Compelled passcodes: state supreme court rulings, by state

In Utah, the Supreme Court said in its December 2023 opinion: “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 question of first impression for this court. The United States Supreme Court has not yet addressed this specific question”. Each decision below is a ruling of one state’s highest court, or of one federal circuit, in the case before it, and a ruling about one state is not a statement about another. The act a court was dealing with (saying a passcode aloud, entering it, producing an unlocked phone, disclosing passcodes, or a password to a computer) and the ground it decided on (the Fifth Amendment, a state constitution, or state common law and statute) differ from case to case, so both are given for each state.

For how the United States compares with the other countries on whether you must give police the passcode, see Must I give them the passcode?. For the federal appeals court decisions on compelled thumb unlocks, see the page on thumb unlocks.

In Utah, the court said that “law enforcement asked Valdez to verbally provide his passcode”. It held that “verbally providing a cell phone passcode to law enforcement is testimonial for Fifth Amendment purposes” and that “the foregone conclusion exception is inapplicable”. It affirmed the court of appeals: “We affirm the court of appeals and remand to the district court for further proceedings in accordance with this opinion.”

The court said that questions about how the Fifth Amendment extends to efforts to unlock seized devices “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”, and that “that is not the situation we have before us”. It also said that “while speaking a passcode and turning over an unlocked phone may be equivalent in many respects, they are not the same for Fifth Amendment purposes”. On the State’s elicitation and use of Valdez’s refusal at trial, the court said: “On these facts, the State’s elicitation and use of Valdez’s refusal at trial do not constitute a permissible ‘fair response’ to an argument initiated by Valdez.”

In a footnote the court said that “the State did not move in the district court to compel Valdez to provide his passcode (or an unlocked phone)”. It added: “Because the State has not disputed that the communication here was compelled and incriminating, we need not address those Fifth Amendment elements and we focus only on the testimonial nature of the communication at issue. We express no opinion as to whether the communication here was compelled and incriminating.”

In Utah, in Valdez, the Supreme Court of the United States docket for Utah v. Valdez, No. 23-1020, records: “Utah, Petitioner v. Alfonso Valdez—Jun 24 2024 Petition DENIED.” That is a docket entry.

In Indiana, the court recorded that “the detective got a second warrant that ordered Seo to unlock her iPhone. She refused, and the trial court held her in contempt.” It reversed the contempt order. It said that “Forcing Seo to unlock her iPhone would violate her Fifth Amendment right against self-incrimination”.

The court held: “The compelled production of an unlocked smartphone is testimonial and entitled to Fifth Amendment protection— unless the State demonstrates the foregone conclusion exception applies. Here, the State has failed to make that showing”. It said that giving law enforcement an unlocked smartphone “communicates to the State, at a minimum, that (1) the suspect knows the password; (2) the files on the device exist; and (3) the suspect possesses those files.” The quoted passages do not say what would have happened had the State made the showing the court describes.

In Pennsylvania, the device was a computer, not a phone. The court considered “Whether a defendant may be compelled to disclose a password to allow the Commonwealth access to the defendant’s lawfully-seized, but encrypted, computer” and held that “the compelled recollection of Appellant’s password is testimonial in nature, and, consequently, privileged under the Fifth Amendment to the United States Constitution.” About the foregone conclusion exception, it concluded that “the compulsion of a password to a computer cannot fit within this exception”.

In a footnote the court said that, because the case concerned a password to a computer, it “need not address the related, but distinct, area involving biometric features like fingerprints, thumbprints, iris scanning, and facial recognition”. In Pennsylvania, in Davis, the Supreme Court docket for Pennsylvania v. Davis, No. 19-1254, records: “Pennsylvania, Petitioner v. Joseph J. Davis—Oct 05 2020 Petition DENIED.”

In New Jersey, the question was “whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination”. The court’s answer: “We conclude that it does not and affirm the Appellate Division’s judgment.”

