On February 11, 2021, the Court of Appeals of Utah decided State v. Valdez[i], in which the court had to determine whether asking a suspect to provide his password to his cellphone was considered “testimonial” within the meaning of Fifth Amendment.

In Valdez, the defendant, Alfonso Margo Valdez, was convicted of kidnapping, robbery, and aggravated assault, after his ex-girlfriend testified that he forced her into his car with a gun, threatened her, hit her with the gun, cut her face with a knife, and stole her purse and phone.  The police, when they arrested Valdez, seized his cellphone.  They obtained a search warrant for the phone, with the intent of looking for text messages that would provide evidence against him.  After the search warrant was obtained, a detective asked Valdez to tell him his password.  Valdez refused to disclose the password to the detective. Valdez’s refusal to provide the password was admitted at trial as evidence against him, and he was convicted.  Valdez appealed the State’s use of his refusal to provide the password to the detective.

One of the issues before the Court of Appeals of Utah in this case was whether Valdez’s refusal to disclose the password to his phone, so the search warrant could be executed, was protected under the Fifth Amendment, such that his refusal was not admissible at trial.  At trial, the State implied that Valdez had an obligation to provide the password to the detectives and that he had no right to refuse.

The court of appeals began their analysis of this issue by examining the various relevant legal principles.  The court first discussed the general principles related to the Fifth Amendment’s prohibition of compelled self-incrimination.  The court stated

The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself,” and creates a privilege that protects a defendant “against being incriminated by his own compelled testimonial communications,” Doe v. United States, 487 U.S. 201, 207, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988).  . . The amendment “reflects a judgment that the prosecution should not be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused.” Id. (quotation simplified); see also Estelle v. Smith, 451 U.S. 454, 462, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981) (noting that the government is typically required to gather evidence through “the independent labor of its officers, not by the simple, cruel expedient of forcing it from [a suspect’s] own lips” (quotation simplified)).[ii]

The court also noted that the Fifth Amendment does not prevent all disclosures to the government.  Rather, there are typically three factors that must be present to implicate the Fifth Amendment.  Those three factors are  

(1) the communication is compelled, (2) the communication is testimonial, and (3) the communication is incriminating.[iii]

The court then noted that the first and third factors above are met in Valdez’s case.  Regarding the first factor, the court stated

[I]t has “long been settled that [the Fifth Amendment’s self-incrimination] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.” United States v. Hubbell, 530 U.S. 27, 37, 120 S. Ct. 2037, 147 L. Ed. 2d 24 (2000); see also id. at 38 (stating that the Fifth Amendment protects “against the prosecutor’s use of incriminating information derived directly or indirectly from the compelled testimony” of the defendant).[iv]

The detective asked Valdez for his password and when he refused, told him that they would “attempt maneuvers” with the phone that could destroy it.  The State also implied to the jury, at trial, that Valdez had an obligation to provide his password to the detectives and had no right to refuse.  Thus, the first factor was met.

Regarding the third factor, the incriminating nature of the communication, the court stated that even though the password itself is not incriminating, the password can lead to the discovery of incriminating evidence, and is therefore properly categorized as incriminating for the purpose of the Fifth Amendment.  Specifically, the court stated

[E]ven though the State might not have planned to introduce the actual swipe code into evidence, and even though the code was not itself evidence of a crime, that code could have led to the “discovery of incriminating evidence” on Valdez‘s phone, and therefore is properly categorized as at least indirectly “incriminating” for Fifth Amendment purposes.[v]

Therefore, the only factor at issue in Valdez’s case was whether providing the password to the detectives would have been “testimonial.”  The court then discussed the relevant legal principles regarding whether providing a password is considered “testimonial.”  First, the court stated

The “touchstone” used to mark whether a communication “is testimonial is whether the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact.” See United States v. Doe (In re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335, 1345 (11th Cir. 2012)[vi]

Then, in contrast, the court discussed the fact that a person can be compelled to take non-verbal actions without the action being considered “testimonial”, such that the Fifth Amendment is not implicated.  Specifically, the court stated

