In an extremely controversial 4-3 opinion, the New Jersey Supreme Court upheld trial and Appellate Division rulings compelling a defendant to provide his cellphone passcode pursuant to a search warrant. The defendant was an Essex County Sheriff’s Officer accused of providing a drug dealer confidential information about an investigation into the dealer and his co-conspirators. The drug dealer gave evidence establishing that the sheriff’s officer provided him information about undercover surveillance of his vehicle and phones, as well as other case related information. Law enforcement confirmed there were numerous texts and calls between the sheriff’s officer and the drug dealer. Law enforcement obtained a search warrant for the officer’s cellphones, but were unable to access them without the defendant’s passcodes or PINs.

The State moved to compel the officer to disclose the passcodes to his two iPhones. The defendant opposed the motion, claiming that compelled disclosure of his passcodes violated his protections against self-incrimination afforded by New Jersey’s common law and statutes, and the Fifth Amendment to the United States Constitution. The trial court rejected those arguments, ruling that “the act of providing a PIN, password, or passcode is not a testimonial act where the Fifth Amendment or New Jersey common and statutory law affords protection.” The court reasoned that “[a]llowing the State to access the call logs and text messages on [the] iPhones will add little to nothing to the aggregate of the Government’s information.” Further, “any testimonial act contained in the act of providing the PIN or passcode is a foregone conclusion because the State has established with reasonable particularity that it already knows that (1) the evidence sought exists, (2) the evidence was in the possession of the accused, and (3) the evidence is authentic.”

The trial court limited access on the cellphones “to that which is contained within (1) the ‘Phone’ icon and application on the two iPhones, and (2) the ‘Messages’ icon and/or text messaging applications used by the defendant during his communications with the gang member. The court also ordered that the search be performed by the State, in camera, in the presence of defense counsel and the court, with the court reviewing the PIN or passcode prior to its disclosure to the State.

In upholding the lower courts’ decisions, the Supreme Court agreed that compelled production of the passcodes fell within the “foregone conclusion” exception. The Court found the State demonstrated the existence of passcodes and the defendant’s possession and operation of the cellphones. The passcodes’ self-authenticating nature rendered the issue one of surrender, not testimony. Thus, the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination was applicable.

The Court concluded that neither the Fifth Amendment’s privilege against self-incrimination nor New Jersey’s common law and statutory protections protect a criminal defendant from compelled disclosure of the passcodes to his cellphones.

In a strongly worded dissent Justice LaVecchia wrote in part:

In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts — the contents of our minds — from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.

We are at a crossroads in our law. 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? In my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law.

The Court’s outcome deviates from steadfast past principles protective of a defendant’s personal autonomy in the face of governmental compulsion in a criminal matter. Those same principles should apply even in the face of the latest challenge presented by new technology.

The Court’s decision here is contrary to other state and federal courts who have examined this very issue, making this matter and the overarching issue ripe for the review of the United States Supreme Court. Until such a review is conducted by the United States Supreme Court, defense counsel must advise their clients that they will be held in contempt for failure to reveal their passcodes when a validly issued search warrant is obtained.

This is an ever-developing and expanding area of law. It is important to hire well-versed and adept counsel when dealing with law enforcement’s intrusion into your personal data. We at Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

Every day we are bombarded with news about the ever-expanding investigation into the President and the alleged Russian connection to his staff. The news media has been filled with headlines and postings about people who are labeled a “person of interest,” a “subject,” a “target” or a “witness”. Do these terms have specific meanings to federal law enforcement? Yes and no. In the federal system, the term “person of interest” is not officially used. It’s use became widespread by some in law enforcement and the media back in 1996 during the Olympic Park bombing in Atlanta when it was announced that a security guard was a person of interest in the bombing. It euphemistically means that someone has suspicions about the person but not sufficient evidence. There are, however, very specific Department of Justice definitions for a target, subject or witness of an investigation.

A target is someone that the government has substantial evidence linking him or her to criminal activity and is close to presenting that evidence to a grand jury for potential charges (or a judge for an arrest warrant on a complaint). In criminal cases, the U.S. Attorney’s Office may send a person what is known as a “Target Letter”. The letter simply states that the person is a target of a federal criminal investigation and urges the target to obtain counsel and to meet with the prosecutors and agents on the investigation. A target of an investigation absolutely needs experienced criminal defense counsel representing her.

