NJ Appeals Court: Lower Court Mixed Up 4th And 5th Amendment And Either Way, Phone Passcodes Can Be Compelled

from the looking-at-the-wrong-problem-and-it's-not-even-a-problem dept

More case law on compelled passcode production and the Fifth Amendment has been generated by a New Jersey appeals court. Unfortunately, it doesn’t do anything to strengthen Fifth Amendment protections against compelled production.

And that’s largely because this court can’t. The state’s Supreme Court handed down a ruling in August 2020 that limited the “foregone conclusion” the government needed to reach before securing a court order demanding passcode production was limited to the device and the existence of a passcode, rather than offering supporting arguments about the presumed existence of criminal evidence on the device.

That case dealt with a crooked cop whose phones were seized during an investigation. After discussing some (still unaddressed) concerns about the Fifth Amendment’s inconsistent application in other cases that may protect people using passwords more than people using biometric features to unlock phones, the court said that, in this case, law enforcement knew what it needed to know to surmount the “foregone conclusion” barrier.

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.

It’s this case that’s specifically cited in this appeals court decision [PDF]. The lower court refused to grant the government’s motion to compel, citing its inability to prove the locked iPhone seized belonged to the suspect. It also said the search of the phone (which hasn’t occurred yet) raised additional Fourth Amendment concerns.

Here’s how everything started:

Det. Pancza and members of the Internet Crimes Against Children Task Force executed the three warrants at 6:00 a.m. on July 16, 2021, at defendant’s residence. Defendant was located in his locked bedroom. He was the only occupant of the room, and he refused to open the door. Ultimately, the officers forced entry into defendant’s bedroom.

During their search of defendant’s bedroom, officers located three electronic devices: a Samsung cell phone, an Asus laptop, and an Apple iPhone. The iPhone was found in a pull string bag hanging on the back of a computer chair.

In accordance with the search warrant, Detective Brian Migliorisi attempted to access the iPhone 7, but he was prevented from doing so because the iPhone was passcode protected. The only information Det. Migliorisi could retrieve from the iPhone was its association with the same iCloud email account from the cyber tips, the one containing defendant’s last name and first initial. Defendant was charged with third-degree endangering the welfare of children, N.J.S.A. 2C:24-4(b)(5)(b)(iii).

The lower court did not find these circumstances added up to proof of the defendant’s ownership of the iPhone.

The court denied the motion, concluding the State failed to establish defendant’s ownership of the iPhone and knowledge of the passcode. The court found that officers locating the iPhone in “a backpack” in “a bedroom” was insufficient to prove defendant’s ownership. The court also found “that the phone immediately being in the vicinity of the defendant at the time of the search” did not “conclusively demonstrate that . . . defendant own[ed] the phone.”

The appeals court disagrees. First, it points to the August 2020 Andrews decision, which limited the Fifth Amendment discussion to the government proving a passcode exists, the defendant “operates or controls” the device in question, and that entry of the passcode would allow investigators to access the device’s contents. From what it sees here, the government has everything it needs to utilize the “foregone conclusion” exception.

Further, it says the Fourth Amendment concerns about the proposed search have no bearing on this discussion because the search hasn’t been performed and the defendant never challenged the warrants utilized in this case. If the search is indeed determined to be overbroad, the defendant can challenge it then. But because no challenge to the probable cause basis was raised by the suspect, the lower court was wrong to bring Fourth Amendment analysis into a discussion dealing solely with compelled production.

The only standard being applied to compelled production was easily met here, the appeals court says.

The motion court found defendant was in the “vicinity” of the phone and concluded that this was insufficient to prove defendant’s ownership or operation of it. We disagree, as the court overlooked credible evidence in the record when making its findings. At the time of the search the phone was in defendant’s locked bedroom; he was the sole occupant and refused to let the police in. Significantly, the email address associated with the phone’s iCloud account incorporates defendant’s last name and first initial. These probative facts, which suggest that defendant owned and operated the iPhone, were omitted from the motion court’s analysis.

Any further appeal efforts within the state will be foreclosed by the state Supreme Court’s decision. To appeal this determination, the defendant will have to look to the top court in the land. That remains an option because this is a discussion about federal constitutional rights rather than limited to the protections granted by New Jersey’s constitution. But odds are slim this will be examined by the US Supreme Court. The Andrews case that set state precedent has already had its appeal effort rejected by SCOTUS. For the time being, it will remain pretty easy for New Jersey law enforcement to bypass the Fifth Amendment.

