The Appellate Group

State v. Valdez

State v. Valdez, 2023 UT 26 (Petersen, J.) 


Police seized Valdez’s passcode-protected cellphone and obtained a warrant to search its contents. Valdez refused to unlock it. At trial, the State used Valdez’s refusal to unlock his phone as material to undermine his defense, and the jury convicted. But the Utah Court of Appeals reversed Valdez’s conviction on Fifth Amendment grounds. The State sought review. On certiorari, the Utah Supreme Court agreed, holding: 

  • The Court of Appeals correctly determined that verbally providing a cell phone passcode is a testimonial communication under the Fifth Amendment.
  • Practice tip: The foregone conclusion exception does not apply because the passcode itself, not the act of producing it, is the testimonial communication.
  • Practice tip: The parties did not contest the applicability of Griffin v. California, 380 U.S. 609 (1965). But Griffin may be limited to trial commentary on a defendant’s post-arrest, post-Miranda silence—not post-Miranda, pre-trial silence.

Read the full court opinion