Man Sentenced To 180 Days In Jail For Refusing To Give Police His iPhone Passcode (miamiherald.com)

schwit1 quotes a report from Miami Herald: A Hollywood man must serve 180 days in jail for refusing to give up his iPhone password to police, a Broward judge ruled Tuesday -- the latest salvo in intensifying legal battles over law-enforcement access to smartphones. Christopher Wheeler, 41, was taken into custody in a Broward Circuit Court, insisting he had already provided the pass code to police investigating him for child abuse, although the number did not work. "I swear, under oath, I've given them the password," a distraught Wheeler, his hands handcuffed behind his back, told Circuit Judge Michael Rothschild, who earlier in May found the man guilty of contempt of court. As Wheeler was jailed Tuesday, the same issue was unfolding in Miami-Dade for a man accused of extorting a social-media celebrity over stolen sex videos. That man, Wesley Victor, and his girlfriend had been ordered by a judge to produce a passcode to phones suspected of containing text messages showing their collusion in an extortion plot. Victor claimed he didn't remember the number. He prevailed. On Tuesday, Miami-Dade Circuit Judge Charles Johnson ruled that there was no way to prove that Victor actually remembered his passcode, more than 10 months after his initial arrest. Johnson declined to hold the man in contempt of court. Wheeler will eventually be allowed to post bond pending an appeal. If he gives up a working pass code, he'll be allowed out of jail, Judge Rothschild told him.

Comments

Confusing

[Anonymous Coward]

The snippet above doesn't make clear that the article discussed two different cases. In one case, the guy got 180 days. In the other case, the court let the guy off because the police couldn't prove that he remembered the code 10 months later.

Re:Confusing

[sabri]

These judges should go back to law school and read about the 5th, and why it exists. It's not just about the right to remain silent. It is about the absolute right of a suspect in a criminal case to refrain from any actions which would help the prosecution to convict. A modern day criminal trial is already very uneven with the prosecutor having massive amounts of resources, where a suspect has very limited resources.

These "judges" are criminals themselves and should be thrown in jail for violating this man's human rights.

History will judge these fools the same way as the inquisitors who tortured heretics to extract a confession. This is basically the same. Putting an innocent man (until proven guilty) in jail because he refuses to cooperate with the inquisition. And of course they create a precedent like this with a case involving children, so the public backlash would be limited. Where are alt-right patriots when you need them?

Re: Confusing

[Sparowl]

The issue then becomes, what do you do when you actually do not remember the passcode?

How do I prove my innocence in "refusing" to provide the code?

The issue now becomes an unattainable burden of proof on the defendant, who is supposed to be innocent until proven guilty, no?

Re: Confusing

[shitzu]

As we know from the San Bernardino case, it is not an "unbreakable lock". The government just finds it cheaper to throw a man in jail than pay someone to open the iphone.

Re: Confusing

[hawguy]

So how do you account for the fact that, in the protections against unreasonable search and seizure enshrined in the 4th amendment, the authors of the Constitution had no concept of an unbreakable lock? The 4th provides a mechanism to balance privacy rights with the government's obligation to enforce law and prosecute based on evidence procured through a probable cause based search. At that time, it was understood that no lock or container, no matter how stout, could not be defeated to execute a warranted search. Today, though, encryption technology has created personal, unbreakable locks in virtually everyone's possession. Law enforcement still has the same obligation to search these devices if there is probably cause to believe they contain evidence of a crime, but they can't break the lock. A court order to provide the passcode is not a violation of the 5th, because providing a key to your unbreakable lock is not an admission or statement of guilt. It is merely providing the key to your unbreakable lock that the 4th amendment allows the government to search based on probable cause.

How is it any different than a defendant refusing to reveal where he hid the tools of his crime? The police suspect that he killed Colonel Mustard in the LIbrary with a lead pipe, but without the pipe, they are unable to prove it. The police could spend millions of dollars combing through many square miles of land looking for the weapon (just like they could spend millions of dollars trying to hack into the device), but can they compel the defendant to reveal exactly where he buried it, even if the defendant claims he forgot?

If the cell phone owner was separated from his phone for any length of time, I can believe that he forgot the code - when I lost my tablet for a month and I got it back again, I couldn't remember my passphrase and had to wipe it and reset it.

Re: Confusing

[j-turkey]

How is it any different than a defendant refusing to reveal where he hid the tools of his crime? The police suspect that he killed Colonel Mustard in the LIbrary with a lead pipe, but without the pipe, they are unable to prove it. The police could spend millions of dollars combing through many square miles of land looking for the weapon (just like they could spend millions of dollars trying to hack into the device), but can they compel the defendant to reveal exactly where he buried it, even if the defendant claims he forgot?

