A former Essex County sheriff's officer accused of obstructing a criminal investigation into a member of his motorcycle club has been ordered to make the contents of his cell phones accessible to law enforcement.
The Supreme Court of New Jersey ruled on Monday that defendant Robert Andrews must comply with a search warrant by turning over the passcodes for his two phones. The court's decision was approved by four of the seven justices considering the matter.
Andrews was charged with official misconduct, hindering, and obstruction in 2016 for allegedly sharing information about an ongoing law enforcement investigation with the investigation's suspect.
As part of the investigation, search warrants were drawn up requesting access to text messages and records of phone calls exchanged between Andrews and his fellow club member.
The defendant's attorney, Charles J. Sciarra, argued that Andrews should not have to surrender the passcodes of his cell phones because the Fifth Amendment to the US constitution states that no person "shall be compelled in any criminal case to be a witness against himself."
However, the court made the majority decision that Andrews' passcodes were not “testimonial” and drew attention to the fact that Andrews had not challenged the search warrants.
Justice Lee Solomon’s opinion found “neither federal nor state protections against compelled disclosure shield Andrews’ passcodes.”
Solomon wrote that under the terms of the unchallenged and lawfully issued search warrants, New Jersey had “the right to the cellphones’ purportedly incriminating contents.”
The decision to force Andrews to share his passcodes with law enforcement caused a dissenting justice to raise an important question regarding how much privacy American smartphone users can expect to have in the future.
Author of the dissenting opinion Justice Jaynee LaVecchia wrote: “Will we allow law enforcement—and our courts as their collaborators—to compel a defendant to disgorge undisclosed private thoughts—presumably memorized numbers or letters—so that the government can obtain access to encrypted smartphones?”
Describing the ruling's impact on the right of New Jersey residents to plead the fifth, Matt Adams, vice president of the Association of Criminal Defense Lawyers of New Jersey, said it “is taking a stick of dynamite to that fundamental right and imploding it from within."