Suspect can refuse to disclose cellphone passcode under Fifth Amendment

A suspect had a Fifth Amendment right to refuse to give police his cellphone passcode, the Utah Supreme Court has ruled, reported the ABA Journal.

In a Dec. 14 opinion citing that right, the state supreme court reversed the conviction of Alfonso Valdez for kidnapping and assaulting his ex-girlfriend. Prosecutors had elicited testimony at trial about Valdez’s refusal to provide his passcode and told jurors in closing arguments that the refusal undermined one of his defenses.

The Utah Supreme Court said prosecutors violated Valdez’s Fifth Amendment right against self-incrimination when they referred to his refusal, and the error was not harmless.

Ars Technica and the Salt Lake Tribune have coverage, while the Legal Profession Blog has highlights from the opinion.

Valdez’s ex-girlfriend told police that she agreed to meet Valdez outside her workplace after he said in a text he had some of her mail and wanted to give it to her. When the ex-girlfriend walked up to Valdez’s SUV, he pointed a gun at her and told her to get in his vehicle, she said. After she complied, Valdez allegedly assaulted her.

The defense claimed that the interaction was consensual.

Police weren’t able to locate the ex-girlfriend’s cellphone after the incident, but they seized Valdez’s cellphone to verify that he had sent the text. Police obtained a warrant to acquire the cellphone contents.

The Fifth Amendment’s privilege against self-incrimination applies when a communication “is compelled, testimonial and incriminating,” the Utah Supreme Court said. On appeal, the state conceded that the password was compelled and incriminating but claimed that it was not testimonial in nature.

Providing a passcode, the state argued, is not a testimonial communication because it is like handing over a physical key, a nontestimonial act. The Utah Supreme Court disagreed.

Providing a cellphone passcode is testimonial and would explicitly communicate information from the suspect’s mind, making the revelation testimonial in nature, the state supreme court said.

The state also argued that, even if the password is testimonial, the Fifth Amendment does not apply under the “foregone conclusion” exception. It was a foregone conclusion that Valdez owned the phone and knew the password, the state argued, so turning over the passcode would disclose what police already knew.

But the foregone conclusion exception applies only in cases considering whether an “act of production,” such as turning over documents, has testimonial value, the Utah Supreme Court said. At issue is whether the act of production is testimonial in nature, as when producing the documents amounts to a concession that the documents exist and are controlled by the suspect.

“But here,” the Utah Supreme Court said, “we have a verbal communication that would have explicitly communicated information from Valdez’s mind, so we find the exception inapplicable.”

The state supreme court acknowledged that the “analytical framework” would be different if Valdez had been asked to hand over an unlocked cellphone, which would be a compelled act of producing evidence.

The Utah attorney general’s office told the Salt Lake Tribune in a statement that it is disappointed in the ruling and “is evaluating options for further review.”

In a post at the Volokh Conspiracy, Orin S. Kerr, a professor at the University of California at Berkeley School of Law, said the decision “might be a good candidate for U.S. Supreme Court review” to clear up the “total mess” of lower court decisions on the issue. The state supreme court had cited Kerr’s law review articles in its opinion.

Weighing against cert, however, is that Valdez’s case concerns compelled disclosure of a password, rather than compelled unlocking of a cellphone. If the Supreme Court was to accept the case, “it might have to only answer the compelled disclosure issue, and then save the compelled unlocking issue for another day,” Kerr said.

The case is State of Utah v. Valdez.

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