Do you need to give cops your cellphone password? Here’s what the Utah Supreme Court says.

The Utah attorney general’s office is ‘evaluating options for further review,’ hinting at a possible appeal to the nation’s highest court.

(Francisco Kjolseth | The Salt Lake Tribune) Utah Supreme Court Justice Paige Petersen asks a question during oral arguments at the Utah Supreme Court in Salt Lake City, Tuesday, Aug. 8, 2023. On Thursday, justices decided that individuals do not need to share their cellphone passcodes with police.

If police obtain a warrant to search your cellphone, are you required to tell law enforcement the password to access it?

The Utah Supreme Court ruled on Thursday that under the U.S. Constitution’s Fifth Amendment protection against self-incrimination, you don’t have to help law enforcement access your devices, even if they have a judge’s permission to do so.

Nearly two years after the court first heard arguments in the case, with attorneys rehashing those arguments in March after two new justices joined the bench, the court agreed with the Utah Court of Appeals’ 2021 decision to reverse a conviction in an aggravated assault, kidnapping and robbery case.

When Alfonso Valdez was arrested for allegedly kidnapping and assaulting his ex-girlfriend, police took his cell phone from his pocket, according to court records. Detectives got a warrant, but could not crack the swipe code to sift through the phone’s contents.

An officer asked Valdez to help unlock the phone, but he refused, keeping law enforcement from ever accessing it.

Prosecutors later relied on testimony from a detective about Valdez’s decision not to cooperate with police, and when giving closing arguments, argued that the resulting lack of evidence undermined his defense. A jury convicted Valdez, and he appealed.

The state’s two highest courts reasoned that Valdez agreeing to tell law enforcement his password could have amounted to self-incrimination, and he had a constitutional right not to do so.

“We agree with the court of appeals that verbally providing a cellphone passcode is a testimonial communication under the Fifth Amendment,” Justice Paige Petersen wrote in the decision. All justices on the court joined the opinion except former appeals court judge Justice Jill Pohlman, who recused herself and was replaced by District Court Judge John Walton.

During arguments in front of the Utah Supreme Court, attorneys for the state asserted that Valdez’s refusal to share his swipe code was not protected under the Fifth Amendment because they said it could be compared to providing officers with a key, and was not semantic in nature.

Building off of that contention, the state said a passcode wouldn’t have given police any meaningful information, except what they already knew — the phone belonged to Valdez.

But the court dismissed those points in its decision, with Petersen writing, “Here, we have a verbal communication that would have explicitly communicated information from Valdez’s mind.”

A spokesperson for the Utah Attorney General’s office said in an email, “The office is disappointed in the court’s ruling and is evaluating options for further review.”

Attorneys representing Valdez did not immediately respond to a request for comment.

While the Utah Supreme Court has the final say on matters related to the state constitution, this decision could be appealed to the U.S. Supreme Court because of its focus on a right enshrined in the federal constitution. The high court would then determine whether it wants to hear the case.

Matthew Tokson, a law professor at the University of Utah whose work focuses on privacy and judicial decision-making, said the ruling “helps to preserve Utahns’ privacy in their cellphones against government investigations. Whatever is in your cell phone, if it’s sufficiently protected by your passcode, is likely to be safe from inspection, and your refusal to open your cellphone for inspection can’t be held against you.”

Similar Fifth Amendment reasoning likely wouldn’t apply to other phone access technologies, like Face ID or Touch ID. Tokson said for that reason, he has personally opted not to sign into his devices with biometric identifiers.

He added, however, that such a precedent may make criminal investigations more difficult by preventing the government from accessing pertinent information, even with probable cause and a warrant.

In the future, case law surrounding the Fifth Amendment and law enforcement’s technology use, Tokson noted, could impact questions that may arise as artificial intelligence becomes more sophisticated — in reading emotions, for example — and widely used.