The Volokh Conspiracy
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Is Compelled Decryption Heading to the Supreme Court?
Unlocking phones may reach SCOTUS, but there's a potential catch.
One of the major issues in the law of digital evidence investigations is how the Fifth Amendment privilege against self-incrimination applies to unlocking phones. As I wrote here at the Volokh Conspiracy back in 2020, the lower court caselaw is a total mess. No one can say what the law is. And I've been waiting for a case to come down that might be a good candidate for U.S. Supreme Court review to clear up the mess.
Here's a possibility: The Utah Supreme Court's ruling today in State v. Valdez. In this post, I want to talk about Valdez and consider if it would be a good prospect for Supreme Court review.
The Facts
Valdez was charged with kidnapping and assault of his ex-girlfriend. The government had a warrant to search his phone, as a lot of the evidence was thought to be of their communications. And his ex-girlfriend's phone, which would also have the communications, had gone missing. But Valdez's phone was locked, with a nine-dot pattern passcode needed to access it, and the police could not break in. The government asked Valdez for his password, telling him that if he declined they might damage the phone to try another way to bypass the encryption. But he refused to provide the passcode, and he told them to just destroy the phone. The government was never able to get into the phone.
At trial, the government wanted to put on testimony that Valdez refused to unlock the phone as evidence of his guilt. The defense objected, arguing that Valdez had asserted his Fifth Amendment privilege. The trial court overruled the objection, allowing the testimony. During the closing argument, the prosecution emphasized that the text messages between the defendant and his ex-girlfriend stored on his phone would answer whether this was a real kidnapping (as the prosecution claimed) or consensual (as the defense asserted). And in that context, the prosecution argued, the refusal to unlock the phone was incriminating. The jury convicted the defendant.
The Valdez Ruling
The parties in the case both assume, as the court of appeals ruled below, that the government cannot comment on a defendant's assertion of his Fifth Amendment privilege under Griffin v. California, 380 U.S. 609 (1965). Griffin ruled that the government can't comment on the defendant's refusal to testify at trial, and it's not obvious it extends to a pre-trial assertion. But the Utah Supreme Court accepts that framing, assuming for the purposes of argument that the key question is whether Valdez had a Fifth Amendment privilege not to provide his passcode. And the court concludes that the answer is yes. As it summarizes:
We first address the State's argument that providing a passcode is not a testimonial communication. We disagree. Providing a passcode is testimonial because it is a communication that discloses information from the person's mind. We then move to the State's other arguments. We conclude that the foregone conclusion exception does not apply here. That exception arises in cases involving compelled acts of producing evidence to determine whether the act has any testimonial value because the act implicitly conveys information. Such an analysis is not necessary in a case involving a verbal statement that explicitly provides information.
The Utah Supreme Court thus agrees with the court of appeals that the conviction cannot stand, as it was based on a Fifth Amendment violation and it was not harmless error.
Why This Might Be Cert-Worthy
Will the U.S. Supreme Court review Valdez, assuming the state seeks review? Maybe.
Here's the case in favor.
First, there's a state Supreme Court split on how the Fifth Amendment privilege applies to orders to compel a password in order to execute a warrant for a phone. Unless I'm missing something, Valdez joins the Pennsylvania Supreme Court's ruling in Commonwealth v. Davis in upholding the privilege in that setting. On the other hand, the New Jersey Supreme Court disagreed with that view in State v. Andrews, ruling that the foregone conclusion doctrine applies and the defendant can be forced to disclose the password if the government can show he knows it. So at the very least, there is a 2-1 split on compelled disclosure of passwords.
Second, Valdez would come to the Supreme Court in a better procedural posture than other cases. Most compelled unlocking cases involve interlocutory appeals. The government gets an order requiring the defendant to say the password or unlock the phone, and the government seeks enforcement of the order. Whether the order can be enforced then goes up on appeal while the rest of the case is still pending. That can create procedural barriers, most significantly if the state wins in the state supreme court; the U.S. Supreme Court probably lacks jurisdiction to review the ruling under the final judgement rule. Here, by contrast, there's a final judgment.
Some Potential Complications
But there are some complications.
First, Valdez is a compelled disclosure case, not a compelled unlocking case. There are state supreme court splits on both compelled disclosure and compelled unlocking. But the issues are potentially very different, as the Valdez court explored in depth. In a case that involves an interlocutory appeal, the two issues are often either presented together or at least are easy to address together. The government has an order, and it just wants "in" to the phone so it can execute the warrant. Typically, prosecutors are happy if the defendant either unlocks the phone or gives the government the password to unlock it. Either is fine.
It's different with Valdez. The record in Valdez is that he was asked to provide the passcode, not to enter it. And the issue is whether the government could have testimony on that. If the Supreme Court were to take Valdez, it might have to only answer the compelled disclosure issue, and then save the compelled unlocking issue for another day.
That's certainly possible. But it might be odd to only address half of the puzzle. Compelled unlocking and compelled disclosure raise different legal issues, but they go together in practice. Would the Supreme Court want to take on one half of the puzzle without being able to take on the other half? I don't know.
A second question is whether the somewhat uncertain assumptions framing Valdez might deter the Justices. As Footnote 6 of Valdez points out, the parties are assuming that Griffin applies to commenting on pre-trial evidence. And there are also interesting Salinas v. Texas issues lurking: Assuming that the refusal to unlock the phone counts as an assertion of the privilege, what follows from that is an issue not explored by Salinas. But maybe the U.S. Supreme Court would just put that set of issues aside, taking Valdez for the specific issue on which the parties have agreed the case rests.
As always, stay tuned.
