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Judge Jails Defendent For Failing To Unlock Phones (fox13news.com)
devoid42 writes: In a Tampa courtroom, Judge Gregory Holder held William Montanez in contempt of court for failure to unlock a mobile device. What led to this was a frightening slippery slope that threatens our Fourth Amendment rights to the core. Montanez was stopped for failing to yield properly. After being pulled over, the officer asked to search his car; Montanez refused, so the officer held him until a drug dog was brought in to give the officer enough probable cause to search the vehicle. They found a misdemeanor amount of marijuana, which they used to arrest Montenez, but they asked to search his two cellphones, which he also refused. They were able to secure a warrant for those as well, but Montenez claimed he had forgotten his password. The result: Montanez is being held in contempt of court and is serving a six-month jail sentence.
Outrageous overreach based on the circumstances. It's not like this guywas a threat to national security. Sounds like butthurt cops not getting their way backed by a judge.
Wouldn't this be akin to a warrant for searching your house?
You can't really say "I lost my house keys"
Good on him for standing up for his rights, but from a practical point of view, I wouldn't want that record hanging over me for the rest of my life (or until it expired). So I don't think I would have the guts.
Of course, he could have had something worse to hide....
Si hoc legere scis nimium eruditionis habes.
IANAL obviously but I thought it was pretty well established that even with a warrant, you do not have to turn over passwords because it violates the 5th Amendment
https://www.eff.org/issues/know-your-rights#17
âYou have the right to remain silent.â
What was it again.... "Land of the free" ?
To all the petulant little kids who yak about technology. Your computers are nothing against an old man with a pen, who can erase your existence with a signature on a piece of paper. Encryption is useless against the power of the Law. Do not challenge authority or you will pay the price.
MJ is legal where I live.
Obviously Judge Holder wanted to show he held the power in that situation, so he held the defendant in contempt, leading to him being held in a cell for six months and beholding being beheld to the law despite holding onto his passwords, leading to a holding pattern to see if the appeals hold up, holding America in a state of held breath until the man's constitutional rights are upheld.
Corruption is convincing someone that the selfless ideal is the same as their selfish ideal.
He didn't yield "properly" and didn't forfeit his rights, so a search dog was called?
In other words, they were looking hard for some kind of shit to nail to his ass.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Tech companies waging open warfare against the ability of law enforcement to perform basic duties is just *daring* the government to take steps to try and force them to put the same backdoors and such into their phones that you'd expect from countries with ACTUAL oppressive police. Here the corporatocracy is actively trying to assert its dominance over the real, elected government of the United States, and there's no good outcome when that happens.
Though the ability will always exist in one form or another, essentially no one needs end-to-end encryption on their day to day communications - people got by just fine back in the day without using ciphers to write all their letters or emails. Apple managed to turn the minor hassle of having to respond to law enforcement unlock requests into a full-blown marketing campaign based on unfounded and manufactured fears of the feds digging through your phone and throwing you into Gitmo because you complained about Trump too much or something.
But you have thousands of cannibus startups worth hundreds of millions of dollars spinning up every year.
But yea lets lock up this âmistemenor amountâ(TM) of marajuana latin american guy bc, ehemm you know hes ummm breaking the law and whatnot.
What a crock
Sue everybody.
, so the officer held him until a drug dog was brought in to give the officer enough probable cause to search the vehicle.
In any civilized country (meaning one that adheres to the universal declaration of human rights) it is the other way around: only when you suspect someone of carrying drugs, you are allowed to call for the drug dog. This is a witch hunt.
Nae king! Nae laird! Nae yurrupiean pressedent! We willna be fooled again!
A lot of people seem to be under this misguided impression that "I forgot" is some sort of automatic exit from the situation that lets them off the hook. Contrary to what a lot of people seem to believe, courts can and do evaluate whether a given statement is a "believable" one.
An old one, but this dude is involved with crazy. plagirised papers, tapped cell phones, he has a vendetta and is scared of something https://www.cltampa.com/home/article/20715182/payback-for-holder
The affidavit says agents believed "Judge Holder's cell phone had been tapped and his phone conversations with our agents were being monitored. At that point, we asked Judge Holder to change his personal cell phone number and begin carrying one of our own FBI cell phones. It became obvious that those persons that we were investigating had knowledge of Judge Holder's participation and cooperation.''
He was probably one of those Mexicans that our president warned us about. When his sentence is over chuck him over the wall.
They have to fulfill quotas, like the cops, to get kickbacks form Darth Cheney's for-profit concentration cam... err, I mean prisons.
Everything else would take away their "freedom", as a market, (to take away your freedom)!
https://www.dailydot.com/layer...
"We receive as friendly that which agrees with, we resist with dislike that which opposes us" - Faraday
Nothing more. The presumption of looking guilty is on you if you say an obvious lie, but if you hold your ground, the presumption is, you aren't going to take it! Never did and never will! Not sure if that was The Who or Twisted Sister. Dee? You still alive?
It always takes two. A giant dick who acts like that cop,
and an asshole who thinks like you, when being raped by said dick.