The court said that “Communicating or entering a passcode requires facts contained within the holder’s mind”, and: “It is a testimonial act of production.” It found that “the foregone conclusion test applies to the production of the passcodes themselves, rather than to the phones’ contents.” On the record, it said: “Based on the record before us, we have little difficulty concluding that compelled production of the passcodes falls within the foregone conclusion exception.” It affirmed “the Order of the Appellate Division compelling Andrews’s disclosure of the passcodes to his cellphones seized consistent with the trial court’s order of production, and remand[ed] to the trial court for further proceedings.”

The opinion ends by recording that a dissent was filed by Justice LaVecchia, in which Justices Albin and Timpone joined. The dissent is not quoted on this page and is not the court’s holding; the rest of the opinion is at the link under “Read the opinions”. In New Jersey, in Andrews, the Supreme Court docket for Andrews v. New Jersey, No. 20-937, records: “Robert Andrews, Petitioner v. New Jersey—May 17 2021 Petition DENIED.”

In Illinois, the court concluded that “compelling the act of producing the passcode to a cell phone by entering it into the phone is testimonial to the extent that performing the act of entering the passcode implicitly asserts that the person entering it has the ability to unlock the phone”, that “the foregone conclusion test is applicable in the context of the compelled production of cell phone passcodes”, and that “the foregone conclusion doctrine applies as an exception to the fifth amendment privilege in this case.” Because the State’s motion sought an order for the defendant “to either enter the passcode or provide it to officers”, the court said it “need not consider whether disclosing the passcode is sufficiently testimonial to be privileged where entering the passcode would not be.” It affirmed “the judgment of the appellate court, albeit on different grounds.”

The court stated that, for the exception to apply, “the State must establish that, at the time it sought the act of production, it knew with reasonable particularity that (1) the passcode existed, (2) the passcode was within defendant’s possession or control, and (3) the passcode was authentic.”

Elsewhere in the opinion the court noted that cell phones “may also be unlocked biometrically by using one’s fingerprint, facial recognition technology, or retina scans”, and then said: “Regardless of what method is used to unlock a cell phone, we find them all equally comparable to using a key to unlock a door, and we decline to distinguish between the methods for purposes of fifth amendment application.” The act in this case was entering a passcode: the court also concluded that “compelling defendant to enter the passcode to his cell phone is testimonial—not because it involves delving into the contents of defendant’s mind—but because entering the passcode implicitly asserts that defendant is able to unlock the phone”.

In Illinois, in Sneed, the Supreme Court docket for Sneed v. Illinois, No. 23-5827, records: “Keiron K. Sneed, Petitioner v. Illinois—Feb 26 2024 Petition DENIED.”

In Massachusetts, art. 12 is Article 12 of the Massachusetts Declaration of Rights. The court said that the central legal issue concerned “whether compelling the defendant to enter the password to the cell phone would violate his privilege against self-incrimination guaranteed by both the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.” The burden holding is stated under art. 12: the court concluded that “when the Commonwealth seeks an order pursuant to our decision in Gelfgatt (Gelfgatt order or motion) compelling a defendant to decrypt an electronic device by entering a password, art. 12 requires the Commonwealth to prove that the defendant knows the password beyond a reasonable doubt for the foregone conclusion exception to apply.” It also concluded that “the Commonwealth met its burden in this case.”

The court ordered: “We therefore reverse the judge’s denial of the Commonwealth’s renewed Gelfgatt motion, and we remand the case to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone at issue.”

In a footnote the court said: “We need not, and do not, resolve this distinction here, and our decision is therefore limited to only the physical entry of the password by the defendant, as we required in Gelfgatt. The defendant may therefore only be compelled to enter the password to the LG phone, not disclose it.” Earlier in the same footnote the court recorded “some debate among courts and commenters as to whether the foregone conclusion exception can apply in cases where the government seeks to compel the defendant to disclose -- whether orally or in writing -- the actual password, as opposed to cases requiring merely physically entering it into the device.”

