Can law enforcement compel you to unlock your smartphone to access your texts, phone logs, and other private materials? State and federal courts are all over the place when it comes to this question.[1] In State of New Jersey v. Robert Andrews, New Jersey joined Massachusetts[2] in explicitly allowing police officers to compel defendants to enter their phone passcodes. Law enforcement in both states have a new rule: if police can 1) establish that they know a defendant owns the phone, 2) show that the defendant has the passcode, and 3) state with specificity what data is on the phone that’s relevant to the case, then they can compel an individual to unlock their phone.[3] The United States Court of Appeals for the Third Circuit adopted a similar rule.[4] The Indiana[5] and Pennsylvania[6] state supreme courts have rejected such a rule, for now. The Florida District Courts of Appeals have adopted competing rules.[7] Courts are struggling to answer this question consistently as they consider such difficult questions as how to apply old doctrine to new technology and how to preserve individual privacy. The Supreme Court of New Jersey’s recent decision demonstrates the difficulty in resolving these issues.

In State of New Jersey v. Robert Andrews, the Supreme Court of New Jersey held that the compelled production of an individual’s phone passcode is testimonial evidence under the Fifth Amendment. But the court also determined that the government can require a defendant to produce their passcodes under the Supreme Court’s foregone conclusion exception.

The defendant, Robert Andrews, was indicted for official misconduct, hindering, and obstruction related to a drug dealing investigation. The state already had testimony, phone records, and text messages suggesting that the defendant had been in contact with another individual involved in the scheme. The state secured a warrant that granted access to specific apps on the defendant’s iPhone, including the default Phone application and its messaging counterpart. However, the state could not access the phone’s contents due to Apple’s security protocols. When the trial court granted the state’s motion to compel the defendant to provide his phone’s passcode, the defendant refused and claimed that disclosure violated his Fifth Amendment right against self-incrimination, New Jersey’s analogous statutory right, and New Jersey common law’s broader privacy principles.

The court rejected the state’s argument that phone passcodes are mere numbers and recognized that they have testimonial value. However, testimonial evidence can be exempted from Fifth Amendment protection under the foregone conclusion doctrine if the existence, possession, and authentication of the testimony are already known to the government. Since the state already demonstrated at trial that the phone’s passcode exists, that the defendant owned and operated the smartphone associated with it, and the passcode itself simply authenticates this previously known knowledge, the court found that the foregone conclusion exception applies.[8]

Justice Jaynee LaVecchia dissented, focusing on two points. First, she argued that the majority’s particular application of the doctrine violates the fundamental privacy principles found within the U.S. Constitution and the state’s common law. The dissent preferred a broader conception of privacy than the one the majority adopted. As Justice LaVecchia put it, “the precept that one’s inner thoughts cannot be compelled to be disclosed because they are protected by the Fifth Amendment privilege against self-incrimination is still an accepted United States Supreme Court principle.”[9]

Secondly, the dissent believed it was unwise to expand the foregone conclusion doctrine to digital technologies. “The exception originated in the setting of the government ferreting out already existing, physical documents held by another person,” Justice LaVecchia wrote.[10] “It requires expansion to be used here. Its lineage does not merit its use in the present context of overriding the privilege to keep one’s thoughts and recollections to one’s self and not turn that over to the government for use in easing its investigatory efforts.”[11] Unlike the majority, the dissent saw a sharp distinction between compelling individuals to share specific bank account information—the type of physical documentation commonly seen in the Supreme Court’s limited foregone conclusion jurisprudence—and compelling them to open up access to their smartphones. LaVecchia urged the majority to wait for the U.S. Supreme Court to determine whether the foregone conclusion doctrine should be expanded. 

The Supreme Court will eventually have to resolve both these questions—whether phone passcodes are testimonial evidence and whether the foregone conclusion doctrine applies to them. And a firm rule may not be enough. The Court will also need to provide a proper framework to guide lower courts in analyzing compelled production cases. For instance, in G.A.Q.L. v. State, the Florida District Court of Appeals “reasoned that the evidence sought in a password production case . . . is not the password itself; rather it is the actual files or evidence on the locked phone.”[12] It therefore denied the defendant Fifth Amendment protection. Both the New Jersey Supreme Court and the Third Circuit disagreed with that approach. Instead, they “view the compelled act of production in this case to be that of producing the passcode.”[13] This distinction not only impacts the self-incrimination analysis but also related privacy questions.

It is highly likely that the Supreme Court will be asked to resolve these questions in the next few years. Until then, expect more splintering and confusion in the lower courts on these essential questions regarding privacy, self-incrimination, and modern technology.

 
Note from the Editor:
 
The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] See Eunjoo Seo v. State, 148 N.E.3d 952, 968 (Ind. 2020).

[2] Com. v. Gelfgatt, 468 Mass. 512, 518, 11 N.E.3d 605, 611 (2014).

[3] Id.

[4] United States v. Apple MacPro Computer, 851 F.3d 238, 248 (3d Cir. 2017).

[5] Eunjoo Seo v. State, 148 N.E.3d 952, 962 (Ind. 2020).

[6] Com. v. Davis, 220 A.3d 534, 550 (Pa. 2019).

[7] See State v. Stahl, 206 So. 3d 124, 136 (Fla. Dist. Ct. App. 2016); G.A.Q.L. v. State, 257 So. 3d 1058 (Fla. Dist. Ct. App. 2018).

[8] State v. Andrews, 243 N.J. 447, 480, 234 A.3d 1254, 1274 (2020).

[9] State v. Andrews, 243 N.J. 447, 489, 234 A.3d 1254, 1280 (2020).

[10] State v. Andrews, 243 N.J. 447, 502, 234 A.3d 1254, 1288 (2020).

[11] Id.

[12] G.A.Q.L. v. State, 257 So. 3d 1058, 1064 (Fla. Dist. Ct. App. 2018).

[13] State v. Andrews, 243 N.J. 447, 480, 234 A.3d 1254, 1274 (2020).