When I was young, bullies served a purpose at schools: To teach kids the advantages of not offering their figurative asshole for everyone to fuck, but standing up and getting some respect.
Suddenly, former bullies turned into allies that respected and even served and protected you.
"No person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property..."
'Should you choose to exercise this right, you will be held in contempt of court, and deprived of liberty.'
-De facto amendment to the Fifth Amendment.
Here in Cologne, where the cops are also the ones selling the drugs. (Like they "used to" in the Netherlands, right next door.)
In front of, again literally, a thousand people. (Huge university party.)
I had more witnesses than that cop had brain cells. Much more!
Yet he got away. And guess why?
Because he did not have to say anything that would incriminate himself.
Yeah, nothing fucking changed since the Nazis! Same pieces of shit dominating culture.
Weren't there a few cases recently where judges ruled that you can't be forced to give up your passwords under the 5th amendment rule against forced self incrimination?
Or does the precedent in those cases not apply in this particular situation?
It's time for phone manufacturers to implement a duress code that will unlock the device and present some fake data. Just like VeraCrypt.
What a surprise.
This is all good and nice. What we really need to know is if he was heavier than a duck. If he floats, he is guilty, if not, he is innocent.
That is what a REAL judge would ask. I assume the outcome would still be the same.
Don't fight for your country, if your country does not fight for you.
I wonder if he was Mirandized properly? I somehow doubt it.
He should have an appeal option, but I agree with the cynical view (put forward by others here) that US Constitutional Rights are only upheld in this country when proffered by expensive attorneys. If you declare them for yourself, its merely more Probable Cause. That's why we need to fight harder for them now, before they are gone in theory as well as practice.
The idea that our country cares about freedom, liberty, and justice for all is just completely ridiculous!
...was what you US Americans used to have. Now all you've got left is the Bill. Also, didn't you use to have something named a Constitution. I seem to remember it wasn't perfect, but it was a lot better than whatever you've got now.
Religous speak to God. Insane are spoken to by God. When all shut up, one can finally hear Shostakovich in peace
Not sure why people think a warrant to search a phone is any different then one to search your house. If you refuse a warrant to search your house you are in contempt and it will be forcibly searched. To perpetuate that somehow personal data has extra rights to privacy or exclusions is going to trigger more not less pressure by governments to gain access. Many governments around the world have way less tolerance of refusal of searches then the US. Eventually I see several governments in the world passing laws banning smartphones without some sort of court ordered access available.
sounds like a job for the ACLU, why haven't they jumped in? What are they spending my donations on instead?
I remember the last time I went to renew my license to drive and I was asked for my signature. Before I signed I actually stopped to read what I was signing. I don't remember the actually wording but it was a release for searching me for drugs and alcohol at any time I am stopped by police. I don't recall the penalty but I believe it was simply a revocation of my license.
I remember having to provide a signature in the past but that was only so the police had a signature on the license to compare to what was given at the time of signing a citation.
So, what happens if I refuse a search at the time the police stop me? On one hand they could show a court I signed a release allowing a search. On the other there's precedent for people revoking permission at any time.
Let's say I am stopped, I refuse a search, and now the police charge me for driving without a license because my refusal invalidated my license to drive. Does driving without a license allow for a search of my vehicle?
This came up again when I came to a random checkpoint on the interstate. I was asked by a police officer for my license and insurance, and I initially refused. The officer just repeated the demand by shouting at me. I rolled my eyes and gave in. While the officer was looking at the papers I saw a dog being lead around my truck by another officer. The officer never called anyone to verify my documents were legitimate.
When I got home I went to look up the law on these checkpoints. First thing was that by law the state patrol was required to publish where and when these checkpoints would occur in advance. I don't know if they did so but a small print notation in the back of a local newspaper would probably meet that standard. Then I saw that they were limited in what they can look for in these stops. They are health and safety, license and insurance, and captured game. Health and safety means that they can check that the brakes, lights, and indicators work, that people are wearing their seat belts, children are in proper child seats, no obstructions of view, that kind of thing. Checking for license and insurance is pretty self explanatory. Checking on captured game means that every dead critter in my vehicle must have a proper game tag, and that my hunting license is current. The dog might have been sniffing for pheasants in my truck but let's just say I doubted it. Without calling in for revoked license to drive, and that I had paid my insurance bill, they made no real attempt to verify my papers and therefore checked nothing of what they were allowed to check by law.
Oh, another thing, while I was waiting to get free to move on my way I looked around to get an idea on how big of an operation this was. The cars were packed wide and deep at this abandoned truck stop or whatever it was. There were deputies from at least three counties there, and multiple K9 units from the state patrol.
Seems to me that the police are taking their business of violating our rights very seriously.
I am armed because I am free. I am free because I am armed.
Anyone who would voluntarily choose to live in Florida is asking for unpleasant experiences.
And the events described in the article are a good example of such experiences.
Hopefully this case will be appealed and struck down on a constitutional basis, relative to the 5th amendment as others have suggested, but doing so takes time and most likely the person whose rights are being tramped by the ASSHOLE judge is going to serve the bulk of the jail sentence. Welcome to the real world : the so-called justice system is not about justice, it is about exerting power. I have been screwed by the system myself but most people who have not been screwed persist in believing that the justice system is "fair" or "reasonable". It is not.
