State v. Valdez

552 P.3d 159

2023 UT 26

STATE of Utah, Petitioner,

v.Alfonso VALDEZ, Respondent.

No. 20210175

Supreme Court of Utah.

Heard March 16, 2022

Reheard March 8, 2023

Filed December 14, 2023

On Certiorari to the Utah Court of Appeals, Second District, Ogden, The Honorable Joseph M. Bean, No. 171901990

Attorneys¹: Sean D. Reyes, Att’y Gen., Melissa A. Holyoak, Solic. Gen., Andrew F. Peterson, Thomas B. Brunker, Deputy Solics. Gen., Christopher A. Bates, Asst. Solic. Gen., Salt Lake City, John J. Nielsen, Salt Lake City, Michelle A. Jeffs, Rachel M. Snow, Ogden, for petitioner

Emily Adams, Freyja Johnson, Bountiful, for respondent

Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Pearce, Justice Hagen, and Judge Walton joined.

On Certiorari to the Utah Court of Appeals

Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 Police officers arrested Alfonso Valdez for kidnapping and assaulting his ex-girlfriend. He had a cell phone in his pocket, and the officers seized it from him. At some point thereafter, the officers obtained a search warrant for the contents of Valdez’s phone. But they were unable to access the phone’s contents because they could not crack his passcode. So a detective approached Valdez, informed him that he had a warrant for the contents of the cell phone, and asked Valdez to provide his passcode. Valdez refused. Without the passcode, the police were never able to unlock the phone to search its contents.

¶2 Later, at Valdez’s trial, the State elicited testimony from the detective about Valdez’s refusal to provide his passcode when asked. And during closing arguments, the State argued in rebuttal that Valdez’s refusal and the resulting lack of evidence from his cell phone undermined the veracity of one of his defenses. The jury convicted Valdez.

¶3 But on appeal, the court of appeals reversed the conviction. It agreed with Valdez that he had a right under the Fifth Amendment to the United States Constitution to refuse to provide his passcode, and that the State violated that right when it used his refusal against him at trial. The court found that the error was not harmless beyond a reasonable doubt, and it reversed Valdez’s conviction and remanded the case back to the district court for further proceedings.

[1] ¶4 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, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004).

¶5 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. The State contends this is so because the passcode itself "lacks ‘semantic content and is entirely functional,’ " and therefore "turning it over is akin to handing over a physical key—a non-testimonial act." (Quoting David W. Opderbeck, The Skeleton in the Hard Drive: Encryption and the Fifth Amendment, 70 Fla. L. Rev. 883, 916 (2018).) Because of this, the State also argues that an exception to the Fifth Amendment referred to as the "foregone conclusion" exception applies here. The State reasons that, even if providing a passcode could be considered testimonial, the only meaningful information it would have conveyed here was that Valdez knew the passcode to the phone. But because the police already knew the phone belonged to Valdez—and presumably that he would know the passcode to his own phone—this information would not convey anything new to law enforcement. The State argues that this triggers the foregone conclusion exception. Finally, the State argues in the alternative that during the trial, Valdez put the contents of his phone at issue, so the prosecutor’s comments were permissible as a fair response to an issue that Valdez initiated.

¶6 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 ques- lion 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.

¶7 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 an unlocked device.

¶8 But that is not the situation we have before us. Here, law enforcement asked Valdez to verbally provide his passcode. While these circumstances involve modem 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.

¶9 We agree with the court of appeals that verbally providing a cell phone passcode is a testimonial communication under the Fifth Amendment. And we also agree that the "foregone conclusion" exception does not apply. This exception arises in cases analyzing whether an "act of production" has testimonial value because it implicitly communicates information. But here, we have a verbal communication that would have explicitly communicated information from Valdez’s mind, so we find the exception inapplicable. Finally, we reject the State’s "fair response" argument because the State elicited the testimony about Valdez’s refusal to provide his passcode in its case in chief before Valdez had raised any issue involving the contents of his phone.

¶10 Accordingly, the State has not provided a basis for reversal. We affirm the court of appeals.

BACKGROUND²

[2] ¶11 Alfonso Valdez and Jane³ dated and lived together briefly. Valdez was often violent during the relationship. Ultimately, Jane and Valdez separated, and Jane moved out.

¶12 Two months later, Valdez texted Jane and asked her to meet him. In the text exchange, Valdez claimed that he had received some of Jane’s mail after she moved out and wanted to give it to her. Jane agreed to meet Valdez outside her work following one of her shifts, but she feared that Valdez might become violent.

¶13 At the agreed-upon time and place, Jane located Valdez in his SUV and approached the passenger side. But rather than presenting her with mail, Valdez pointed a handgun at her and told her to get into the vehicle. She complied, and Valdez drove away with Jane in the car. As he was driving, Valdez verbally and physically assaulted Jane. He also forced her to give him her cell phone and purse. Jane was eventually able to jump out of the car and run away. She called the police from a nearby residence, but Valdez was gone before the police arrived.

The Investigation

¶14 The police located Valdez at his home that evening. They arrested him and transported him to the police station for questioning.

¶15 There, a detective seized Valdez’s cell phone from him. He then read Valdez the Miranda warnings. And Valdez chose not to speak with the detective.

¶16 At some point that is not clear from the record, the police obtained a search war- rant for Valdez’s phone.⁴ But the phone was protected by a nine-dot pattern passcode, which the police did not know. They made numerous failed attempts to access the contents of the phone without the passcode.

¶17 Later, under circumstances that are not developed in the record, the detective approached Valdez and asked Valdez to provide the phone’s passcode. The detective explained that he had a search warrant for the phone, and that if Valdez did not give him the passcode, he would have to unlock the phone with a "chip-off" procedure that would destroy the phone in the process. Valdez refused to give the detective his passcode and told the detective to just "destroy the phone."

¶18 Law enforcement was unable to retrieve the contents of Valdez’s cell phone. As it turned out, even the chip-off procedure would not work. And during the criminal proceeding, the State did not move to compel Valdez to provide the passcode. Notably, the police were also unable to locate Jane’s cell phone following the incident. So they were never able to look for evidence in either phone of the text exchange that led to Jane meeting with Valdez.

Valdez’s Trial

¶19 Valdez’s case went to trial. During the State’s case in chief, the detective testified that although the police had a search warrant for Valdez’s phone, they "were unable to gain access to the data inside the phone." The State then asked the detective, "[A]re you familiar with why you were unable to access the data?" He answered, "Yes." The State continued: "Why is that?" When the detective began to respond about the need for a passcode, defense counsel promptly requested a bench conference.

¶20 Counsel argued to the district court that Valdez had "a Fifth Amendment right … to not provide [that] information." The State responded that "a warrant was obtained for the [passcode]," the detective "served the warrant on [Valdez]," and "[Valdez] refused to give the [passcode]." The State then argued that...