The technical definition of a subject is: a person whose conduct is within the scope of the grand jury’s investigation. A subject of an investigation is someone that the prosecutor and agents believe to be involved in criminal activity but do not yet have substantial evidence against. Often, law enforcement wants to interview a subject of an investigation, either informally or before the grand jury, in an effort to obtain sufficient evidence against the person. Being the subject of an investigation is a more nebulous category, and one that requires the advice and representation of experienced criminal defense counsel. Both targets and subjects have a right to assert the Fifth Amendment right to remain silent and refuse to testify without a grant of immunity.

The reason a subject of an investigation should immediately consult experienced counsel is that agents often attempt to interview the person while serving a grand jury subpoena to appear and testify and/or produce documents. The agents will typically be polite and friendly, offering to talk about the matter with the person to gather facts about their investigation. They often go to the person’s home or office early in the morning or later in the evening in an attempt to catch the person off-guard. Often the person talks because they don’t want the agents to think that they have anything to hide or that they are involved in any way. Since the person is not “in custody,” the agents do not have to warn the person of their right to remain silent and to consult an attorney if they desire.

A witness is someone that the government has no reason to believe has any criminal exposure and simply has relevant information about an ongoing investigation. A witness usually provides a statement either during a field interview or at the U.S. Attorney’s Office. A witness may also be called to testify before the grand jury. It is often advisable for a witness to be represented by counsel as well. A witness can be charged with lying before the grand jury or to a federal agent.

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Stahl Gasiorowski Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success.

Our offices are located in Mountainside, New Jersey and Manhattan. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com. Or Contact us online.

Violent police encounters and police officer involved shootings have dominated the national press for some time. Such encounters have led to mass protests; much-needed examinations of police policies, procedures and training; and pleas for better relations between the police and the communities they serve. One result has been the call for body worn video cameras that record encounters between police and citizens in real time. While not perfect, these body worn cameras can provide valuable evidence of what transpired at a given moment during what may have been a high stress encounter.

Such technology has been on display for many years. We have all witnessed the value-added, positive results in professional sports of the instant replay. When a referee’s call is disputed, within a matter of seconds multiple camera angles can be reviewed to determine whether the eyewitness – the official – made the correct call. Whether it’s a first down or a penalty in football or a 118 mph serve in tennis, today’s cameras with multiple angles and slow motion reduce human error. The instant replay provides a more accurate review of a fast-paced situation on the field.

Advances in police work have allowed similar reviews. For more than a decade, many police departments have video cameras mounted in their patrol cars that record motor vehicle stops, car chases and DWI field balance tests at the side of the road. Time and again these videos have proven their worth in confirming the report and testimony of the officer, or refuting it. In many cases, the video and audio recordings have been the “best evidence” of what actually transpired. These car-mounted cameras, however, can only record a limited field of view from a car and only when the officer positions the car stop or encounter with the person in the camera’s view.

Since many more police encounters occur beyond a car stop and the range of car mounted video cameras, the importance of body cameras has become self-evident. Technology has advanced so that cost-effective, light weight, portable and reliable body cameras can be worn by the average police officer. These cameras have the ability to record both video and audio of an encounter as in happens. Thus, the movements, actions and words of the officer, the person being questioned and the surrounding crowd can be memorialized for later review by both the defense attorney and the prosecutor. The National Association of Criminal Defense lawyers (NACDL), a highly- respected organization, recently released results of its Body Camera Task Force. The review examined the use of body worn cameras over a two-year period. The review resulted in a number of recommendations to enhance the accountability, transparency and evidentiary availability for use in court cases. Standardization of policies and procedures for the use of body worn cameras will enhance their reliability and potential use in reviewing many encounters. And while body worn cameras will not be dispositive in every case, as they can only capture certain angles and moments in time, they will certainly add valuable information to independent views of unfolding, stressful encounters between the police and civilians. Systematic use of these cameras will help insure the safety of both the police and the public. When both sides are aware that they are being recorded, actions may be tempered and behavior may be more civil. A number of studies have demonstrated that when body cameras are worn the number of complaints against the police have dramatically reduced and the use of force has substantially decreased.

