Password Protected

In the course of a criminal investigation, police secured a search warrant for the defendant's phone.

Defendant refused to provide the password, teeing up an issue for the Utah Supreme Court when the refusal was placed into evidence at the trial

Whether an accused has a Fifth Amendment right not to disclose a passcode to an electronic device when law enforcement has a valid warrant to search the device is a question of first impression for this court. The United States Supreme Court has not yet addressed this specific question, so we analyze existing Fifth Amendment precedent to determine how it should extend to this new factual context.

Holding

We agree with the court of appeals that verbally providing a cell phone passcode is a testimonial communication under the Fifth Amendment. And we also agree that the “foregone conclusion” exception does not apply. This exception arises in cases analyzing whether an “act of production” has testimonial value because it implicitly communicates information. But here, we have a verbal communication that would have explicitly communicated information from Valdez’s mind, so we find the exception inapplicable. Finally, we reject the State’s “fair response” argument because the State elicited the testimony about Valdez’s refusal to provide his passcode in its case in chief before Valdez had raised any issue involving the contents of his phone.

Accordingly, the State has not provided a basis for reversal. We affirm the court of appeals.

Conclusion

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. 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. Accordingly, Valdez did not use his prior silence as both a “sword” and a “shield.”

(Mike Frisch)