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Comments on “NJ Appeals Court: Lower Court Mixed Up 4th And 5th Amendment And Either Way, Phone Passcodes Can Be Compelled”

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Ben says:

whats the point then?

Seems any protection can be got around if cops basically say “we think it might be needed to make our case” or “oops, how are we expected to know what the law is?” and increasingly “we couldn’t be bothered to do things right, tell us our laziness is ok for normal practice” and “its technology, give us a pass”

Let’s just save everyone the time and effort and have the 4th and 5th amendments nullified.

billyfromcali (profile) says:

How stupid do you have to be

How hard is it to just say you forgot the password? Instead of saying that you refuse to give it to him and give them an opportunity to argue, just say that you forgot the password. They could never prove that you did or you did not forget the password. Why is this difficult? I can see why people get arrested because they’re just that stupid

billyfromcali (profile) says:

Re: Re:

Again, PROVE that I haven’t forgot my password. How long has this court process gone on for? They didn’t like these motions and appeals the same day. You obviously have no clue how court works. These motions and rulings take months and months if not years sometimes. So yes, it would be VERY easy to claim your no longer remember the password. Also, if worst comes to worst, “contempt” sounds a whole lot better than whatever felony you might be facing. Contempt carries a 1 year MAX. Then they can technically do it once more. Remember Barry Bonds and Greg Anderson who refused to testify and they could only hold him in contempt twice. After that, it didn’t matter anymore.

billyfromcali (profile) says:

Re: Re: Re:2 LOL

You say criminal contempt only carries one year, the case is talking about criminal charges. So why would civil contempt apply? But irregardless of that, it is 1,000,000% impossible to prove what is in my head and my memory. And how many times have you had a conversation with a friend or family member and they talk about a situation with you and say something like, “do you remember when blah blah blah?” And you simply do not. People forget things all of the time and something like a password, especially if it could be fairly random or fairly long after several months or even years of not using it would be very easy to say you forgot. Again, the court process takes months and even years especially when appeals are filed as in this case where a higher court had to step in and make a ruling. Those rulings usually take several years. They can doubt you all they want, but in less they can clearly prove and clearly show that you’re refusing the courts order to do something there is nothing they can do. You cannot climb into somebody’s memories to verify

billyfromcali (profile) says:

Re: Re: Re:2

I’m sorry but I disagree with you. The only way to prove that I know something is for me to produce it and for it to work. In this case the only way to prove that I know a password is for me to actually give it to you and for it to unlock the device. How could you ever climb into my brain or my memories and tell me what are there? You can think that I’m lying and you can disagree with me but you can’t prove that I’m lying and courts require proof. I get want you to take into account That court process is takes several months and sometimes several years especially when appeals are filed like in this case to a higher court. I would suspect if you looked at the date that this motion was answered and were able to backtrack to the original date that this case was filed in criminal court there would be a gap of at least one year if not more. It would be very easy to say you forgot that password in that time

billyfromcali (profile) says:

Re: Re:

The court process and these motions and these rulings take months and even years for a ruling to come down. This person would’ve not had access to his phone for a minimum of six months up to maybe a year and a half or even up to two years before this judge made a ruling in this case. So yes it would be very easy to say that you forgot the password

Anonymous Coward says:

Re: Re:

I’ve got a buddy who uses the same computer almost every day, password protected. One day, he completely forgets the password. He said to me: “I’ve had the same password for ten years at least, and now I can’t remember it.” He was at a total loss.

Senior moment? Maybe. But think about your own password. I’ve been using the sane one for about fifteen years. It’s 18 characters long. It’s become a part of muscle memory, and sometimes when I think about it consciously, I have to work at it to recall it. How long before I forget mine?

I also play piano. Learning the notes goes in stages: Reading the piece takes weeks or months depending on complexity before I can put down the notes. I’ve now committed it to memory. A few more months, and I don’t even have to look at the keys. Now I’ve committed it to muscle memory. Wait about a year and try to play the piece by reading the notes. It’s nearly like starting from day one. I’ve forgotten the notes almost completely, yet I can play the piece with the lights turned off.

That’s what happens with passwords.

TheDumberHalf says:


When I travel, I can’t control other governments so I bring an old phone, wiped clean. On my way back, I create a long password and email it to myself. Don’t actually know the password until I get home.

On my regular phone. I use the fingerprint scanner, but I don’t use my actual finger. It’s part of my hand, but which part? I don’t trust the courts to make rational decisions anymore.

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