I'm not a lawyer, but in my opinion it isn't any different. My understanding of the fifth amendment is that for police absolutely cannot compel a suspect to reveal the location of a murder weapon (or incriminate themselves in any way). If investigators can demonstrate probable cause, they can obtain a search warrant to locate said weapon (and other things can be compelled, such as DNA or fingerprints). However, compelling a suspect (who is innocent until proven guilty) to reveal the location of a murder weapon would be a textbook case of self-incrimination, and a violation of the 5th Amendment to the Constitution.

Re:Confusing

[spire3661]

Its as simple as this. The court cannot make a judgement on the contents of your brain. If you say you forgot your passcode, by the 5th Amendment, the court is absolutely bound to accept that as the end of it. They dont have to believe you, it doesnt matter, the law forbids them from punishing you for it. The express intent of the 5th is to prevent the court from pretending to be mind readers and then acting on it.

Re: Confusing

[rickb928]

I've heard this discussed a multitude of ways, and one that worries me concerns the difference between discovery and production. And tampering/destroying evidence.

One theory is that refusing to give a passcode/password/key is the equivalent of refusing to produce, pursuant to a warrant or subpoena, but the 5th should still apply. The authorities can come get your phone, as they could come take a safe from your home or office, but are you required to open that container?

On the other hand, if you've forgotten how to open the safe, or phone, how do they prove you are in fact able? I've got a few passwords I know, but to tell you them I have to think through typing them. I could forget them, or more accurately be unable to remember them, under stress. Maybe.

And God forbid I have an accomplice that, for an iPhone, would enter iCloud and change credentials, perhaps making it really really hard for me to access my phone and data. What if they wiped my phone remotely, and could not be found? I'm in jail throughout all this, how could I be held to account if they could not prove a conspiracy?

The 5th Amendment is being wiped away. Not good.

Re: Confusing

[WhiplashII]

Let me simplify this for you:

NEVER TALK TO THE POLICE

Don't tell them it is your phone, don't say you know the password, etc. Ask for your lawyer.

Re: Confusing

[Anonymous Coward]

The difference between the two being that US Federal and State governments are supposed to be bound by Constitutional rights. That said, coercing someone to confess to a crime actually IS a violation of their human rights. You might work on bringing your government up to speed on that. We did, once, and apparently need to again.

Worst. Summary. Ever.

[Anonymous Coward]

This is two different stories.

Wesley Victor, as it says, is not in jail. Christopher Wheeler, in a completely separate and unrelated case, is.

This has been a public service announcement.

Well, jeez folks...

[Anonymous Coward]

...you people seem to think you have a right to be secure in your persons, houses, papers, and effects, against unreasonable searches and seizures or something!

Two cases in neighboring Florida counties

[Anubis IV]

The summary doesn't make it clear that these are two separate cases, both in Florida.

Christopher Wheeler is in Broward County and was sentenced to 180 days in jail for refusing to give police his password. He claims he already gave it to them, but the one he gave them doesn't work, hence the contempt of court ruling. Meanwhile, in an entirely separate case, Wesley Victor in neighboring Miami-Dade County claimed he didn't remember the password when he was ordered to provide it 10 months after his arrest, and the judge did not hold him in contempt.

From what I understand (as an Internet armchair lawyer, i.e. IANAL), both of these actually make sense. Wheeler, from the sounds of things, had indicated through his previous actions and testimony that it was his phone and that he knew the password, so supplying the password would not be considered testimonial in nature at that point, which is why passwords typically can't be compelled from people. As such, it makes sense to hold him in contempt of court if he refuses to hand over a password that they've already established he has. As for Victor, it had been 10 months since they had confiscated his phone, and he never claimed to remember the password at that point, so it makes sense (at least to me) that they wouldn't hold him in contempt of court.

What might be more interesting is Victor's girlfriend, who's in the same situation he is, but who provided the wrong password for her phone. If she's NOT held in contempt of court after doing so, it would be interesting to hear what the court's rationale is.

New way for the spooks to lock you up.

[Anonymous Coward]

They demand your password, and you hand it over, not wanting to go to jail for half a year. They open your phone, change the password to something random, and lock it. See you in prison.

Nice way to frame somebody!

[gweihir]

1. Ask for passcode
2. Unlock phone, find no incriminating evidence, change passcode and lock phone again
3. Claim wrong code was provided

Voila, guilty until proven innocent. Which the accused cannot do.

"I've given them the password"

[nine-times]

"I swear, under oath, I've given them the password," a distraught Wheeler, his hands handcuffed behind his back, told Circuit Judge Michael Rothschild

He had explained that his password was "fourwordsalluppercase"; one word, all lowercase.