With each new development in communication and surveillance technology come new Fourth and Fifth Amendment questions. The latest comes from Utah, where a jury convicted Alfonso Valdez of kidnapping and assaulting his ex-girlfriend after the government argued that his refusal to unlock his cellphone was evidence of his guilt.[1] The question was: does a criminal defendant have a Fifth Amendment right not to disclose his phone’s passcode when law enforcement authorities have a warrant for the device?

A unanimous Utah Supreme Court answered, yes.

The case arose out of a messy and, at times, violent relationship between Valdez and his girlfriend “Jane.”[2] Two months after the pair broke up, Valdez texted Jane claiming to want to give her some of her mail that had been delivered to his home.[3] Jane agreed to meet, but when she showed up at the meeting place, Valdez pointed a gun at her and kidnapped her.[4] Jane managed to escape and call the police, who later arrested Valdez.[5]

At the police station, Valdez invoked his right to silence, and the police took his phone and obtained a warrant to search it.[6] They could not do so, however, because the phone was protected by a nine-dot passcode, which Valdez refused to provide.[7] The police failed to unlock Valdez’s phone and also failed to obtain Jane’s, so they never read the text exchange between the two that led to their meeting.[8]

At trial, Valdez called his ex-wife to his defense, who testified that Jane had shown her the text exchange.[9] That exchange, she said, showed that the meeting was consensual, “maybe kind of a makeup kind of thing.”[10] In response, the prosecutor argued that the ex-wife’s testimony was not credible because Valdez was hiding the text messages.[11] The jury agreed and convicted him.[12]

On appeal, Valdez argued that the state had violated his right against self-incrimination. In his view, a verbal statement revealing the passcode was an incriminating statement that could have been used against him, such that he had a constitutional right to refuse to provide it.[13] In response, the state made three arguments. First, that Valdez’s refusal was not a “testimonial” communication. Second, that even if it were testimonial, it would fall within the foregone conclusion exception to the right against self-incrimination. And third, that the prosecutor’s use of Valdez’s refusal was a fair response to Valdez making an issue of the phone’s contents.[14] At the intermediate court of appeals, Valdez prevailed.[15]

Relying on U.S. Supreme Court precedent, the Utah Supreme Court noted that to qualify for Fifth Amendment protection, a statement must be compelled, incriminating, and testimonial.[16] The government and Valdez agreed that the first two requirements were satisfied but disagreed about the third.[17] Whether a statement is testimonial depends on “whether the government compels the individual to use the contents of his own mind to explicitly or implicitly communicate some statement of fact.”[18]

This rule, the Utah Supreme Court observed, is only so helpful in this novel context.[19] This is so because there are two ways that law enforcement might go about compelling a person to unlock his phone. They might compel him to reveal the code, or they might compel him to unlock the phone.[20] The first asks for a verbal statement, the second a physical action. The line between these two things can be blurry. For example, in Fisher v. United States, the U.S. Supreme Court recognized that the physical action of responding to a subpoena duces tecum “concedes the existence of the papers demanded and their possession or control by the suspect [and] indicate[s] the suspect’s belief that the papers are those described in the subpoena.”[21]

To try to draw a clear line, Justice John Paul Stevens devised a thought experiment in his dissent in Doe v. United States, which the Utah Supreme Court used as its guide here.[22] If, Stevens argued, the compelled act is like handing over the key to a lockbox, then it is not testimonial. If, on the other hand, it is like revealing the combination to a wall safe, then it is testimonial.[23] The Utah Supreme Court held that demanding that Valdez reveal the passcode was like demanding that he reveal the combination of a wall safe because it “explicitly communicates information from the suspect’s own mind.”[24]

The government next argued that the “foregone conclusion” exception applied.[25] That exception, first recognized in Fisher, holds that if it is a foregone conclusion that the government will learn that documents sought by a subpoena duces tecum were in the possession of the suspect, the suspect’s silence about those documents does not implicate the Fifth Amendment.[26] The U.S. Supreme Court has never extended that rule beyond the act-of-production context, so the Utah Supreme Court was unwilling to do so.[27]

Finally, the government argued that because Valdez had put the contents of the phone at issue, it was a fair response for the government to comment on his silence about the passcode.[28] But in the court’s view, “[i]t was the State that first put the contents of the messages at issue” because in its case-in-chief, the state introduced testimony from Jane that Valdez had coordinated their meeting by text message and from a detective that law enforcement could not access those messages.[29]

For these reasons, the court sided with Valdez and reversed his conviction.

As Professor Orin Kerr pointed out at The Volokh Conspiracy, Valdez raises a novel Fifth Amendment issue that is ripe for Supreme Court review.[30] In favor of review, there is a split: Pennsylvania’s Supreme Court has reached the same conclusion as Utah’s, but New Jersey’s has come out the other way on the foregone conclusion question.[31] But against review, Valdez raises the issue of compelled disclosure but not compelled unlocking. As the Utah Supreme Court explained, both law enforcement tactics aim at the same end, but potentially have different Fifth Amendment implications. The U.S. Supreme Court might not want to take a case that, in Kerr’s words, “only address[es] half of the puzzle.”[32]

In any event, Valdez has raised another cutting-edge issue where technology and the Bill of Rights intersect that, in some way, will likely wend its way to the Supreme Court.

[1] State v. Valdez, 2023 UT 26, 2023 WL 8635197, at *1.

[2] Id. at *2.

[3] Id.

[4] Id.

[5] Id. at *3.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at *4.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at *7.

[15] Id.

[16] Id. (citing Doe v. United States, 487 U.S. 201, 207 (1988); Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humboldt Cnty., 542 U.S. 177, 189 (2004)).

[17] Id. at *7.

[18] Id. at *8 (quoting In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1345 (11th Cir. 2012)).

[19] Id. at *7.

[20] Id.

[21] Id. at *9 (quoting Fisher v. U.S., 425 U.S. 391, 410 (1975)) (cleaned up).

[22] Id. (citing Doe, 487 U.S. at 219–21 (Stevens, J., dissenting)).

[23] Id

[24] Id. at *10.

[25] Id. at *12.

[26] Id. at *12-13.

[27] Id. at *13.

[28] Id.

[29] Id. at *14.

[30] Orin S. Kerr, Is Compelled Decryption Heading to the Supreme Court?, The Volokh Conspiracy (Dec. 14, 2023, 1:34 PM), https://reason.com/volokh/2023/12/14/is-compelled-decryption-heading-to-the-supreme-court/.

[31] Id.

[32] Id.


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