197 A.3d 200
N.J. Super. Ct. App. Div.2018Background
- Essex County task force investigated Quincy Lowery for drug trafficking; surveillance linked vehicles registered to defendant to Lowery.
- Lowery implicated defendant (known as “Bolo”) in helping conceal trafficking (registering vehicles, warning of wiretap, advising to discard phones); call/text records showed extensive contact between Lowery and defendant.
- ECSO seized two of defendant’s iPhones (iPhone 5s and 6 Plus); defendant surrendered phones but refused to provide passcodes or consent to search.
- State obtained warrants to search the phones and moved to compel defendant to disclose the passcodes; trial court ordered in-camera disclosure of passcodes and limited subsequent search to Phone and Messages apps.
- Defendant claimed disclosure would violate the Fifth Amendment and New Jersey privileges against self-incrimination; trial court rejected those claims and defendant appealed.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether compelling defendant to disclose iPhone passcodes violates the Fifth Amendment privilege against self-incrimination | Disclosure is non-testimonial or, at most, conveys facts that are a "foregone conclusion" (possession, control, access); State already knows these facts | Passcodes are testimonial (use contents of mind) and compelled disclosure would incriminate defendant | Court: Passcode disclosure is testimonial only as to possession/control, but those facts are a foregone conclusion; Fifth Amendment does not bar disclosure |
| Whether New Jersey common-law, statutory, or evidentiary privilege bars compelled passcode disclosure | New Jersey privileges do not provide greater protection here; warrants give State superior right to possession and the foregone-conclusion exception applies | State-law privileges and privacy interests in phone contents require greater protection; passcodes fall within a "special zone of privacy" | Court: New Jersey common-law and statutory/evidentiary privileges do not bar disclosure where foregone-conclusion elements and superior right of possession via warrant are satisfied |
Key Cases Cited
- Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment made applicable to states)
- United States v. Hubbell, 530 U.S. 27 (2000) (act-of-production doctrine and limits on testimonial compulsion)
- Doe v. United States, 487 U.S. 201 (1988) (compelled authorization to obtain foreign bank records not testimonial where disclosure add little or nothing)
- Fisher v. United States, 425 U.S. 391 (1976) (act of production and foregone-conclusion exception)
- United States v. Apple MacPro Computer, 851 F.3d 238 (3d Cir. 2017) (holding decryption compelled where foregone-conclusion applied)
- Commonwealth v. Gelfgatt, 11 N.E.3d 605 (Mass. 2014) (state court applying foregone-conclusion to compelled decryption)