Passcodes and Self-Incrimination (Part 3)

Justice Solomon continued in relevant part: The court also ordered that the search “be performed by the State, in camera, in the presence of Andrews’s defense counsel and the court,” with the court “reviewing the PIN or passcode prior to its disclosure to the State.” The Appellate Division affirmed. 457 N.J. Super. 14, 18 (App. Div. 2018). The Court granted leave to appeal. 237 N.J. 572 (2019).

Neither federal nor state protections against compelled disclosure shield Andrews’s passcodes. The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution require that search warrants be “supported by oath or affirmation” and describe with particularity the places subject to search and people or things subject to seizure. Andrews does not challenge the search warrants issued for his cellphones or the particularity with which the search warrants describe the “things subject to seizure.” Thus, the State is permitted to access the phones’ contents, as limited by the trial court’s order, in the same way that the State may survey a home, vehicle, or other place that is the subject of a search warrant.

Andrews objects here to the means by which the State seeks to effectuate the searches authorized by the lawfully issued search warrants — compelled disclosure of his cellphones’ passcodes — which Andrews claims violate federal and state protections against compelled self-incrimination. The Fifth Amendment right against self-incrimination applies only when the accused is compelled to make a testimonial communication that is incriminating. Actions that do not require an individual to disclose any knowledge he might have or to speak his guilt are nontestimonial and therefore not protected. In contrast to physical communications, if an individual is compelled to disclose the contents of his own mind, such disclosure implicates the Fifth Amendment privilege against self-incrimination.

A counter point is that disclosing one’s private text messages is akin to disclosing the contents of one’s mind. The contents just happened to have been reduced to writing on a prior occasion.