Whether disclosing a cellphone passcode with no substantive meaning is testimonial under the Fifth Amendment

QUESTIONS PRESENTED Police arrested Respondent Alfonso Valdez for kidnapping, robbery, and assault. They obtained a valid search warrant for his cellphone—which they seized from him when he was arrested—so they could access text messages he had used to arrange the meeting with his victim. But they were unable to execute the warrant because Valdez refused to disclose his phone’s passcode, which was a nine-dot swipe pattern. Alternative attempts to unlock the phone also failed. At trial, the State introduced evidence about Valdez’s refusal to disclose his passcode and invited the jury to draw adverse inferences from his refusal. The Utah Supreme Court held that this violated Valdez’s Fifth Amendment privilege against self-incrimination. The Fifth Amendment protects a person from being “compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. To receive Fifth Amendment protection, a communication must be testimonial and the “testimony” in the communication must add “to the sum total of the Government’s information.” Fisher v. United States, 425 U.S. 391, 411 (1976). That is, the testimony must be more than a foregone conclusion. Id. The questions presented are: 1. Is disclosing a cellphone passcode that has no substantive meaning testimonial under the Fifth Amendment when the only information communicated is the passcode? 2. Does the Fifth Amendment foregone-conclusion doctrine apply to the disclosure of a cellphone passcode when the government has evidence the phone belongs to the suspect?