Criminal suspects can refuse to provide phone passcodes to police under the US Constitution’s Fifth Amendment privilege against self-incrimination, according to a unanimous ruling issued today by Utah’s state Supreme Court. The questions addressed in the ruling could eventually be taken up by the US Supreme Court, whether through review of this case or a similar one.
The case involves Alfonso Valdez, who was arrested for kidnapping and assaulting his ex-girlfriend. Police officers obtained a search warrant for the contents of Valdez’s phone but couldn’t crack his passcode.
Valdez refused to provide his passcode to a police detective. At his trial, the state “elicited testimony from the detective about Valdez’s refusal to provide his passcode when asked,” today’s ruling said. “And during closing arguments, the State argued in rebuttal that Valdez’s refusal and the resulting lack of evidence from his cell phone undermined the veracity of one of his defenses. The jury convicted Valdez.”
A court of appeals reversed the conviction, agreeing “with Valdez that he had a right under the Fifth Amendment to the United States Constitution to refuse to provide his passcode, and that the State violated that right when it used his refusal against him at trial.” The Utah Supreme Court affirmed the court of appeals ruling.
Case possibly ripe for Supreme Court review
The ruling offered some commentary on the developing legal questions about device passcodes:
The prevalence of passcodes that encrypt the information on electronic devices—which are often seized by law enforcement while investigating criminal conduct—has raised important questions about how the Fifth Amendment extends to law enforcement’s efforts to unlock these devices and decrypt the contents inside. These questions have proven to be especially complex where law enforcement attempts to access the contents of a seized device by means that do not require the suspect to disclose the actual passcode—like, for example, obtaining an order to compel the suspect to provide an unlocked device.
The Valdez case does not involve an order to compel a suspect to unlock a device. Instead, “law enforcement asked Valdez to verbally provide his passcode,” Utah justices wrote. “While these circumstances involve modern technology in a scenario that the Supreme Court has not yet addressed, we conclude that these facts present a more straightforward question that is answered by settled Fifth Amendment principles.”
Ruling against the state, the Utah Supreme Court said it “agree[s] with the court of appeals that verbally providing a cell phone passcode is a testimonial communication under the Fifth Amendment.”
Berkeley Law Professor Orin Kerr wrote today that the case could head to the US Supreme Court. “One of the major issues in the law of digital evidence investigations is how the Fifth Amendment privilege against self-incrimination applies to unlocking phones,” Kerr wrote.
So far, “the lower court case law is a total mess,” according to Kerr. “No one can say what the law is. And I’ve been waiting for a case to come down that might be a good candidate for US Supreme Court review to clear up the mess.”
Split among state Supreme Courts
Kerr argues that the Valdez case may be worthy of Supreme Court review partly because “there’s a state Supreme Court split on how the Fifth Amendment privilege applies to orders to compel a password in order to execute a warrant for a phone.” The Utah Supreme Court ruling is similar to one from the Pennsylvania Supreme Court, but it conflicts with a ruling by the New Jersey Supreme Court.
Another factor in the Valdez case’s favor is that it has a final judgment. In most other compelled unlocking cases, the government obtains an order requiring a defendant to provide the password or unlock the phone, and “whether the order can be enforced then goes up on appeal while the rest of the case is still pending,” Kerr wrote.
One complication is that “Valdez is a compelled disclosure case, not a compelled unlocking case,” Kerr wrote. “There are state supreme court splits on both compelled disclosure and compelled unlocking. But the issues are potentially very different, as the Valdez court explored in depth.”
The Supreme Court taking up Valdez might only solve “half of the puzzle,” as Kerr wrote: “The record in Valdez is that he was asked to provide the passcode, not to enter it. And the issue is whether the government could have testimony on that. If the Supreme Court were to take Valdez, it might have to only answer the compelled disclosure issue, and then save the compelled unlocking issue for another day.”
Returning to our summary of the Valdez ruling, the Utah Supreme Court had to decide “whether the State’s references at trial to Valdez’s refusal to provide his passcode constituted impermissible commentary on his decision to remain silent.” The court ultimately rejected the state’s argument that the “foregone conclusion” exception to the Fifth Amendment applies to this case.
The state argued “that, even if providing a passcode could be considered testimonial, the only meaningful information it would have conveyed here was that Valdez knew the passcode to the phone,” the court said. Because police already knew the phone belonged to Valdez and that he would know his own passcode, the state contended that “this information would not convey anything new to law enforcement” and that it thus “triggers the foregone conclusion exception.”
Providing passcode is “testimonial”
The Utah Supreme Court disagreed with the state as follows:
We hold that verbally providing a cell phone passcode to law enforcement is testimonial for Fifth Amendment purposes. Since the disclosure of a passcode involves traditional oral testimony, the act-of-production analysis urged by the State does not apply. And for the same reasons, the foregone conclusion exception is inapplicable. This exception has been discussed twice by the Supreme Court, and both times, the case involved the compelled act of producing evidence. The Supreme Court has not extended the exception to cover verbal testimonial statements, and we see no justification to do so either.
There is a difference between communicating a passcode to police and physically providing an unlocked phone to police, the court said. Though these two acts “may be functionally equivalent in many respects, this functional equivalency is not dispositive under current Fifth Amendment jurisprudence,” the court said. “We conclude that the act-of-production analytical framework makes sense only where law enforcement compels someone to perform an act to unlock an electronic device.”
The ruling mentioned that officers may ask suspects to unlock phones with biometric means, like fingerprint or facial identification. Providing a passcode verbally could be called “ordinary testimony,” but unlocking a phone with your fingerprint or face is a physical act. These “two scenarios present distinct issues under the Fifth Amendment,” the court said.
The “foregone conclusion” exception applies “in cases analyzing whether an ‘act of production’ has testimonial value because it implicitly communicates information,” the court said. But in Valdez, “we have a verbal communication that would have explicitly communicated information from Valdez’s mind, so we find the exception inapplicable.”
The state also argued that it “did not violate Valdez’s rights by commenting on his silence at trial” and “that such commentary was a fair response to Valdez putting the contents of the phone at issue.” But the Utah Supreme Court rejected the state’s claim that the prosecutor’s comments on Valdez’s refusal to provide his passcode “were permissible as a fair response to an issue that Valdez initiated.”
“Finally, the State cannot avail itself of the Supreme Court’s ‘fair response’ precedent because, even if such precedent applies, the State elicited testimony about the text messages and Valdez’s refusal to provide his passcode before Valdez put on evidence about the contents of the text messages on his phone,” the ruling said. “Accordingly, Valdez did not use his prior silence as both a ‘sword’ and a ‘shield.'”