NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." A lthough 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-1552-19T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER FOSTER,
Defendant-Appellant.
________________________
Submitted September 30, 2020 – Decided October 14, 2020
Before Judges Haas, Mawla, and Natali.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Middlesex County,
Indictment No. 18-08-1216.
Joseph E. Krakora, Public Defender, attorney for
appellant (Morgan A. Birck, Assistant Deputy Public
Defender, of counsel and on the brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
By leave granted, defendant appeals from a Law Division order
compelling him to provide the State with the passcode to a passcode-protected
cellphone seized from him pursuant to a Communications Data Warrant. 1
At the time the trial court issued its order, it did not have the benefit of
our Supreme Court's recent decision in State v. Andrews, ___ N.J. ___ (2020). 2
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; the
cellphone was in the defendant's possession when seized; the defendant owned
and operated the cellphone thereby establishing his or her knowledge of the
passcode; and the passcode enables access to the cellphone's contents. (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 th en 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").
1
We stayed this order pending our consideration of this appeal.
2
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-1552-19T1
2
Contrary to the Supreme Court's ruling in Andrews, the trial court did not
make any findings of fact or conclusions of law on the issue of whether
defendant exercised possession, custody, or control of the cellphone or knew the
passcode needed to unlock the device. Therefore, we are unable to determine
whether the foregone conclusion exception to the Fifth Amendment applies to
the case at hand.
Accordingly, we summarily remand this matter for rehearing in light of
the Supreme Court's decision in Andrews. Because the facts underlying the
parties' competing legal arguments appear to be in sharp dispute, the court
should conduct an evidentiary hearing and, as required by Rule 1:7-4, render a
decision supported by findings of fact and conclusions of law on the issues
presented.
Remanded. We do not retain jurisdiction.
A-1552-19T1
3