ABA Journal
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A suspect had a Fifth Amendment right to refuse to give police his cellphone passcode, the Utah Supreme Court has ruled.
In a Dec. 14 opinion citing that right, the state supreme court reversed the conviction of Alfonso Valdez for kidnapping and assaulting his ex-girlfriend. Prosecutors had elicited testimony at trial about Valdez’s refusal to provide his passcode and told jurors in closing arguments that the refusal undermined one of his defenses.
The Utah Supreme Court said prosecutors violated Valdez’s Fifth Amendment right against self-incrimination when they referred to his refusal, and the error was not harmless.
Ars Technica and the Salt Lake Tribune have coverage, while the Legal Profession Blog has highlights from the opinion.
Valdez’s ex-girlfriend told police that she agreed to meet Valdez outside her workplace after he said in a text he had some of her mail and wanted to give it to her. When the ex-girlfriend walked up to Valdez’s SUV, he pointed a gun at her and told her to get in his vehicle, she said. After she complied, Valdez allegedly assaulted her.
The defense claimed that the interaction was consensual.
Police weren’t able to locate the ex-girlfriend’s cellphone after the incident, but they seized Valdez’s cellphone to verify that he had sent the text. Police obtained a warrant to acquire the cellphone contents.
The Fifth Amendment’s privilege against self-incrimination applies when a communication “is compelled, testimonial and incriminating,” the Utah Supreme Court said. On appeal, the state conceded that the password was compelled and incriminating but claimed that it was not testimonial in nature.
Providing a passcode, the state argued, is not a testimonial communication because it is like handing over a physical key, a nontestimonial act. The Utah Supreme Court disagreed.
Providing a cellphone passcode is testimonial and would explicitly communicate information from the suspect’s mind, making the revelation testimonial in nature, the state supreme court said."
This article was originally posted on the aba journal.
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