Wouldn't this be akin to a warrant for searching your house?
Not really, no. And they can search your house without your cooperation. Under current law they cannot force you to divulge knowledge that could lead to you being incriminated. This currently includes passwords. The line in the sand they have drawn currently is that they can force you to provide biometrics but they cannot force you to reveal a password. In other words they can make you produce something you have or something you are but not something you know. Not sure I agree with that but at least its a clear procedure.
You can't really say "I lost my house keys"
Sure you can. It's even better if its actually true though in either case you might have some time sitting behind bars if they think you are being obstructive. But they don't need your keys to search your house and as long as you don't guard the door with your person or otherwise actively interfere with the investigation then they can do what they need to do. If the police can break into your phone then that is probably permitted by law if they have a warrant. But you should be under no legal obligation to provide them assistance in obtaining information that might be used against you.
What if the cops find a safe in your house that they cannot open without destroying the contents. Could you be compelled to open it, or be held in contempt for failure to do so (in the USA)?
IANAL but my understanding is that they cannot force you to reveal information you reasonably believe might be used to incriminate you and that cannot be obtained in another way. This would include passwords or safe combinations. They can force you to provide biometric identifiers or produce physical objects like keys though. This falls under the 5th amendment to the Constitution against self incrimination. However they can confiscate the safe and if they have the ability to crack the safe without your assistance they can do so provided they have an appropriate warrant.
Here in the Netherlands, IIRC one cannot be compelled to assist in opening a locked safe except in cases where the search warrant is for a matter regarding taxes
That's a gigantic loophole right there which would be abused in a nanosecond if it were an option here. My guess is that it is abused in the Netherlands too but that's conjecture on my part.
However there are proposals to change the law to the effect that a suspect must assist in opening locked safes, unlocking locked phones, or decrypting files, in special cases like terrorism or (of course) child pornography.
So two problems with that. 1) How do you tell the difference between someone who has forgotten the password and someone pretending to forget? Kind of unfair to send someone to jail for being forgetful. 2) Do you seriously think that law enforcement won't simply use those exceptions to bypass any legal protections the accused might have?
Establish history and trade in a phone or two with password forgot to your carrier or established trader like Apple that keep records. Often can get a token trade in value like $10 and they recycle parts claim environmental social responsibility which the companies are entitled they do it.
Stoners could leverage their other charge by pointing out impairs memory.
Montenez claimed he had forgotten his password.
Right here is where he failed. He should have told the judge he was invoking his fifth amendment right rather than claim he "forgot" the password.
That sounds very traumatic. I bet you were sweating bullets that the dogs would find that un-tagged deer you had in the cooler in the trunk, but you lucked out because they were just drug dogs!
If there's not already Precedence, then the normal process is for the lower court to convict based on current law or practice. Then you can appeal to a higher court.
The abuse of power settlements should come of the union/pension fund of the judges/cops involved. That's the only way to get them to stop turning a blind eye to their associates malfeasance.
I myself am staunchly anti-drug. My country is, of course, in the news as legalizing recreational marijuana, something that I have personally opposed. But it gives me pause when I hear stories like this. Whatever my personal thoughts on marijuana are, legalizing it simply to remove this kind of specious misuse of probable cause may not be a bad thing.
Of course, the US is quite famous for being the sort of place that will jail your ass for a parking ticket, especially if you're a foreign driver. Hell, people get jailed in the US just for driving with a foreign license. We typically don't live in fear here that police are going to grab a drug dog to sniff out your car if you refuse a search. But regardless, it is certainly something to think about, and makes me rethink some of my attitudes.
Be 20 steps ahead, everyone. We have no rights anymore if law enforcement wants to push the envelope on anything, exacerbate any ticket-and-on-your-way situation into something else by profiling, all the while with 100% plausible deniability and/or probable cause on their side.
I just got pulled over last week for being a dope and not putting my new registrations tags on by the end of the month, no one asked to check my phone, thankfully...
What the hell? Mans said he forgot his password, why jail him? How come a man who ends up killing people then submits himself to the police gets only a slap on the wrist after pleading insanity? What is happening? www.medium.com/androidreporter
I love to blog http://www.naijadailyfeed.com
This has happened before, of course: https://9to5mac.com/2017/06/01...
and the case law is unclear: http://www.leadingedgelaw.com/...
In my state anyway (not Florida) there would a good chance the judge would be reversed on appeal. It was a traffic stop, not a battery or armed robbery.
Your sig is "I am armed because I am free. I am free because I am armed.". Yet you did nothing when your "rights were violated". Why do gun nuts always talk about "freedom" yet do nothing about it? When are you going to "stand up to tyranny"?
drive away stoned
Colorado isn't Amsterdam and these aren't "coffee shops" - you're picturing a bar when you should be picturing a liquor store.
Those dogs are just false positive generators. How many times do they bring them in and hey the dog says their's drugs and then they find nothing. It's no different than if they called another officer and asked that guy if there's drugs. Why do we allow searches based on a trained animal that could easily indicate on command. Also what about self incrimination? These guys are wiping their ass with the constitution.
