New Jersey Appellate Division
Clarifies Cell Phone Passcode Privacy, Severance of Charges, and Persistent Offender Sentencing
On August 19, 2025, the Appellate Division of the Superior Court of New Jersey released its opinion in State v. Tyrone K. Ellison, Docket No. A-2905-22. Although the facts of the case involved disturbing allegations of kidnapping, sexual contact, and narcotics possession with intent to distribute, the appellate issues extended far beyond those individual charges. The opinion is significant because it addresses three recurring themes in modern criminal defense: (1) whether the police may use a defendant’s cell phone passcode without violating the privilege against self-incrimination; (2) whether drug charges should be severed from unrelated violent crime counts in a single trial; and (3) how persistent offender sentencing must be applied after the United States Supreme Court’s recent decision in Erlinger v. United States, 602 U.S. 821 (2024).
At Ratliff Jackson LLP, we represent clients facing the most serious criminal charges in New Jersey, including kidnapping, narcotics distribution, and sex crimes. This blog provides a comprehensive analysis of the Ellison decision through the lens of our experience as a leading New Jersey criminal defense firm. For individuals searching for a New Jersey criminal defense lawyer cell phone evidence case or for those concerned about persistent offender sentencing NJ, this discussion offers both clarity and context.
The Factual Background
The Ellison case began in February 2021 when the defendant offered shelter to a vulnerable individual who had just been discharged from a hospital in Newark after treatment for hypothermia. The encounter escalated into allegations of kidnapping, aggravated criminal sexual contact, physical assault, and narcotics distribution. Police later executed search warrants that uncovered drugs, paraphernalia, and cell phones.
Critical to the appeal was how Detective Scott Weaver obtained the defendant’s passcode. While Ellison was being processed in police custody, he requested his phone to retrieve contact numbers. Weaver stood by as Ellison voluntarily entered his passcode, memorized it, and later provided it to the prosecutor’s office. That passcode gave investigators access to incriminating text messages about narcotics distribution.
After a jury convicted Ellison of kidnapping, aggravated criminal sexual contact, CDS possession with intent to distribute, and related charges, the trial court imposed a sixty-year sentence as a persistent offender under N.J.S.A. 2C:44-3(a), with an eighty-five percent parole bar under the No Early Release Act, N.J.S.A. 2C:43-7.2.
Ellison appealed, raising three main challenges: (1) that the passcode evidence violated his rights under the Fifth Amendment and New Jersey common law protections; (2) that the drug charges should have been severed from the violent crime charges; and (3) that his extended-term persistent offender sentence was unconstitutional under Erlinger.
Cell Phone Passcodes, Privacy Rights, and the Fifth Amendment
The central question was whether police use of the defendant’s passcode violated his privilege against self-incrimination. The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.
New Jersey has long recognized an even broader privilege against self-incrimination under state law. See State v. Muhammad, 182 N.J. 551, 568–69 (2005) (holding that prosecutors may not use a defendant’s silence “at or near” the time of arrest). Unlike federal law, New Jersey prohibits the use of custodial silence as substantive evidence of guilt.
In State v. Andrews, 243 N.J. 447 (2020), the New Jersey Supreme Court extended the foregone conclusion exception NJ to cell phone passcodes. The Court held that although producing a passcode is presumptively testimonial, the privilege may be overcome if the State can demonstrate that the passcode’s existence, possession, and authenticity are already foregone conclusions. The Andrews Court drew upon federal precedent such as Fisher v. United States, 425 U.S. 391 (1976), which first recognized that certain compelled acts of production may fall outside the Fifth Amendment.
In Ellison’s case, the Appellate Division concluded that no Fifth Amendment violation occurred because Ellison voluntarily requested access to his phone and entered the passcode in the officer’s presence. Unlike in State v. McQueen, 248 N.J. 26 (2021), where the New Jersey Supreme Court suppressed surreptitiously recorded phone calls from police headquarters because the defendant had no notice, Ellison knowingly exposed his passcode to law enforcement. The court analogized to the plain-view doctrine: once a defendant voluntarily reveals a passcode in the presence of police, there is no reasonable expectation of privacy.
The court also invoked the inevitable discovery doctrine. Under Nix v. Williams, 467 U.S. 431 (1984), and State v. Sugar, 108 N.J. 151 (1987), evidence is admissible if it would inevitably have been discovered through lawful means. Because prosecutors could have sought an Andrews order compelling disclosure of the passcode, the Appellate Division held that suppression was not warranted.
For defendants, the lesson is clear: once a passcode is voluntarily revealed, suppression arguments are unlikely to succeed. For those searching “Can police use my phone passcode in New Jersey?” the answer after Ellison is yes—if the defendant reveals it voluntarily, the evidence will be admissible.
