Smartphone passwords

"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."

Erika Morphy, Utah Supreme Court says suspects can refuse to hand over phone passwords to the police. Techspot, 16 December 2023.

​Utah v. Valdez
23 Utah 26 (2023)

At trial, the prosecution introduced testimony that Valdez had refused to give his smartphone password to investigators, and the prosecutors forcefully argued that point in closing.

On certiorari, the question before us is whether the State's references at trial to Valdez's  refusal to provide his passcode constituted impermissible commentary on his decision to remain silent. Both the State and Valdez contend that the answer to this question turns on whether Valdez's refusal is protected by the Fifth Amendment's privilege against self-incrimination. The Fifth Amendment applies where a communication (here, providing a cell phone passcode) is compelled, testimonial, and incriminating. See Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 189 (2004).

The State does not challenge the court of appeals' determination that the communication at issue was compelled and incriminating. The State's only objection to the court of appeals' Fifth Amendment analysis is that providing a passcode is not a testimonial communication.
. . .
Whether an accused has a Fifth Amendment right not to disclose a passcode to an electronic device when law enforcement has a valid warrant to search the device is a question of first impression for this court. The United States Supreme Court has not yet addressed this specific question, so we analyze existing Fifth Amendment precedent to determine how it should extend to this new factual context.

The prevalence of passcodes that encrypt the information on electronic devices-which are
often seized by law enforcement while investigating criminal conduct-has raised important questions about how the Fifth Amendment extends to law enforcement's efforts to unlock these devices and decrypt the contents inside. These questions have proven to be especially complex where law enforcement attempts to access the contents of a seized device by means that do not require the suspect to disclose the actual passcode-like, for example, obtaining an
order to compel the suspect to provide anunlocked device.

Here, law enforcement asked Valdez to verbally provide his passcode. While these circumstances involve modern technology in a scenario that the Supreme Court has not yet addressed, we conclude that these facts present a more straightforward question that is answered by settled Fifth Amendment principles.

We agree with the court of appeals that verbally providing a cell phone passcode is a testimonial communication under the FifthAmendment. And we also agree that the "foregone conclusion" exception does not apply.

The opinion, as often happens, does not address military jurisprudence on this point. But it does seem likely that the issue will petitioned to the U.S. Supreme Court.