Passcodes and Self-Incrimination (Part 1)

by | Nov 3, 2020 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On August 10, 2020 the New Jersey Supreme Court decided the Essex county case of State v. Robert Andrews. The principal issue before the Court concerned the validity of a court order requiring the defendant to disclose his electronic passcodes.

Justice Solomon wrote for a four to three majority in relevant part: The Court considers whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination. The target of a State narcotics investigation, Quincy Lowery, advised detectives that defendant Robert Andrews, a former Essex County Sheriff’s Officer, had provided him with information about the investigation and advice to avoid criminal exposure. The State obtained an arrest warrant for defendant, who was later released, and search warrants for defendant’s iPhones, which were seized.

Later that day, detectives from the Essex County Prosecutor’s Office interviewed Lowery, who detailed his relationship with Andrews. Lowery explained that they were members of the same motorcycle club and had known each other for about a year. During that time, Andrews registered a car and motorcycle in his name so that Lowery could use them. Lowery also told the detectives that he regularly communicated with Andrews using the FaceTime application on their cellphones. Lowery claimed that during one of those communications, Andrews told him to “get rid of” his cellphones because law enforcement officials were “doing wire taps” following the federal arrests of Crips gang members. Lowery relayed his suspicion that he was being followed by police officers to Andrews and texted him the license plate number of one of the vehicles Lowery believed was following him. According to Lowery, Andrews informed him that the license plate number belonged either to the Prosecutor’s Office or the Sheriff’s Department and advised him to put his car “on a lift to see if there is a tracking device under there.” Lowery claimed that he also showed Andrews a picture of a man Lowery suspected was following him and that Andrews identified the individual as a member of the Prosecutor’s Office.

If Lowery withheld the information about the ex-sheriff officer’s wrongdoing, he could have used it as a bargaining chip to lessen his potential sentence. If he gave the information up upon being arrested as opposed to communicating it through his attorney at a later date, he would have lost most if not all of the benefit he could have derived from it.