Fox Attorney Will Argue Cutting-Edge Cell Phone Search Case as Amicus for Criminal Defense Attorney Group

May 9, 2019 – Press Releases

A team of Fox Rothschild attorneys has helped to pave the way for a potentially ground-breaking court ruling on the right to privacy in one’s cell phone now that the New Jersey Supreme Court has agreed to decide the question of whether a criminal defendant can be ordered to disclose the password to a mobile device so that authorities can search its contents.

In State of New Jersey v. Andrews, the justices agreed to hear a rare pre-trial appeal in a case where the trial judge ordered the defendant to disclose his cell phone password, notwithstanding Fourth and Fifth Amendment challenges raised by his defense counsel.

The Superior Court of New Jersey, Appellate Division upheld the trial court’s ruling, and ordered the case to proceed to trial, but the state Supreme Court has now put the trial on hold and added the case to its fall docket. As a result, New Jersey is poised to become the latest in a small, but growing number of states to tackle this cutting-edge question.

Fox Rothschild Partner Matthew S. Adams argued in an amicus brief to the New Jersey Supreme Court that “the topic of the compelled production of cell phone passwords is of such great Constitutional importance that an immediate decision is necessary to protect against unnecessary governmental intrusion into the private lives of citizens.”

Adams is Co-Chair of Fox’s White Collar Criminal Defense & Regulatory Compliance group. He filed the friend-of-the-court brief along with Fox attorneys Marissa Koblitz Kingman, Jordan Kaplan and Victoria Salami on behalf of the Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ), the local chapter of the National Association of Criminal Defense Lawyers (NACDL), with support from the NACDL's Fourth Amendment Law Center in Washington, DC. Adams is an officer of the ACDL-NJ.

Adams will argue the case as amicus before the New Jersey Supreme Court this fall.

The case is significant, Adams said, because it is one of only a handful of cases currently making their way through the courts in various states that raise questions of “bedrock constitutional rights in the modern digital age.”  He added, “the term ‘compel,’ when used to refer to a criminal defendant, raises issues of the highest constitutional magnitude.”

Prior to the New Jersey Appellate Division’s ruling that will now be reviewed by New Jersey Supreme Court, only one other intermediate appellate court had approved such a compulsory password disclosure for a cell phone search. Adams noted that the Florida appellate panel's decision was ultimately reversed less than two years later.

“The New Jersey Supreme Court has a proud tradition of protecting individual rights, and this case could set an important precedent that will guide courts throughout the country,” Adams said.

Adams said various commentators have criticized the New Jersey Appellate Division's decision now to be heard in an interlocutory appeal by the New Jersey Supreme Court, as "illogical," "contrary to constitutional principles," and a "miscarriage of justice."

On this same subject, Adams and Koblitz Kingman authored a piece for the New Jersey Law Journal late last year entitled, “NJ Needs Protections Against Compelled Disclosure of Mobile Device Passwords.”  In 2016, Adams and Kaplan authored another piece for the New Jersey Law Journal entitled, “High Stakes Digital CSI,” in which the Fox duo analyzed the digital evidence challenges presented by the terror attack in San Bernardino, California on December 2, 2015.  The Fox team led by Adams responsible for this latest high profile digital evidence result has become particularly known for its sophisticated command of emerging issues at the intersection of technology and law.