Utah’s Top Court Says Government Can’t Portray Refusals To Unlock Phones As Incriminatory

There’s been plenty of courtroom discussion about Fifth Amendment rights surrounding compelled decryption in recent years. Encryption is on by default on most devices these days. Law enforcement seems to believe all it needs is a warrant to compel decryption. Courts aren’t so sure.

A lot of judicial discussion revolves around the “foregone conclusion” doctrine. Some courts think all that’s needed to compel decryption (without violating the Fifth Amendment) is to show the locked device is in the control of the criminal suspect. Other courts have ruled the “foregone conclusion” must definitively show both (1) possession and (2) the overwhelming possibility that the evidence sought can be found on the encrypted device.

Still others have decided the forgone conclusion doctrine doesn’t matter. The only thing that matters is whether or not a password/passcode is incriminating in and of itself. Compelling passcode production means forcing a person to give the government something it doesn’t already know. And the government doesn’t really care about the passcode. It only cares about what the passcode will allow it to obtain.

In this context, a passcode can be testimonial. Giving up a passcode means giving the government free rein to dig through a device for evidence to be used against you in court. Given that fact, some courts have ruled that compelling passcodes violates the Fifth Amendment.

This case is a little different. But, as Orin Kerr speculates in his blog post for the Volokh Conspiracy, it might mean the nation’s top court will need to confront an issue that has primarily been handled by a patchwork of state courts, with the occasional federal court ruling thrown in.

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.  As I wrote here at the Volokh Conspiracy back in 2020, the lower court caselaw is a total mess. 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 U.S. Supreme Court review to clear up the mess.

Here’s a possibility: The Utah Supreme Court’s ruling today in State v. Valdez.

So, why is this ruling a possibility? Well, to begin with, it’s been handed down by Utah’s top court, which means any appeal of this decision [PDF] must be handled by the US Supreme Court.

There’s good reason to believe it will be appealed. The facts of the case lend themselves to an appeal by Utah’s government, which represents all of its state and local law enforcement agencies. This ruling does not go their way. And, because it doesn’t — and the ripple effects won’t flow their way — there’s a really good chance the state will ask the US Supreme Court to review this.

The facts are these: Alfonso Valdez was arrested and charged for the kidnapping and assault of his ex-girlfriend. A warrant was obtained to search his phone but it was locked and encrypted. Investigators asked Valdez to unlock his phone (a nine “dot” passcode) but he refused. Investigators warned other methods might be used to brute force an entry and those efforts might destroy the contents of the phone. Valdez said (paraphrasing here): “Whatever. Go for it.”

The phone’s contents were never obtained by law enforcement. The state took the case to trial. During closing arguments, the prosecution emphasized to the jury that it could have had a better case against Valdez if it had been able to obtain access to the phone’s contents, speculating that text messages contained on the phone would have made it clear Valdez was guilty. The defense objected, pointing out the government was using Valdez’s Fifth Amendment rights against him during its closing arguments. The trial court overruled the objection and allowed the government to portray Valdez’s oblique invocation of his rights was evidence of his guilt.

The Utah Supreme Court isn’t going to allow this to stand. It notes that the state does not object to the appeals court’s determination that the passcode itself might be testimonial and subject to the Fifth Amendment. Instead, the state argued that the “forgone conclusion” doctrine says the Fifth Amendment doesn’t matter when it comes to (1) compelling decryption and/or (2) telling juries that invoking rights is a sign a guilt.

The state Supreme Court first notes the US Supreme Court has yet to provide clear guidance (or, indeed, any guidance at all) on this particular subject. But even if it hasn’t, the appeals court’s reversal of the trial court’s decision to pretend this right doesn’t exist (at least not in this context) was the right call, even with the lack of direction from the nation’s top court.

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.

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.

The Fifth is in play. After some more discussion of the forgone conclusion doctrine and various courts’ interpretation of it, the Utah Supreme Court draws its own bright line: given the facts of this case — including how the passcode was requested as well as how Valdez would have had to (physically) act to perform it — this was compelled production in violation of the Fifth Amendment.

Here, Valdez was asked to verbally communicate his passcode to police—a traditional testimonial statement. So while speaking a passcode and turning over an unlocked phone may be equivalent in many respects, they are not the same for Fifth Amendment purposes. Accordingly, we conclude that the act-of-production jurisprudence does not apply to the facts here. There is no need for us to determine whether any physical act of producing evidence has sufficient testimonial value, as we are dealing with traditional testimony, which would have directly conveyed information to the government.

The government needed certain information — which it could use to get to other information — to build a case against Valdez. Valdez refused to give them this information. His refusal was an invocation of his constitutional protections against self-incrimination. The passcode was testimonial.

That this was an invocation of rights — one recognized by both the state’s appeals court and supreme court — means the government attempted to violate Valdez’s rights. That it failed to do so cannot possibly be used as evidence (however implicit) of guilt when presenting arguments to the trial jury.

The State argues that the detective’s testimony does not implicate the Fifth Amendment because it was a “mere mention” of Valdez’s refusal to provide his passcode and not an attempt to use his silence against him. […] The State asserts that it did not use Valdez’s silence against him until its closing, which occurred after Valdez’s elicitation of his ex-wife’s testimony regarding the text messages. But we agree with the court of appeals that the import of the detective’s testimony was to suggest that Valdez should have provided his passcode and was obstructing law enforcement’s investigation by refusing to do so. (“The State implied at trial that Valdez had an obligation to provide the swipe code to the investigating officers,
and that he had no right to refuse.”).

In countering Valdez’s objection to the detective’s testimony, the State did not argue to the district court that it needed to admit the testimony as a response to an issue Valdez had raised. Rather, the State pointed out that the detective had a warrant to search the phone, and it argued that “[t]he jury ha[d] a right to know why the officers were unable to access the phone when there could have been evidence very pertinent to the case.”

On these facts, the State’s elicitation and use of Valdez’s refusal at trial do not constitute a permissible “fair response” to an argument initiated by Valdez.

All very good points. And there’s no reason for any court — not even the lowest level — to assume every effort was made to access the contents of the phone, even without the benefit of the defendant’s passcode. What’s shown here suggests the government simply abandoned any plan to access the contents of the phone when it could not compel decryption. But rather than treat its own failure to exhaust its (less constitutionally-violative) options as the failure it was, it chose to wield Valdez’s constitutional rights against him during its closing arguments.

This cannot stand, as one of the pop culture’s favorite constitutional scholars/bowlers has opined. And it doesn’t. The conviction is reversed. The state will have to prove its case again, but this time it won’t be able to (1) compel decryption or (2) claim that someone’s refusal to cooperate is something only a guilty person would do.

This obviously won’t work for the government and its prosecutors. And that’s why it’s a foregone conclusion this will be appealed to the US Supreme Court. So long as it’s not money out of your own pocket, what’s the harm in an expensive Hail Mary that drains Utah residents’ pocketbooks to fund the state’s arguments against limiting residents’ rights.