On the other hand, citizens may be compelled to take various nonverbal actions without implicating the Fifth Amendment’s Self-Incrimination Clause. See In re Grand Jury Subpoena, 670 F.3d at 1345 (stating that “the Fifth Amendment privilege is not triggered where the Government merely compels some physical act, i.e. where the individual is not called upon to make use of the contents of his or her mind,” and where the State’s request amounts to something much more like a compelled hand-off of “the key to the lock of a strongbox containing documents“). For instance, “a suspect may be compelled to furnish a blood sample, to provide a handwriting exemplar or a voice exemplar, to stand in a lineup, and to wear particular clothing.” Doe, 487 U.S. at 210 (quotation simplified); see also Hubbell, 530 U.S. at 35. In instances like these, the government does not seek access to a suspect’s mind, and the suspect by undertaking the action is “not required to disclose any knowledge he might have, or to speak his guilt.” See Doe, 487 U.S. at 211 (quotation simplified). Thus, nonverbal actions are often considered nontestimonial.[vii]

Thus, a person can be compelled to take certain actions without implicating the Fifth Amendments protections as long as the person does not have to use or reveal “the contents of their mind.”  The court of appeals then provided an example and stated

[A]ccording to the United States Supreme Court, a statement—by word or deed—communicating a combination to a wall safe is testimonial, but the act of handing over a key to a strongbox is nontestimonial. See Davis, 220 A.3d at 547 (“[T]he Supreme Court has made, and continues to make, a distinction between physical production and testimonial production.”).[viii]

The court of appeals then took the example provided above and applied it to gaining entry into a cellphone based on a search warrant.  The court stated that, hypothetically, an officer could (1) ask the suspect to tell the officer the password, or (2) give the suspect the cellphone, ask him to mechanically unlock the phone, whether by password, fingerprint or facial recognition, and then turn the phone back over to the officer.  In the first scenario, the officer would have the ability to enter the password into the phone himself and to unlock the phone at a later time.  In the second scenario, the suspect is not asked to communicate the password to the officers.

The court of appeals then noted that the first scenario above is much like the example of compelling a suspect to communicate the combination of a wall safe, and is not similar to the physical act of merely handing over a key to a strongbox.  The court stated

[V]arious courts and commentators have recognized that, by asking a suspect to—orally or in writing—communicate the actual passcode to a cell phone, law enforcement officers seek a response that is testimonial in ways that simply turning over an unlocked phone is not, because such a request asks for the code itself. See, e.g., Davis, 220 A.3d at 548 (explaining that “the revealing of a computer password is a verbal communication, not merely a physical act that would be nontestimonial in nature,” and that “one cannot reveal a passcode without revealing the contents of one’s mind“); United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (noting that “forcing [a defendant] to reveal the password for the computer communicates that factual assertion to the government, and thus, is testimonial—it requires [a defendant] to communicate ‘knowledge,’ unlike the production of a handwriting sample or a voice exemplar” (quoting Doe, 487 U.S. at 217))[ix]

The court then applied the legal principles discussed above to the facts of Valdez’s case.  The evidence was such that the detective told Valdez he had a search warrant for his phone.  He testified that he asked Valdez for his password and Valdez refused.  The court interpreted this to mean that the detective asked Valdez to communicate the actual password to him, rather than simply asking Valdez to enter the password in the phone and then hand it back over to the detective.  The court stated that, by making a request for the actual password, he was requesting that Valdez make a verbal or written statement disclosing the password.  The court stated

[T]he government was asking Valdez to provide the equivalent of “the combination to [his] wall safe,” a request that asked Valdez to reveal to the government the “contents of his own mind.” See Doe, 487 U.S. at 210 n.9, 211 (quotation simplified). This “verbal statement,” whether it took oral or written form, would have “convey[ed] information or assert[ed] facts” to the State that it could have used to further its investigation and prosecution of Valdez. Id. at 213 (“The vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within the [Fifth Amendment’s] privilege.”); see also Davis, 220 A.3d at 548. Accordingly, the request the State made of Valdez asked for a response that would have been testimonial in nature.[x]

Thus, the court held that the request for the cellphone password did implicate the Self-Incrimination Clause of the Fifth Amendment.  As such, the court of appeals held that the States evidentiary use of Valdez’s refusal to provide the password violated his rights under the Fifth Amendment.  The court of appeals then reversed Valdez’s conviction and remanded the case back to the trial court.



[i] No. 20181015-CA (Utah App. Decided February 24, 2021)

[ii] Id. at 17 (emphasis added)

[iii] Id. at 18

[iv] Id. at 18-19 (emphasis added)

[v] Id. at 19 (emphasis added)

[vi] Id. at 20 (emphasis added)

[vii] Id. at 21 (emphasis added)

[viii] Id. at 24 (emphasis added)

[ix] Id. at 25 (emphasis added)

[x] Id. at 27-28 (emphasis added)

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