Is it possible to have an alternate code which will instantly erase certain data as well as unlock the phone?
Iâ(TM)ve always thought this, equally as I know it will never happen.
Why do liberals always scream for censorship, disarming law abiding citizens, and mob attacks against people they don't like.
When are you liberals going to stop attempting to force their tyranny on others?
What would you expect me to do? When I got home I did some homework and sent a couple e-mails to some civil liberties groups I thought might be interested. I thought this was a violation of rights but the lawyers that answered my e-mail thought that there was enough precedent for what happened that it was a lawful search. I wasn't arrested so I couldn't make a case regardless. I didn't record anything, as I didn't have any such equipment with me.
Without an arrest I can't take them to court. I suspect they know this so they simply don't arrest anyone unless they find something that's a serious violation. Standard procedure is to offer a plea deal to avoid court (likely a heavy fine and no jail), and drop charges if anyone doesn't take the deal. It's a shakedown, a fundraiser, that's all. They don't want to go to court or put anyone in prison, they want money.
Again, what should I have done? Shoot the cops?
I am armed because I am free. I am free because I am armed.
This is *not* a Fourth Amendment issue, because the police were able to get a (supposedly) valid warrant from a judge. Thus it was a proper search. This is, rather, a First Amendment issue.
Regarding you potentially being charged for driving without a license because your refusal invalidated your license to drive: were a prosecutor so foolish to try to prosecute you, it would be easily torn to shreds by a competent defense attorney. You were driving; you stopped driving in order to be detailed by a LEO; you refused the search; at that point your license was revoked. No driving occurred at any time your license was revoked.
Driving without a license does not allow for a search of your vehicle; however, having to show proof of insurance and a license to operate a motor vehicle serves as a pretext for LEOs to stop you at any time. You could be charged with operating a motor vehicle without a license, and depending on jurisdiction, I suppose you could be detained -- but that does not give police carte blanche to violate your civil rights.
I always chuckle when I see one of those NRA "Stand and Fight" bumper stickers. 95% of the Second Amendment enthusiasts I've met or seen are obese and couldn't "stand and fight" if their lives depended on it.
Why do gun humpers always assume that anyone criticizing them must therefore be a liberal?
... that was... pretty reasonable. Thanks.
Thank you!
I was wondering about this myself.
If you are stopped by police, are you required to wait for them to get a K9-unit?
This goes back to all these "how to interact with police"-videos. Ask if you are arrested. Ask if you are free to go. Can they detain you without grounds of suspicion?
Dear USA, it feels very weird that you almost have to bring an instruction manual to interact with the police. Somewhere along the line you fucked up.
Harald
IANAL and I'm not 100% on this, but I believe that the current standard is that if the call for the drug dog does not extend the time for the purpose of the stop to be fulfilled (the ticket is written), then the drug dog search is valid. If waiting for the dog extends the duration of the stop, then it is impermissible and the results are not valid.
Once you are arrested, the appropriate recourse is through the courts. In this case, obviously, through the appeals courts.
> Since the police had a search warrant, I am not sure there is a constitutional argument to be made.
It seems to me the warrant changes the argument a bit vs not having a warrant.
First, one can argue if the warrant was Constitutional. The Constitution doesn't say "no unreasonable search and seizure - unless you have a warrant". A warrant which purports to authorize an unreasonable search is unconstitutional and therefore void. One could certainly argue that the search is unreasonable, which voids the warrant.
The Constitution does say "no warrants shall issue, but upon probable cause". Was probable cause shown that the phones contain evidence of a crime? If not, the warrant is unconstitutional.
Suppose the warrant and search are themselves constitutional. Then you run into the fifth amendment issue forcing the person to reveal the password. It has been ruled that where ownership of the device is disputed, revealing the password would be tantamount to testifying that the defendant owns the device. The fifth amendment applies and the defendant can not be forced to reveal the password, if the phone may not be his.
Suppose it's agreed that the phone is his. One CAN be forced to hand over documents in your possession. That's evidence, not testimony. Had the court ordered him to hand over the contents of the phone, rather than the password, that would probably be constitutional. Where the defendant can turn over unencrypted copies, it can be argued that he can be forced to do so.
The 5th says you can't be forced to give testimony against yourself. Testimony is spoken evidence. Evidence is things you'd present to the judge or jury to demonstrate guilt or innocence. Is the password spoken evidence, testimony? Probably the password isn't evidence; you wouldn't show the jury the password. Rather, it's something that is needed in order to decrypt the evidence. If it's not evidence, it's not spoken evidence - not testimony. If you aren't asking the defendant to testify as a witness against himself, the 5th amendment protection doesn't seem to apply. I *want* a right to not reveal my password, but thinking through existing law, if the search is reasonable and there is probable cause, I don't see any such protection in existing law.
Of course if the search is unreasonable, or if there is not probable cause, the search itself is unconstitutional.
Luckily the iPhone is designed so that the biometrics donâ(TM)t work after a set period of time. By the time you get to a judge to order you to use your fingerprint it wonâ(TM)t work anymore, and we revert to what you know.
