In State v. Valdez, the court found that verbally telling police a passcode is "testimonial" under the Fifth Amendment, and that the so-called foregone conclusion exception does not apply to "ordinary testimony" like this. This closely tracks arguments in the amicus brief EFF and the ACLU filed in the case.

The Utah court's opinion is the latest in a thicket of state supreme court opinions dealing with whether law enforcement agents can compel suspects to disclose or enter their passwords. Last month, EFF supported a petition asking the U.S. Supreme Court to review People v. Sneed, an Illinois Supreme Court opinion that reached a contrary conclusion. As we explained in that brief, courts around the country are struggling to apply Fifth Amendment case law to the context of compelled disclosure and entry of passcodes.