Minde Participates as Amicus Curiae in Groundbreaking New Jersey Supreme Court Case on Cellphone Passcodes

New Jersey’s highest court recently held that law enforcement authorities can compel defendants to turn over their phone passcodes in order for them to retrieve information from the device through a search warrant. In a 4-3 opinion, the majority of the Supreme Court of New Jersey agreed that production of cellphone passcodes is testimonial in nature, but then went on to apply the foregone conclusion exception to hold that the passcodes must be released in light of a search warrant for the phone. Justice LaVecchia authored a dissent that argued that the information is protected by the U.S. Constitution’s Fifth Amendment right against self-incrimination because it is part of the defendant’s thoughts, which cannot and should not be compelled.

Brandon D. Minde, a partner and chair of the firm’s criminal defense practice group participated on the brief for amicus curiae New Jersey State Bar Association, which argued in support of the issues raised in the minority opinion against forced disclosure of “mental thoughts.” Minde, a former prosecutor, is certified by the NJ Supreme Court as a Criminal Trial Attorney and is chair of the NJSBA Criminal Law Section.

Minde was quoted in the NJ Star Ledger article on the case: “Brandon Minde, the chair of the New Jersey State Bar Association’s Criminal Law Section, said the organization agrees with the dissenting opinion and will continue to monitor how this decision affects privacy concerns for New Jersey residents. “In a world where right to privacy is constantly shrinking, our Constitutional rights must not,” Minde said.” https://www.nj.com/news/2020/08/defendants-can-be-forced-to-turn-over-phone-passcodes-njs-highest-court-rules.html

Minde was also quoted in the New Jersey Law Journal on the case: “The NJSBA agrees with the issues raised in the minority opinion related to the rapidly evolving nature of technology and the protection individuals should have of their ‘mental thoughts’ in the face of governmental compulsion in a criminal matter,” said Brandon Minde, chair of the NJSBA Criminal Law Section and chair of the criminal defense practice group at Dughi, Hewit & Domalewski in Cranford. In a world where the right to privacy is constantly shrinking, our Constitutional rights must not,” Minde said. “The NJSBA will continue to monitor the case and others that center on the issue of people being forced to disclose their ‘mental thoughts’. This is certainly an issue that will be raised again.” https://www.law.com/njlawjournal/2020/08/11/why-cellphone-passwords-per-divided-nj-high-court-are-not-contents-of-ones-mind/

If you were arrested, or receive a search warrant, or are the subject of a potential criminal investigation in New Jersey, you should be represented by an experienced criminal defense attorney in New Jersey. Please contact Brandon Minde at (908) 272-0200, if you have any questions about your rights in any criminal proceeding.

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