The legal precedent recently set was that biometrics can't be withheld to unlock a device. So finger prints, face scans etc BUT passwords or codes can't be forced to hand over.
That's why despite doing nothing illegal my phone (after a reboot) requires a passcode along with finger print to unlock and if I were to get pulled over by the police I'd immediately shut my device off.
I genuinely have nothing to hide but what's on my phone is none of their business. Of course they wouldn't arrest me or find anything with a k9 in my car either so I likely don't need the added security but I put it there because you never know when a cop will get...excited and arrest you for something stupid.
Like the time I got arrested because I had no inspection sticker. I had my windshield replaced at work that morning and the guy didn't transfer the 4 week old sticker like he was supposed to. I got pulled over and arrested bout 60 yards from home for it. My wife who was in the car then had to follow the police to the station and waste $40 to bail me out then I had to waste time in a court room where a judge tossed the case because it was stupid and I had proof my vehicle was properly inspected and it was a simple ass mistake.
In that situation what happens if they arrest me, unlock my phone with my finger and someone sends me a text asking if I have any weed? Are they gonna try to push for some kind of drug charge because of it? Who knows...and I'm not unlocking my phone to find out..and yes I've gotten texts like that out of nowhere and no I don't have any weed lol
Nearly everyone here seems to think we've lost the protection of the Constitution. I mostly agree. But when a president nominates a supreme court justice who takes the Constitution seriously and has a record of ruling based on his concept of the Founders' original intent, we're told the sky if falling and that all of our liberties are going down the toilet. You can't have it both ways.
While it's possible that he's a strong willed constitutional advocate, I doubt that this is his motivation.
I think it's FAR more likely that he's got incriminating evidence on his TWO phones and he'd rather serve 6 months than deal with what that evidence would bring.
This is not to say that I don't feel that this is absolutely a constitutional issue and utter bullshit on the part of the court. But, I don't see a brave man, here.
P.S. Since it seems that Customs and Border Protection can search any cellphone within 100 miles of a border, I'll expect something along those lines from the state in response to any constitutional argument. Especially since he's Hispanic.
I don't think that means what you think that means.
"Run up the flagpole" refers to presenting an idea or proposition to see if you can get agreement on it. The full phrase is "Run it up the flagpole to see if anyone solutes".
https://en.wikipedia.org/wiki/...
Perhaps you meant "resources to run the judge out of town" or similar.
No, if a cop smells mj, that is probable cause all by itself. No need for a dog at that point, the officer can get everyone out of the car and search it. Period. What's more, he can pat down all passengers for 'officer safety'.
Asking for consent to search, and calling the dogs when consent is withheld is SOP for many departments.
On the other hand, the driver may have a get out of jail free card because the wait for the dog extended the duration of the stop. That's a no-no. That's an appellate issue, though, so he'll have to wait for that.
"Stand and Fight" is multi-tasking.
-=This sig has nothing to do with my comment. Move along now=-
What's the probably cause to get a warrant to search his phone?
How could he forget his password?
The whole thing about being held while a drug dog was brought to search the car would violate the SCOTUS decision in Rodriguez (2015). IF this description is accurate (big IF) then it seems as though the guy should be set free on that alone.
The double jeopardy idea is interesting.
Otherwise, I don't see why legitimate reason they would need to search the phone?
If phone drive is encrypted doesn't 5th Amendment apply as well?
Can any phone be set up to erase its contents upon being unlocked with an alternate code? Android, perhaps?
I have lived in Florida for six decades and will agree that both police and courts jump off the rails from time to time. The idea that a man can not remember a password is absurd. I have forgotten passwords on many occasions since I use the net so much. So what kind of third eye in this judges noodle enables him to decide that the man really knows his password? Keeping prisoners is expensive and over such trivia the public does not need to pay more taxes every time some judge has a bad day.
I thought the Supreme Court decided, only a couple of years ago, that extending a traffic stop even by a few minutes for the purpose of waiting for a drug dog to arrive was unconstitutional. Isnâ(TM)t this marijuana possession charge thus bogus, and the subsequent âoeprobable causeâ created by it to request the phone search also unconstitutional? http://thehill.com/regulation/...
A judge, (presumedly a seasoned practitioner in legal jurisprudence) should have identified the 5th Amendment conflict at hand instead of flexing "I AM ZE LAW" muscles. It's about frigging time people start to get with the program and realize that the everyman cannot be relied upon to have basic legal sense.
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
If he is going to incriminate himself by unlocking the phone, I think that falls under the 5th Amendment.
That would seem an excellent way to add a charge of willful destruction of evidence to the list of sh*t they're going to throw at you.
I'm amazed you GNAA trolls have managed to stick with it for the better part of two decades. What do you get out of this?
What do you mean, the gun nuts did nothing? They searched his car with a drug dog, even though he refused to allow them to search!
The guy was pulled over on an extremely minor misdemeanor traffic stop. The cops had no absolutely no reason to even think about searching his car in the first place. The "drug dog " (which are widely known to be used to alert to whatever the handler points to) used as a tool to turn this into a criminal matter in the first place is the overreach here. The phone is a minor side story. Y'all already live in a police state and are arguing over which violation of your freedom is the one sinking the ship. The ship is on the bottom already.
