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Litigation News

Litigation News | 2024

Cell Phone Passcode Ruling Deepens Fifth Amendment Rift

Michael Judd


  • Asking for a passcode may implicate the Fifth Amendment’s privilege against self-incrimination.
  • One state supreme court made that conclusion, leading to speculation that the issue may need to be addressed by the U.S. Supreme Court.
  • Privacy and white-collar lawyers left eager for resolution of state-court split.
Cell Phone Passcode Ruling Deepens Fifth Amendment Rift
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The cell phones slipped inside our pockets and bags contain work emails, family photos, and, in some cases, evidence of criminal conduct. To get beyond those cell phones’ lock screens, police need help: a fingerprint, a glimpse of a face, a passcode. But if police attempt to obtain a passcode by asking the suspect for it, that request may implicate the Fifth Amendment’s privilege against self-incrimination.

In State of Utah v. Valdez, one state supreme court has reached that exact conclusion: The Fifth Amendment guards against a demand by law enforcement to verbally provide a cell phone passcode. Some court watchers believe that the issue of “compelled decryption” may soon head to the U.S. Supreme Court for resolution. In the meantime, practitioners continue to wrangle with questions about access to devices and the near-boundless worlds of information they hold.

Recognizing the Right Not to Disclose a Passcode

In 2017, Utah police arrested Alfonso Valdez, seized his cell phone, and obtained a search warrant for the contents of that phone, believing it may contain evidence that Valdez had kidnapped and assaulted an ex-girlfriend. Unable to crack Valdez’s “nine-dot pattern passcode,” police asked Valdez to provide it. Valdez said no.

Valdez’s case went to trial, and prosecutors argued that Valdez’s refusal—and their resulting inability to access Valdez’s phone—“undermined the veracity” of a key defense. When Valdez appealed his eventual conviction, he argued that he had the right to refuse to provide his passcode under the Fifth Amendment.

The Utah Court of Appeals reversed Valdez’s conviction, and the Utah Supreme Court affirmed. In doing so, the court invoked a framework drawn from a line of U.S. Supreme Court cases, including United States v. Hubbell, to pose whether verbally communicating your passcode to police more “like telling an inquisitor the combination to a wall safe” or “like being forced to surrender the key to a strongbox”? The Utah Supreme Court concluded that it is more like the former: police who order a suspect to speak their passcode aloud are asking for “information from the suspect’s mind.” The court concluded that “Valdez was asked to verbally communicate his passcode to police—a traditional testimonial statement” meriting Fifth Amendment protection.

Biometric Access and “Compelled Unlocking”

The court’s Valdez decision relates to “compelled disclosure” of a passcode. But the court hinted at what may be a simple work-around for law enforcement: Why can’t investigators simply “obtain[] an order to compel the suspect to provide an unlocked device”? In practice, that has already happened. “Law enforcement has quickly pivoted,” explains Ferdose al-Taie, Dallas, TX, cochair of the ABA Litigation Section’s White Collar & Criminal Litigation Committee. “Many search warrants already contain language that allows for refusal of testimonial communications.”

The Valdez decision also expressly avoids the question of biometric access, including fingerprint or facial identification. “Many people would instinctually believe that biometric access provides better protection for your data than a passcode. But from a legal perspective, when the issue is which of those methods is testimonial, that may not actually be the case,” al-Taie notes. In any event, questions of “compelled unlocking” and biometric access are similarly mired in state-court splits. Further complicating matters is the “foregone conclusion” exception to the Fifth Amendment privilege against self-incrimination, on which high courts in Utah and Massachusetts have now parted ways. As of today, the U.S. Supreme Court has not yet taken an opportunity to resolve those splits.

Privacy Disputes, White-Collar Investigations, and Beyond

“Many practitioners, prosecutors and defense counsel both, would welcome clarification on this issue,” al-Taie suggests. The implications of cases like Valdez, however, go well beyond the criminal-law context. “On the privacy-rights side,” al-Taie explains, “many companies provide cell phones, and employees store both company and personal information on the same device. How much access to an employee’s cell phone could a company lawfully give investigators? Many would love to have a workable standard to help answer that question.”

The sheer volume of information on cell phones means that compelled access issues will arise in myriad types of cases. “Cell phones contain so much information,” echoes Benjamin Reese, Columbus, OH, a member of the Litigation Section and its Young Lawyers Division. “Device issues appear in almost every white-collar case. And investigators often seek this information directly from the subject of the investigation.”

The fact that Valdez arises in a violent crime context does not make it any less applicable to white collar or government investigation cases, Reese explains. “Riley v. California started with a traffic stop and a weapons charge arrest, and Carpenter v. U.S. was a robbery case. But those cases reach device-access disputes in white collar cases every day.”

The State of Utah has asked the U.S. Supreme Court to use the Valdez case to provide clarity of device-access issues. “The Supreme Court could use the Valdez case as the vehicle to craft an analytical framework to address this issue,” explains Katayoun Donnelly, Denver, CO, cochair of the Pro Bono & Professional Opportunities Subcommittee of the Section’s Appellate Practice Committee. “Such a framework would have to account for the complexity and rapid advancement of encryption technologies while balancing defendants’ constitutional rights against the government’s public safety interests,” Donnelly suggests.