go phishing on his fone" like the usual warrants demand. [Here, the desired records are limited to things legitimately related to the alleged actions.]

So much for self-incrimination. But how about privacy? Once the cops get their grubby hands on the phone, they can phish phreely.

Here’s where I thought: the phone needs to be examined by a neutral third party, who can identify and turn-over only the relevant records, leaving the government unaware of whatever else was on the phone. And, lo and behold, that too was done here. Neither the phone nor the passcode would be turned over to the government; instead, the unlocked phone could be examined with a judge, a defense attorney, and a government representative present. You aren’t going to get a better deal than that: You HAVE to open the safe, but your lawyer gets a say in which records get turned over. Do you think any judge anywhere is going to say about a metal safe, "No, you don’t have to give up the combination–the government is not allowed to get any documents from your locked safe under any circumstances"? No. You can open the safe and retrieve the required objects, or they can blow the safe and look through everything–your choice. Remember, the "secure in your home and possession" bit only applies in the absence of a valid warrant. And "self-incrimination" can’t apply to whether or not he knows the password if the police can prove he owns the phone.

So it seems to me that the court gave the accused all the protection and privacy he was constitutionally allowed–provided he gave up all (and ONLY) the records required by the warrant. This is a ruling that honest people both in and out of government should be able to live with.

Anonymous Coward says:

If they already know whats ON the phone, it doesn’t need to be unlocked to be presented as evidence.

Unless what they ‘believe’ to be on the phone was pulled entirely out of someone’s ass and wouldn’t hold up in a court of law.

Apart from all this, if the phones user had erased the phone prior to arrest, or was just housetidy, and deleted logs, those are multiple-pass erased and cannot be recovered.

Uriel-238 (profile) says:

Rights and

Rights and civil protections are obstructions to VIPs trying to dispose of a person. If we’re looking to make a person disappear, not for anything they did but for who they are then it makes sense to compel their encrypted data opened.

(This is to say locked phones, or any other locked form of encrypted data should never be compelled open for any reason.)

Not that US law is expected to make sense, be fair or apply to all persons equally.

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