Someone somewhere right now is writing an extension to iOS that implements duress codes.
Type in XXXX for a password: get access to your regular phone
Tppe in YYYY for a password: get access to something that *looks* like your phone, but all the information is bullshit. The numbers are all just faked numbers based on your area code and dialing pattern, but with entirely different times/dates.
Text messages are a mishmash of hyper generic "Hey, we need milk", "Don't forget to give mom a call, it's her birthday", yada yada yada.
Type in ZZZZ for a password: Put up a fake desktop but nuke the phone.
Yes Francis, the world has gone crazy.
IANAL but I recall that contempt of court for failure to comply orders are supposed to be purely coercive and not punitive. Meaning, the judge can hold you for as long as it takes you to give in or for him to decide that you're never going to give in. The fact that they've out of the gate got a time limit suggests that they're applying it punitively.
And honestly if all the want are his text/call logs (i.e., find the dealer), then they can get that from the phone company. So obviously they are hoping to find more than just simple connections to other people.
Actually I think this is awesome and right.
It takes away the moral arguments against phone companies like Google and Apple.
I don't think there is anything wrong with it. Both from an interpretation of the amendments and by basic logic....
It's all just pretent outrage from people who have never understood the constitution nor thought about it logically.
he has every right to "forget" the password and the judge has every right to lock him up for contempt. see you in court.
nothing to see here - move along
Huh, I just realized how clueless I am about this: is contempt really something that gets onto your criminal record at all? It's not a conviction, but I guess it's a type of arrest.
And then even if it does get on there, would that really have much of a stigma? (I guess it depends on who is looking at it.)
A major part of the aim of lower courts is to pull money out of defenseless people and keep those same people afraid. (It's mild, government-sanctioned extortion and terrorism.) Real justice is for people with the money to keep fighting.
---
I am armed because guns are REALLY cool. I am free because there are people more mature than me all over the place.
And then you got shot and died. Aw.
With marijuana getting legalized and public opinion softening towards it, they need to find new creative ways to jail people and keep up quotas.
Everyone is guilty of something and they WILL find something to nail you on if someone wants to. Or if a prosecutor needs a promotion.
I'm a good cook. I'm a fantastic eater. - Steven Brust
Refusing a search is proof of guilt and attempting to defend one's self is a crime in and of itself.
What a country.
I'm a good cook. I'm a fantastic eater. - Steven Brust
are you literally using the slippery slope fallacy as an argument?
It sounds like some judge has some extremely un-American views. Why the fuck would he sign a warrant to have the phones searched based on a traffic stop, instead of laughing in the cops' faces? He should have been screaming threats at those cops such that they were too terrified to ever ask him for a warrant again.
At least, that's what you would expect from a normal, pro-America judge. Sounds like this guy has a different vision.
WHY THE FUCK DID THE JUDGE SIGN THAT WARRANT? It doesn't many any sense at all. The judge needs to answer that question before he has the opportunity to hurt anyone else. And if he won't answer reporters' nice questions, then the people are going to have to resort to more extreme means to protect their society from these gummint abuses. He needs to start talking now! The People should hold him in contempt of society until he cooperates by at least explaining where he got the crack that he was smoking on the day that he signed the bullshit warrant. He's already indicated that he thinks his conflict with The People has already escalated to where it's acceptable to use forceful imprisonment, so I think society has a lot of hypocrisy-free options here.
Because freedom of speech, freedom to defend yourself, and freedom of association are COMMON SENSE ideas that any reasonable person would agree with.
Only liberals are so retarted that those basic freedoms become problems.
It's called the "implied consent" law, and it applies to drug & alcohol testing at a traffic stop, not a general search of the car. You can't revoke the permission without giving up the driving license. You do have a choice of tests - field or blood - though the latter is usually done only after an arrest or in a hospital after a collision - but you can't simply refuse to be tested. At least in my state, as I said, implied consent does NOT apply to a general car search; that has to be justified on other grounds.
The lower level courts are filled with lower level thought judges. Spend one day in court and you will see the most blatant bias towards the courts power for the sake of itself. Nearly everyone in the court system is complicit in the lack of principals and they usually laugh (directly or secretly) at people who believe in a fair sense of justice.
Where the hell do you think those higher court cases, with Constitutional arguments at play, arise from? You don't just start with a Supreme Court case "because Constitution". You have to follow a very well-defined path up through the court system.
But, but, but . . they're our men in blue!!! They're first responders!!! They're HEROES!!!!!!
Maybe they were pissed off at you because you didn't thank them for their service.
Others mentioned how if this guy had a real aggressive defense team, this probably wouldn't be an issue.
I remember reading about when some places passed laws against pants sagging and the first thing I thought is how on earth can this be constitutional? There is no meaningful legal distinction between whether your butt is covered by underwear or by blue jeans. If I wanted to walk down my residential streak wearing nothing but a pair of tightie whities, then legally speaking, I am "fully dressed".
