STATE OF NEW JERSEY v. CHRISTOPHER FOSTER

NOT FOR PUBLICATION WITHOUT THE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
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