Victory: Utah Supreme Court Upholds Right to Refuse to Tell Cops Your Passcode

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Last week, the Utah Supreme Court ruled that prosecutors violated a defendant’s Fifth Amendment privilege against self incrimination when they presented testimony about his refusal to give police the passcode to his cell phone. In State v. Valdez, the court found that verbally telling police a passcode is “testimonial” under the Fifth Amendment, and that the so-called foregone conclusion exception does not apply to “ordinary testimony” like this. This closely tracks arguments in the amicus brief EFF and the ACLU filed in the case.

The Utah court’s opinion is the latest in a thicket of state supreme court opinions dealing with whether law enforcement agents can compel suspects to disclose or enter their passwords. Last month, EFF supported a petition asking the U.S. Supreme Court to review People v. Sneed, an Illinois Supreme Court opinion that reached a contrary conclusion. As we explained in that brief, courts around the country are struggling to apply Fifth Amendment case law to the context of compelled disclosure and entry of passcodes.

The Fifth Amendment privilege protects suspects from being forced to provide “testimonial” answers to incriminating lines of questioning. So it would seem straightforward that asking “what is your passcode?” should be off limits. Indeed, the Utah Supreme Court had no trouble finding that verbally disclosing a passcode was protected as a “traditionally testimonial communication.” Notably there has been dissent from even this straightforward rule by the New Jersey Supreme Court. However, many cases—like the Sneed case from Illinois—involve a less clear demand by law enforcement: “tell us your passcode or just enter it.

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