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SALT LAKE CITY — Police can seize phones and obtain search warrants to access a cellphone — but do they have a right to the passcode?
The Utah Supreme Court has ruled that not providing a passcode should not be held against a criminal defendant, or used against them at trial.
Alfonso Valdez, 58, was arrested for kidnapping and assaulting his ex-girlfriend, and he refused to give the passcode to officers who had a warrant for the phone's contents. Officers were never able to unlock the phone.
At his five-day trial in October 2018, prosecutors argued that his refusal to give the passcode — which restricted access to possible evidence on the phone — undermined one of his defenses.
Valdez was convicted at the trial, but the Utah Court of Appeals reversed the conviction, ruling he had a Fifth Amendment right to refuse to provide the passcode, which was violated when prosecutors used his refusal against him before the jury. The Utah Supreme Court affirmed that ruling last month, verifying that a refusal to give a phone passcode cannot be held against a person in a trial.
Supreme Court decision
This opinion in the case, written by Justice Paige Petersen, was filed after the case was argued twice before the high court.
Petersen said the Fifth Amendment applies when a communication including a cellphone passcode is "compelled, testimonial and incriminating." The opinion explains that prosecutors argued the passcode would not be a testimonial, and would only communicate to investigators that he knew the passcode to his phone. The prosecutors also argued Valdez brought up the contents of the phone at trial, making the prosecutor's comments about his refusal a fair response at trial.
The state's high court said although cellphone passcodes have not yet been addressed by the U.S. Supreme Court, this case is straightforward and answered through the Fifth Amendment. The opinion said there is testimonial value to the passcode because it provides information from a person's mind.
To address the second argument, the court said prosecutors asked witnesses about Valdez's refusal to provide the passcode before Valdez and his attorneys brought up the contents of the phone.
Case history
Alfonso Valdez was accused of kidnapping and assaulting his ex-girlfriend. The opinion said Valdez texted the woman and said he wanted to bring her mail, but when she approached his car at the arranged time, he pointed a handgun at her and told her to get in the car. The woman got in the car and Valdez verbally and physically assaulted her while he drove. The woman was able to jump out of the car and run to a nearby residence.
Valdez was located at his home that evening and was taken to the police station, where his cellphone was seized. An officer said if Valdez did not give his passcode, they would use a "chip-off" procedure to receive the contents that would destroy the phone, and Valdez told the officer to go ahead and destroy it.
The procedure did not work and officers did not correctly guess the phone password. Officers were also unable to locate the woman's phone to view text exchanges between the two.
The case has already had two jury trials, both in 2018. The first trial was declared a mistrial because of an impermissible testimony that Valdez had served time in prison.
What's next?
The Utah Supreme Court was not asked to consider whether the violation of Valdez's Fifth Amendment was not harmless, but the Utah Court of Appeals previously ruled it was "not harmless beyond a reasonable doubt," overturning the guilty verdict. The case will go back to the 2nd District Court and Valdez could be tried again for the charges.
Valdez was previously given three sentences of five years to life in prison for kidnapping, robbery and aggravated assault, all first-degree felonies. Second District Judge Joseph Bean ordered the aggravated assault sentence to run consecutively to the other two sentences.
On Thursday, the judge denied a request to release Valdez from prison pending his new trial. His attorneys argued he has been in prison for six years, despite his conviction being overturned in 2021 and again in 2023; and a new trial could take a year. But prosecutors responded saying Valdez is a danger to the community and should not be released.