Opposition to body worn cameras by some members of law enforcement is seemingly a combination of issues of privacy, not wanting every encounter to be scrutinized by supervisors and citizen complaint boards, and a general reluctance to change. Hopefully reason will prevail and body worn cameras will be viewed by all as another advancement for the safety and protection of the public and police.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rgs@sgdefenselaw.com.

Between the President’s accusation that the prior President tapped his phones, and WikiLeaks recent exposure of alleged CIA hacking tools and techniques, much has been reported in recent days about the government’s ability to intercept and listen to our conversations over our cellphones; computers; smart home devices such as televisions and baby monitors; products such as Alexa and Amazon Echo; encrypted messaging apps such as Signal, WhatsApp and Telegram; and home security cameras and systems. All of these devices provide potential ways for the government and hackers to enter our seemingly private worlds and eavesdrop. The difference between the government and a hacker, however, is that the government must obtain a court authorized warrant to do so.

Federal and state law enforcement investigating many types of criminal activities can apply for a court authorized warrant to intercept calls, text messages, emails and other forms of communications if they demonstrate that there is probable cause to believe that the person is committing the specified unlawful activity and using the specified type of communication device in furtherance of the criminal activity. In addition, law enforcement must demonstrate to the judge that normal investigative techniques have either failed, or would likely fail, to uncover the full scope and extent of the activity or coconspirators. These normal investigative techniques include, interviews, subpoenas, search warrants, undercover investigations and the use of informants.

In most cases of foreign espionage, terrorism and foreign agents, law enforcement must obtain a court order through a FISA application to a FISC court (Foreign Intelligence Surveillance Act authorized Foreign Intelligence Surveillance Court) to intercept communications. The application again requires probable cause that the target of the intercept or surveillance is a foreign power or agent committing certain offenses.

Hackers, however, require nothing more than the skill and access to these common household devices. Routers, security cameras, baby monitors and the like are all known as IoTs – Internet of Things. These products are vulnerable to compromise by malware because of poor factory administrator security settings that are easily hacked. Thus, your family’s security camera can be hacked and used to spy on private activities within your home. Similarly, the camera on your laptop for Skype calls and video conferencing can be hacked to spy on you. While this is certainly a frightening invasion of privacy, and highly illegal, there are many readily available articles by experts that offer detailed instructions on how to change the factory settings on these devices to make it much harder for hackers to get through.

Authorized law enforcement interceptions compel the provider of the service to cooperate and assist law enforcement in effectuating the intercepts and prohibit the provider from revealing the interceptions to its customer. While there are strict compliance standards set by law and reporting requirements at specified intervals to the court, these interceptions not only capture alleged communications about criminal activities, but many times capture innocent conversations, texts, emails and the like between unsuspecting third parties and the targets themselves. It is a very intrusive type of investigative technique that must be used sparingly and adhere to strict guidelines.

The evidence gathered from such interceptions may provide powerful evidence against the accused. However, in many cases those communications are claimed by law enforcement to involve “coded language” that requires “interpretation” by an expert, usually another agent or detective claiming to have specialized training and experience, to inform the jury what the targets “really meant.” Thorough examination of those conversations, experience and vigilance is required by the accused’s attorney to ensure that the supposed expert witness is not misinterpreting the meaning of the conversation and providing unreliable and misleading testimony to the jury. Experienced criminal defense counsel can also attack the basis for the warrant to intercept the communications and the procedures followed during and after the period of interception in an effort to suppress any evidence gathered through the interceptions.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.

In many types of criminal cases, the right expert can be invaluable. Whether it is a forensic accountant in a complex fraud or tax investigation; a medical or billing expert in a healthcare fraud investigation; a forensic psychiatrist for a sex abuse or child pornography case; a computer expert for a computer crimes matter; or a drug or gang expert in a serious drug case, the proper expert retained early in the investigation can assist the client’s criminal defense attorney in his or her efforts to prevent the charges from being filed, or to develop a solid defense to aid in plea negotiations or to prevail at trial.