But the reality is that those laws exist purely as a pretext for cops to stop and frisk poor kids, or even just to hassle kids hanging out at the mall and getting on people's nerves, and so no one is ever going to actually challenge it and that's what they're counting on.
Whats the point of all this??
Whats the monetary value of the info that may be contained on his phone?
does it out weight the value of the sentence?
who assigns this crap?
whom value's the punishment versus the crime?
Do you immediately divorce your significant other because they say one thing wrong? Probably not. The point is there is something called reasonable force. Yes us "gun nuts" don't use our guns EVERY time some minor infraction of justice occurs as that would be anarchy. There are alternative peaceful options to resolve this issue. Guns are to be used in last case scenarios when the government has become so tyrannical that there are no other options left. Until that point they also stand as a deterrent to ensure the government never reaches that point. Shooting someone over some court opinion that you dislike would only add fuel to the gun grabbers argument. Then again many gun grabbers would happily sacrifice the lives on innocents if it meant furthering their agenda. In this case I am sure there are many like you wishing needless violence occurred so they would have one more thing to point to and say "guns are bad".
Something tells me there's more to that story. A cop isn't going to waste time arresting someone for not having an inspection sticker.
You have to understand that nerds and geeks are social outcasts and in the vast majority of cases, they have a lot to hide. Most of them hold extremely deviant and perverted sexual fantasies and engage in activities that society finds - rightfully so - reprehensible if not downright abhorrent. Siding with other unpleasant persons is second nature to them.
>They have no way of knowing if there is evidence on the phone.
According to the warrant, the judge find they DO have probable cause to believe there is evidence on the phone. I don't know what their probable cause it, but if the defendant said "my dealer texted me saying to meet him at Denny's to get the weed", that would be probable cause to believe such a text message is on the phone.
> If the prosecution wants the contents of the ... Thatâ(TM)s their prerogative to do if they have the resources.
If they have probable cause. Without probable cause, they shouldn't be searching it.
I think you contradict yourself when you say "they have no way of knowing there is evidence on the phone ... they can search it". Constitutionally, they need to show that specific evidence will likely be found before they may search (absent permission from the owner).
> They cannot force you to provide evidence against yourself.
Not quite true. They cannot force you to TESTIFY as a WITNESS against yourself. They CAN force you to hand over evidence you have in your possession.
For example, suppose a bank illegally opened accounts for "customers" who never asked for them. The bank has records showing when the accounts were set up, by whom. The bank can be forced to hand over those pre-existing records.
Suppose it were a crime to be negligent (not careful) in allowing classified information to be released on to unauthorized networks. Suppose someone was "grossly negligent", er I mean "extremely careless" in sending classified information to a computer in their basement. They CAN be forced to turn over that computer. In fact, once they become aware of investigation, intentionally destroying the evidence by "wiping" the computer is a separate crime.
When someone is ordered to turn over evidence in the form of documents, of course they aren't allowed to encrypt the documents first, or glue them all together with super glue, or otherwise mess with the ability to examine the evidence.
>The contents of the phone are evidence.
And you must turn over evidence. You can't be required to produce new testimony against yourself, you can be ordered to turn over evidence.
It's a sticky area when the evidence is stored in an encrypted form. I don't know that there is a well-defined rule or that we can make any rule that we'll be glad for in all situations. After a legitimate search warrant is issued bases on probable cause, should Trump and Clinton be allowed to hide all the evidence of their crimes by encrypting their hard drives and refusing to unlock them, no matter what the circumstances? I don't know that they should. I do know I don't want cops going through my phone, even with probable cause.
I tend toward a kind of middle ground - a court could order Trump / Clinton to "hand over all of the text messages you have from Glenn Simpson during 2016". That allows the specifically evidence to come out, without having police rifling through somebody's phone, looking at unrelated information. An officer of the court could observe to see that the person is producing all of the requested, relevant text messages.
than what he would get for whatever he may have done that we don't know about. If his phones have incriminating evidence, he could be getting off easy with 6 months.
Bullshit hallucinations! This is an utter and blatant disregard against self-incrimination.
If there is a stab victim, and one of your kitchen knives is missing, they can't ask you where the knife is. Well, they can, but you can refuse to answer. It's not contempt of court to plead the 5th. It's a protected right. Regardless of whether or not the knife was used, your fear of self-incrimination is warranted or not, or anything else. It's a right.
Also, don't give me "your pin code" can't incriminate you. Neither can the geolocation of the bloody knife (pun intended).
Your release isn't a release to search your car, it's a release to search your breath and blood in the event they suspect you are driving under the influence.
If they do their physical tests (walk the line, recite the alphabet, touch the nose, etc) and believe you are under the influence your signature obligates you to blow in the breathalizer or submit to a blood test, if you refuse your license is automatically revoked in most states. There are some states that can forcibly remove a blood sample if you refuse the breathalizer.
Under no circumstance does that signature obligate you to a vehicle search.
so the officer held him until a drug dog was brought in to give the officer enough probable cause to search the vehicle.
