NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0714-19T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MARSHEA ANTHONY,
CHARLES JACKSON, KARON
NEVERS, GILBERTO LARA and
TYDIS ROBERTSON,
Defendants-Respondents.
_______________________________
Submitted September 15, 2020 – Decided September 18, 2020
Before Judges Haas, Mawla and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 19-02-0014.
Gurbir S. Grewal, Attorney General, attorney for
appellant (Lila B. Leonard, Deputy Attorney General,
of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for
respondents (Emma R. Moore, Assistant Deputy Public
Defender, of counsel and on the brief).
PER CURIAM
By leave granted, the State appeals from a series of August 27, 2019 Law
Division orders denying its motion to compel four defendants 1 to disclose the
passcodes to passcode-protected cellphones seized from them pursuant to
Communications Data Warrants previously obtained by the State. The State also
challenges the court's decision to limit its access to the contents of the fifth
defendant's 2 cellphones after requiring him to provide the passcodes to those
devices.
At the time the trial court issued its orders, it did not have the benefit of
our Supreme Court's recent decision in State v. Andrews, ___ N.J. ___ (2020). 3
In Andrews, the Court held that under the foregone conclusion exception to the
Fifth Amendment, a trial court may require a defendant to disclose the passcode
to his or her cellphone if the State can demonstrate that the passcode exists, that
the cellphone was in the defendant's possession when seized, that the defendant
owned and operated the cellphone thereby establishing his or her knowledge of
the passcode, and that the passcode enables access to the cellphone's contents.
1
Marshea Anthony, Charles Jackson, Karon Nevers, and Gilberto Lara.
2
Tydis Robertson.
3
In Andrews, the Court affirmed and reinforced our earlier decision in State v.
Andrews, 457 N.J. Super. 14 (App. Div. 2018). (slip op. at 3, 47).
A-0714-19T4
2
(Id. at 40). If the State establishes that the defendant's knowledge of the
passcode is a foregone conclusion, he or she must provide it to the State, which
may then use the passcode to unlock and search the contents of the cellphone.
Id. at 37 (finding "that the foregone conclusion test applies to the production of
the passcodes themselves, rather than to the phones' contents").
Having reviewed the record presented to us, we summarily remand this
matter for rehearing in light of the Supreme Court's decision in Andrews. In
conducting the remand, the trial court shall give the parties the opportunity to
file written submissions setting forth their positions on the Andrews decision
and, if requested, to present oral argument. The court may also consider whether
the record should be reopened for further testimony or the production of
additional documentary evidence. We imply no view as to what the court should
decide on remand, only that we believe that the court's consideration of the
issues presented would benefit from the additional guidance provided by the
Supreme Court.
Remanded. We do not retain jurisdiction.
A-0714-19T4
3