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.
I previously wrote about the ever-declining number of federal criminal trials due to the trial penalty: the additional months or even years added to a sentence after a conviction at trial, as compared to resolving the case by a plea agreement. This article focuses on another factor contributing to the trial penalty: punishment based upon acquitted conduct.
In recent days we have witnessed the President and various pundits scream (or tweet) that the attorney-client privilege is dead or under serious attack. What they are referring to, of course, is the judicially authorized search of Michael Cohen’s home, office and hotel room by the FBI. Cohen is said to be one of the President’s long-time attorneys.