In many types of investigations, the government employs or hires its own experts to analyze a wide variety of data, information or documents. These government “experts” may be recognized in their fields, or they may be analyzing and opining on evidence in fields in which they are not truly qualified. It is critical in such cases, that the defense attorney have at his disposal the best possible expert in the relevant field of inquiry to conduct their own review and analysis of the evidence and to potentially refute the conclusion of the government expert.

In recent years, there have been notable cases that have demonstrated that government experts have either overreached or provided false reports and testimony. For instance, state drug labs around the country have discovered state laboratory technicians that have failed to conduct drug tests on tens of thousands of drug seizures and simply falsified their reports. Other so-called experts have opined on subjects that do not meet generally accepted scientific standards, including hair and fiber analysis. Often, the testimony by these alleged experts have resulted in convictions based on false or unsound results.

In many other types of situations, the right expert can analyze the evidence and discover the weaknesses or fallacies in the government’s theory of the case. The ability to independently analyze varied and complex financial transactions, computer code, hundreds of emails and attachments, billing records or scientific results can mean the difference between a conviction or acquittal.

Aggressive, experienced defense attorneys use experts as early in the process as possible. The mechanics are fairly straightforward, but important to protect the client’s interests. The law firm retains the expert in an effort to preserve the attorney-client privilege. The client is responsible for the fees and expenses, but the expert communicates with the law firm rather than with the client directly. Since in most cases costs are an issue, the attorney must work within the client’s budget in both deciding which expert to retain and the scope of the work required. In many cases, the expert’s work will provide leverage in plea negotiations by highlighting the weaknesses in the government’s case or presenting alternate theories of the transactions or evidence. In other cases, it may be necessary for the expert to testify at trial. In either case, the expert’s training, experience and reputation all come into play.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals being investigated or charged with serious federal and state crimes. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.

It’s 6 a.m. or 8 p.m., your doorbell rings and two people are standing outside holding up their badges and credentials. They say they are Special Agents with the FBI and would like to talk with you for just a few minutes about something important. They ask if they could come in to speak with you privately. Caught off-guard, and not wanting them to think that you have anything to hide, you invite them in (and, of course, you don’t want your neighbors to see them talking to you on your front steps). The agents are “friendly” and just have a few questions to get your input, your side of things. You decide to talk to them, only for a few minutes, in the comfort of your own home or office. At the end, they thank you for your time and hand you either a grand jury subpoena or a “target letter.” They say that you should get an attorney, or if you can’t afford one, the court will arrange for an attorney for you.

After they leave, you start to panic. What did I say? How much did I tell them? Did I implicate myself or others? You start to look for an attorney. You can’t ask your family or friends who they hired last time the FBI visited them because you don’t know anyone who ever faced such a situation. So, you scour the internet to find an experienced criminal defense attorney, one with a lot of federal experience because it’s a federal investigation.

The next day you’re in the attorney’s office. After talking to the lawyer you realize that what you thought was an innocuous 15 minute chat with the FBI was actually an hour and a half where you told them some things, but not others. You learn that it is a federal crime to lie to the agents. You learn that it doesn’t matter that they didn’t read you your rights, like in the movies, because you weren’t “in custody.” When you tell the lawyer that you only spoke to them because you didn’t want the agents to think you were involved or guilty, the lawyer tells you that the agents already think that you’re involved, that’s why they were at your house to interview you in the first place. You then learn that there were two agents so that the interview was witnessed by two of them for credibility later on if you dispute what you said. You learn that a “target letter” is issued by an Assistant U.S. Attorney because she believes that you are involved in criminal activity and wants you to come in with your attorney to negotiate a plea of guilty. It starts to dawn on you that it was a mistake to say anything to the agents.

So, what should you do in such a situation? The safest course would be to politely tell the agents that while you would like to talk with them, you need to contact your attorney and that he will get back to them. Ask them for their business cards so that you can give the information to your attorney. If they don’t have cards, write down their names, agency and contact information. Do not under any circumstances talk with them about the subject matter of their investigation. After they leave, contact an experienced criminal defense attorney to discuss your rights, potential exposure and your options.

If you did talk with the agents, experienced criminal defense counsel can help you get through the situation and protect your rights going forward. The task will be to mitigate any statements made and develop an overall strategy to succeed.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.