Passcodes and Self-Incrimination (Part 6)

The New Jersey Supreme Court continued in relevant part: Based on the record in this case, compelled production of the passcodes falls within the foregone conclusion exception. 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 exception thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones. The Court would reach the same conclusion if it viewed the analysis to encompass the phones’ contents. The search warrants and record evidence of the particular content that the State knew the phones contained provide ample support for that determination. This was no fishing expedition.

Turning to state law, the relevant statute and corresponding rule of evidence explicitly afford a suspect the “right to refuse to disclose . . . any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate.” N.J.S.A. 2A:84A-19; N.J.R.E. 503 (emphasis added). For the right of refusal to apply, therefore, a matter must first be found to be incriminating. N.J.S.A. 2A:84A-18 and N.J.R.E. 502, in turn, define the circumstances under which a matter will be deemed incriminating: “(a) if it constitutes an element of a crime against this State, or another State or the United States, or (b) is a circumstance which with other circumstances would be a basis for a reasonable inference of the commission of such a crime, or (c) is a clue to the discovery of a matter which is within clauses (a) or (b) above . . . .”

Where ownership and control of an electronic device is not in dispute, its passcode is generally not substantive information, is not a clue to an element of or the commission of a crime, and does not reveal an inference that a crime has been committed. Finding that the passcodes are therefore not protected by statute, the Court considers state common law protections.

While ownership and control may not be issues at this stage of the appellate proceedings, they likely were before the trial court. Since the issue was raised before the trial court, this analysis should not apply.