In Massachusetts, in Jones, the Supreme Court docket for Jones v. Massachusetts, No. 19-6275, records: “Dennis Jones, Petitioner v. Massachusetts—Nov 18 2019 Petition DENIED.”

In Oregon, the court began with “the Oregon Constitution and, in particular, Article I, section 12” and said: “Because we conclude that the trial court’s order violated that state constitutional provision, we do not reach defendant’s Fifth Amendment argument.” It reversed the decision of the Court of Appeals and the judgment of the circuit court: “Although Article I, section 12, permits a trial court order compelling a defendant to unlock a cell phone in certain circumstances, those circumstances are not present in this case.” Faced with “the circumstances and law as they presently exist”, the court construed Article I, section 12, “to permit an order compelling a defendant to unlock a cell phone so long as the state (1) has a valid warrant authorizing it to seize and search the phone; (2) already knows the information that the act of unlocking the phone, by itself, would communicate; and (3) is prohibited from using defendant’s act against defendant, except to obtain access to the contents of the phone.” It also concluded that “to obtain an order requiring a defendant to unlock a cell phone, the state must prove, beyond a reasonable doubt, that it already knows the information that that act would communicate.”

In the Eleventh Circuit, in 2012, the court held that “Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial”. The devices were hard drives, not a phone. On the foregone conclusion point it said: “Nothing in the record before us reveals that the Government knows whether any files exist and are located on the hard drives”.

In the Third Circuit, in 2017, the court affirmed an order holding John Doe in civil contempt for refusing to comply with an order “which required him to produce several seized devices in a fully unencrypted state”. It said that “The District Court did not abuse its discretion in finding Doe to be in contempt of the Decryption Order.” On the Fifth Amendment point it said: “Even if we could assess the Fifth Amendment decision of the Magistrate Judge, our review would be limited to plain error.” It also said: “However, because our review is limited to plain error, and no plain error was committed by the District Court in finding that the Government established that the contents of the encrypted hard drives are known to it, we need not decide here that the inquiry can be limited to the question of whether Doe’s knowledge of the password itself is sufficient to support application of the foregone conclusion doctrine.” In the Third Circuit, in a later appeal in the same matter (2020), the court said that Rawls sought release arguing that 28 U.S.C. § 1826 limits his maximum permissible confinement for civil contempt, and: “Because we conclude § 1826 applies to Rawls, we will reverse the order of the District Court and order Rawls’ release.” The quoted text concerns release from civil-contempt confinement.

In the Ninth Circuit, in United States v. Payne, the Supreme Court docket (Payne v. United States, No. 24-5871) records: “Jeremy Travis Payne, Petitioner v. United States—Nov 25 2024 Petition DENIED.” That is a docket entry.

In the D.C. Circuit, Brown said that if Schwartz had instead been compelled “to verbally disclose the password, those answers unquestionably would be testimonial communications” — a statement about a situation that case did not involve. For the Ninth and D.C. Circuit thumb-unlock decisions, see the page on thumb unlocks.

In New Jersey, the court said that “courts in other jurisdictions have grappled with the applicability of the exception beyond that context, and many have considered whether the exception applies to compelled decryption or to the compelled production of passcodes and passwords, reaching divergent results.” This page asserts nothing further about how the courts relate to one another.

CBP’s own directive states that “Travelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents.” That is an agency directive, CBP’s own policy, not a ruling of any of the courts above. See CBP and your phone at the U.S. border.

Each ruling is worth reading in full rather than taking a summary’s word for it.

• Utah: State v. Valdez (copy)
• Indiana: Seo v. State (CourtListener copy of the court’s opinion)
• Pennsylvania: Commonwealth v. Davis (copy)
• New Jersey: State v. Andrews (copy)
• Illinois: People v. Sneed (copy)
• Massachusetts: Commonwealth v. Jones (an archived copy of the court’s PDF)
• Oregon: State v. Pittman (copy)
• Eleventh Circuit: In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011
• Third Circuit: United States v. Apple MacPro Computer