In Contrast to Illinois Supreme Court, Utah Rules that Police Cannot Compel Suspect to Turn Over Password to Cell Phone
In an update to our prior coverage of an Illinois State Supreme Court decision earlier this year, the Utah Supreme Court has reached the opposite conclusion and reversed the conviction for a Utah man convicted of kidnapping and assaulting his ex-girlfriend because prosecutors relied on his refusal to give the police his cell phone passcode in closing arguments, stating that said refusal undermined his defense. The Supreme Court said that this violated his Fifth Amendment right against self-incrimination because the communication at issue “is compelled, testimonial and incriminating” and that his refusal was covered under the privileges of the Fifth Amendment. Given the emerging difference in interpretation by various states and appellate courts, Orin S. Kerr, a professor at the University of California at Berkeley School of Law, cited the issue as “a good candidate for U.S. Supreme Court review” to address the emerging splits on the issue, with multiple courts reaching complete opposite conclusions. In the meantime, anyone being investigated or prosecuted and compelled to turn over their cell phone pass code or other password information should consult with an experienced criminal defense attorney and preserve the issue for appellate review in Illinois, federal courts, or other states in the event the United Staes Supreme Court ultimately weighs in on the issue, siding with the Utah Supreme Court and others, and reaches the opposite conclusion as the Illinois Supreme Court.