Defendant had a Fifth Amendment right to not give up the unlock code to his cell phone. Utah declines to apply the foregone conclusion exception to the Fifth Amendment to attempt to require a suspect to give up his cell phone unlock code. The state’s comment on it at trial as an inference of guilt was reversible error. State v. Valdez, 2021 UT App 13, 2021 UT App LEXIS 14 (Feb. 11, 2021):
[*P42] We find the more limited approach to be more consistent with governing, binding case law. No Utah appellate court has considered the reach of the foregone conclusion exception. And because the exception is a Fifth Amendment construct, the cases from the United States Supreme Court—the last word as to the meaning and scope of the federal constitution—are binding. That Court, as noted, has not mentioned the foregone conclusion exception in over two decades, when the Court referred to it simply as “this ‘foregone conclusion’ rationale,” and noted that “whatever [its] scope …, the facts of this case plainly fall outside of it.” See Hubbell, 530 U.S. at 44. The Court has never applied the exception outside of the context of assessing the testimoniality of a nonverbal act of producing documents. See id.; see also Fisher, 425 U.S. at 411-12. Yet the Court’s instruction regarding the testimoniality of verbal statements, as well as the strongbox key/safe combination illustration, appear to be as robust as ever. See, e.g., Davis, 220 A.3d at 547-49 (describing the strongbox key example from Doe, and concluding that “prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes” as opposed to acts of production “would be entirely consistent with the Supreme Court decisions, surveyed above, which uniformly protect information arrived at as a result of using one’s mind”).
[*P43] Moreover, given the vintage of the foregone conclusion cases, and the fact that the Supreme Court issued Fisher decades before cell phones were in widespread use, we have our doubts about whether the Supreme Court would extend the foregone conclusion concept to verbal statements that convey to the government the passcode to a modern cell phone. Such devices “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California, 573 U.S. 373, 393 (2014); see also United States v. Djibo, 151 F. Supp. 3d 297, 310 (E.D.N.Y. 2015) (noting that a modern smartphone can contain, in digital form, the “combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually, and sometimes even sexually, in the owner’s life”). And in a pair of recent cases, the Supreme Court has expressed hesitancy in applying analog-era legal rules to our fast-paced cell-phone-centric digital world. See, e.g., Carpenter v. United States, 138 S. Ct. 2206, 2222 (2018) (noting that when “confronting new concerns wrought by digital technology,” the Court “has been careful not to uncritically extend existing precedents,” and in that case refusing to extend the “third-party doctrine” to “cell-site location information”); Riley, 573 U.S. at 401-02 (refusing to extend the search-incident-to-arrest exception to the warrant requirement to cell phones found on arrestees); see also Eunjoo Seo v. State, 148 N.E.3d 952, 961-62 (Ind. 2020) (determining that the foregone conclusion exception did not apply to the facts of the case, in part because of doubt about whether the Supreme Court, in light of Carpenter and Riley, would extend the exception to apply to modern cell phones).
[*P44] Accordingly, we conclude that the foregone conclusion exception has no potential application here, where Valdez was asked to provide his swipe code to Second Detective, and was not merely asked to turn over an unlocked phone. Valdez’s verbal response—whether oral or written—to Second Detective’s request would have been testimonial in nature, in that it would have conveyed to the government information contained in Valdez’s mind, namely, the pattern of his swipe code. And as already stated, it is not contested here that the statement may have been at least indirectly incriminating, and that the State implied at trial that Valdez had an obligation to provide the swipe code. Thus, all three prerequisites for Fifth Amendment protection are present here: compulsion, testimoniality, and self-incrimination.
. . .
[*P48] In sum, Valdez had a Fifth Amendment right to refuse to provide the swipe code to investigating officers, and during trial the State invited the jury to draw an inference of guilt from Valdez’s silence. This action was no “mere mention” of Valdez’s decision to withhold the swipe code. See Saenz, 2016 UT App 69, ¶ 10 (quotation simplified). In this context, the State’s evidentiary use of Valdez’s refusal to provide the swipe code violated Valdez’s rights under the Fifth Amendment, and the trial court erred by allowing such evidence to come in and by allowing the State to use it in this manner.