Joinder and Severance of Charges in New Jersey Criminal Trials
Ellison also argued that his drug charges should have been severed from the kidnapping and sexual contact charges. Rule 3:7-6 of the New Jersey Court Rules permits joinder of offenses that are of the same or similar character or that are connected together as part of a common scheme. Rule 3:15-2 provides relief if joinder is prejudicial.
The Appellate Division emphasized that joinder is favored for judicial economy. See State v. Sterling, 215 N.J. 65, 72 (2013). The test for prejudice is whether a jury could fairly decide each charge separately. See State v. Urcinoli, 321 N.J. Super. 519, 541–42 (App. Div. 1999).
Applying these principles, the court held that severance was not warranted. The CDS evidence was intertwined with the narrative of the kidnapping and assaults. The victim testified that Ellison provided heroin after inflicting physical injury, and text messages from the phone corroborated narcotics distribution. Under State v. Cofield, 127 N.J. 328, 338 (1992), evidence of other crimes is admissible under N.J.R.E. 404(b) if it is relevant to motive, intent, or plan, is similar in kind and reasonably close in time, is proven by clear and convincing evidence, and its probative value is not outweighed by prejudice. The court concluded those factors were satisfied.
For defendants facing both drug possession with intent to distribute charges NJ and unrelated violent charges, Ellison demonstrates that courts will often refuse to sever counts if the evidence is factually connected. Defense counsel must be prepared to confront potentially prejudicial narcotics evidence in joint trials.
Persistent Offender Sentencing and the Impact of Erlinger
The final issue involved Ellison’s sixty-year sentence as a persistent offender under N.J.S.A. 2C:44-3(a). Traditionally, New Jersey judges determined persistent offender eligibility based on prior convictions.
That approach has been fundamentally altered by the U.S. Supreme Court’s recent decision in Erlinger v. United States, 602 U.S. 821 (2024). In Erlinger, the Court held that the Fifth and Sixth Amendments require a jury—not a judge—to determine whether prior convictions justify an enhanced sentence as a persistent offender. This decision extended the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 570 U.S. 99 (2013), all of which established that any fact increasing punishment beyond the statutory maximum or minimum must be found by a jury beyond a reasonable doubt.
In Ellison, the Appellate Division vacated the extended-term sentence and remanded for resentencing in accordance with Erlinger. For New Jersey defendants, this ruling confirms that persistent offender findings are no longer within the sole province of judges. A jury must make that determination.
This development opens the door for many defendants sentenced as persistent offenders in recent years to seek relief. For individuals searching “persistent offender sentencing NJ,” the takeaway is that jury findings are now constitutionally required.
The Broader Implications
The Ellison opinion illustrates several broader trends in New Jersey criminal law.
First, the digital age continues to reshape constitutional doctrine. Cases like State v. Earls, 214 N.J. 564 (2013), which recognized privacy in cell phone location data, demonstrated New Jersey’s leadership in expanding digital privacy rights. Yet Ellison shows that privacy protections have limits. Voluntary disclosure of a passcode eliminates any expectation of privacy.
Second, trial courts will continue to favor joinder of charges, particularly when narcotics and violent offenses arise from the same factual episode. Severance will be rare unless the evidence is wholly unrelated.
Third, sentencing law in New Jersey is undergoing seismic change. The combination of Apprendi, Blakely, Alleyne, and now Erlinger ensures that juries, not judges, must determine facts that enhance punishment. Persistent offender sentencing in New Jersey will require new procedures and careful litigation.
Conclusion
State v. Ellison provides essential guidance on three recurring questions in New Jersey criminal defense: the admissibility of cell phone passcode evidence under the foregone conclusion exception NJ, the likelihood of success on motions to sever drug possession with intent to distribute charges NJ from violent crime counts, and the application of persistent offender sentencing NJ after Erlinger.
At Ratliff Jackson LLP, we are uniquely positioned to handle such cases. As a multi-million-dollar litigation firm, we combine constitutional sophistication with courtroom experience, ensuring that every motion to suppress, every severance argument, and every sentencing challenge is pursued with unmatched rigor.
For individuals searching for a New Jersey criminal defense lawyer cell phone evidence case, or for those confronting enhanced punishment as a persistent offender, our attorneys stand ready to provide elite representation. To schedule a confidential consultation, call 856-209-3111 or visit our consultation request page. Our office is located at 811 Church Rd., Cherry Hill, NJ 08002, and we proudly serve clients throughout South Jersey and Southeastern Pennsylvania.