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Utah Supreme Court says suspects can refuse to hand over phone passwords to the police

Why it matters: Utah’s Supreme Court has found that criminal suspects have the constitutional right not to provide their phone’s password to the police because it would violate their Fifth Amendment privilege. The ruling joins other opinions on the subject from state Supreme Courts, some of it conflicting. The Supreme Court has not considered this particular scenario to date and could well take up this case.

Utah’s state Supreme Court has upheld a court of appeals ruling, finding in the State v. Valdez that the Fifth Amendment right against self-incrimination allows criminal suspects to refuse to provide the passwords to their phones to police.

The state’s top court unanimously ruled in favor of Alfonso Valdez, who had been arrested for kidnapping and assaulting his ex-girlfriend. When he was arrested, the police found a cell phone in his pocket and obtained a search warrant for its contents. However they were unable to crack the password and Valdez refused to provide it when asked. The police were never able to search the phone.

At his trial, the state argued that Valdez’s refusal and the police’s inability to search the phone undermined one of his defenses. He was convicted in the jury trial, which was reversed by the court of appeals that agreed Valdez had a right under the Fifth Amendment to refuse to provide his passcode, and that the state violated that right when it used his refusal against him at trial. The court reversed Valdez’s conviction and remanded the case back to the district court for further proceedings.

The state Supreme Court also noted that the case raises important questions about how the Fifth Amendment extends to law enforcement efforts to unlock smartphones. The justices noted, as an example, law enforcement obtaining an order to compel a suspect to provide an unlocked device, thus circumventing the necessity of having them disclose the password.

With the Valdez case, the police asked him to verbally provide his password and did not get an order to compel him to unlock the device. The Supreme Court hasn’t addressed this particular scenario, the justices said, however “we conclude that these facts present a more straightforward question that is answered by settled Fifth Amendment principles.”

How the Fifth Amendment privilege against self-incrimination applies to unlocking phones has been a major issue in the law of digital evidence investigations, says Berkeley Law Professor Orin Kerr, who maintains that the lower court case law is a “total mess” and it is impossible to determine what the actual law is.

Kerr believes that the Valdez case is a good candidate to go to the US Supreme Court, particularly as other state Supreme Courts have split on how the Fifth Amendment privilege applies to orders to compel a password to execute a warrant for a phone, he writes. Valdez now joins the Pennsylvania Supreme Court in upholding the privilege in that setting, while the New Jersey Supreme Court has disagreed.

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