YOUR CELL PHONE PASSCODE IS NOT PROTECTED BY 5TH AMENDMENT SELF INCRIMINATION III
State of New Jersey v. S.M.C. and Y.A.K.
Appellate Docket No.: A-3765-20
Decided September 11, 2020
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark
In a recent unpublished decision, the Appellate Division reviewed whether the requirement of a defendant to turnover his passcode to his cell phone constituted a violation of the 5th Amendment right against self-incrimination.
In S.M.C., Defendants S.M.C. and Y.A.K. shared an apartment in Jersey City. Y.A.K. was a vice president of information of technology for UPS, designed his own app, and “is very computer fluent, literate, [and] has multiple layers of encryption on his devices.”
In April 2020, while borrowing Y.A.K.’s laptop and accessing his password-protected iCloud account, Z.K., another female romantic partner of Y.A.K., discovered sexually explicit videos, photographs, and text messages involving the defendants and R.K., Y.A.K.’s biological son and S.M.C.’s stepson who was twelve years old at the time. The material included multiple photos of S.M.C. performing fellatio on R.K.; photographs of S.M.C. engaging in sexual penetration with a pre-pubescent male child, showing a date stamp of June 2017 and a geo-location of Jersey City; multiple videos of Y.A.K. masturbating R.K.; and a text conversation dated December 6, 2019, between defendants in which Y.A.K. sent S.M.C. a video of him masturbating R.K. Z.K. downloaded the material to an external hard drive and gave it to the police. R.K. later told police that the defendants sexually assaulted him on multiple occasions and that Y.A.K. showed R.K. and his younger brother H.K. pornography.
In addition, the State alleges the following facts. R.K. told police that S.M.C. and Y.A.K. made him have sex with them on multiple occasions between 2017 and 2020. These alleged assaults happened in Jersey City and at R.K.’s paternal grandparents’ (Y.A.K.’s parents’) home in Paramus. H.K. disclosed that on one occasion at Y.A.K.’s parents’ home in Paramus, Y.A.K. brought R.K. and H.K. to the basement bathroom, played pornographic videos on a cell phone, and told them to pull their pants down and “play with themselves.” S.M.C. was Y.A.K.’s “first wife,” and Z.K. was Y.A.K.’s “second wife.” Y.A.K. previously gave Z.K. the passcode to his iCloud account.
In addition, the State alleges the following facts. R.K. told police that S.M.C. and Y.A.K. made him have sex with them on multiple occasions between 2017 and 2020. These alleged assaults happened in Jersey City and at R.K.’s paternal grandparents’ (Y.A.K.’s parents’) home in Paramus. H.K. disclosed that on one occasion at Y.A.K.’s parents’ home in Paramus, Y.A.K. brought R.K. and H.K. to the basement bathroom, played pornographic videos on a cell phone, and told them to pull their pants down and “play with themselves.” S.M.C. was Y.A.K.’s “first wife,” and Z.K. was Y.A.K.’s “second wife.” Y.A.K. previously gave Z.K. the passcode to his iCloud account.
A grand jury returned indictments charging S.M.C. and Y.A.K. S.M.C. was charged with: (1) first-degree aggravated sexual assault, N.J.S.A. 2C:14- 2(a)(l); (2) first-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4(b)(3); and (3) second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(l). Y.A.K. was charged with: (1) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(l); (2) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a); first-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(3); (3) second-degree sexual assault, N.J.S.A. 2C:14-2(b); (4) second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(l); (5) second-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4(b)(5)(a)(i); and (6) third-degree criminal sexual contact, N.J.S.A. 2C:14- 3(a).
By supplementary report dated March 26, 2021, the state listed sixteen devices protected by unknown passcodes that it was unable to access. Thereafter, the State moved for an order requiring disclosure of passwords for fourteen devices, which included eight Apple iPhones, five Apple iPads, and an HP laptop. Defendants opposed the motion.
The Court granted the motion, finding the foregone conclusion applied to the devices, and the defendants were required to turn over the passcodes. Defendants filed an interlocutory appeal. The Appellate Division reversed the decision, finding the trial court had not established beyond a reasonable doubt which device belonged to which particular defendant – something that is required before the foregone conclusion can be applied.
This case is important, as your phone can contain your entire life. Ensuring the State cannot access the privacy of your phone can be vital to a criminal defense. This requires your attorney to raise the appropriate objection regarding the contents of the phone and dispute the search warrant. If the fight becomes about the phone’s passcode and whether you have to give it over to the State, it is too late. Do not let this happen to you. Ensure your attorney understands evidentiary rules to protect your rights and your privacy.
If you have been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. Failing to hire a defense attorney and putting your faith in a public defender could give you the same result as the defendant in this case!
At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Bridgeton, Commercial Township, Deerfield Township, Downe Township, Fairfield Township, Greenwich Township, Hopewell Township, Lawrence Township, Maurice River Township, Millville, Shiloh Borough, Stow Creek Township, Upper Deerfield Township, and Vineland.