What they fail to disclose is most "drug dogs" are multipurpose dogs that will alert things other than drugs --- they have a rate of alerting that is sufficiently high that the dog appearing to detect something ought NOT be considered probable cause to search. Also possibly the officer/handler can decide that the dog is going to alert on the air outside the car in order to "justify" a more in-depth search in violation of the person's rights.
They found a misdemeanor amount of marijuana, which they used to arrest Montenez
So they found a misdemeanor possibly by already violating the right to be free from unreasonable search.
"Failing to Yield" at a traffic stop is by no means reasonable cause to suspect and look for a misdemeanor qty of drugs.
but they asked to search his two cellphones, which he also refused. They were able to secure a warrant for those as well, but Montenez claimed he had forgotten his password.
Now what praytell particular person or thing would they like to search his cellphone for?
Seems like "law" officers going on a fishing expedition.
Those guys were also OBAMA'S secret service.
GP commenter probably went into a spastic hissy fit and was arrested for his own protection.
STupid motherfuckers. We let these abuses happen. Maybe it's about time get a few million people together and go tell them to fuck themselves. I'll let the fuckers search my phone all day because I clean the device daily like I'm prepping for surgery. Fuck em.
You'd be surprised. Cops are cunts.
The Achilles heel of this advice is that an officer could claim to smell an unlawful substance. I imagine that would open the "probable cause" door. If nothing is found, what recourse do you have? My understanding is that no state has instituted a maximum false-positive rate for either officers or anti-narcotics animals, so with shield laws what they are, it would be difficult to combat this tactic.
In the state of Florida it says right on the front bottom of the license that operation of a motor vehicle consents any sobriety test required by law. It does not however say anything about searches.
Welcome to zero tolerance laws
Then the judges have failed to keep up with precedents from far before when celllphones and computers ever existed. It has never been the defendant’s responsibility to interpret evidence for the prosecution. They have all the individual bits that compose all of the data on the phone. It is up to the prosecution to make sense of them. It is no different than forcing a bookkeeper to testify to the meaning of coded entries in an accounting ledger. They cannot be forced to do so if it results in them being prosecuted for a crime in relation to the bookkeeping records.
Wow, cool legal argument. But, unfortunately, a cool legal argument isn't accepted until a judge somewhere accepts it as a valid legal argument.
Really, though, you should try it in court, see if it flies.
You can talk directly to the judge and thank him for his wisdom here: https://mobile.twitter.com/gph75
He should kill the judge and the cops. It's a shithole police state of a country, and he has a record now. He could at least take out some fascists for the rest of us.
He did not forget his passwords. He is in contempt.
But also, they should not be searching his phones. What are they searching for? It's a bullshit order. They have no probable cause for his phones. They have NO IDEA what's on there and they're just fishing.
A sobriety test is a search.
Waiving a right to exercise a privilege, assuming driving is a privilege, is not constitutional. I'd even argue that driving is a right, but I'll concede that point because it's not necessary to make my case. If they want a sample of my blood, piss, or breath, then that is a search. I have the right to refuse a search at any time and then they need a warrant based on cause to perform that search.
Here's something to ponder. What of a person driving without a license? They didn't waive their right to a sobriety test. What happens if they get stopped on suspicion of driving drunk? Would a warrant have to be obtained? Seems to me that to preserve my rights it's best to not even have a license to drive. Since I have no intention to drive while drunk I do have a license. I just find it curious that the law breakers have their rights protected more than I do.
I am armed because I am free. I am free because I am armed.
"Montanez was stopped for failing to yield properly. After being pulled over, the officer asked to search his car; Montanez refused, so the officer held him until a drug dog was brought in to give the officer enough probable cause to search the vehicle." https://www.oyez.org/cases/201... From the SCOTUS decision: "Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures." Cop dun screwed tha' pooch.
The got a search warrant for two phones over a misdemeanor amount of weed?
given that the officer was in violation of a 2015 Suprem Court decision by holding the defendant until the drug dog showed up anything that followed on from that illegal search, like the marijuana and whatever other evidence was used to get the warrant for the phones, is inadmissible in any US court and must be thrown out it will be interesting to see what happens next.
Per Rodriguez, detaining a stopped motorist to bring in a drug dog is illegal unless the officer has probable cause to believe that drugs are in the vehicle. It is also a general principle that police are not allowed to bootstrap probable cause from a defendant's refusal to allow a search.
The whole search is illegal and all the evidence is "fruit of the poisoned tree", full stop.
"Outrageous overreach based on the circumstances. It's not like this guywas a threat to national security. Sounds like butthurt cops not getting their way backed by a PIECE OF SHIT judge."
Fixed that for you.
Nah mate, Obama was merely a Clinton stooge
> How is this any different than jailing someone who is suspected of murder until they disclose the location of the dead body
If they can prove you HAVE a dead body (or unlawful email server) that is evidence, they CAN jail you until you turn it over.
https://www.law.cornell.edu/ru...
We're that not true, Hillary most certainly wouldn't have relinquished her home mail server, would she.
I think where the prosecution screwed up is in asking for the password, which is not evidence. They should have instead asked for "the text messages you sent in the last 24 hours to Jose Jones", which are evidence.
> How is this any different than jailing someone who is suspected of murder until they disclose the location of the dead body
If they can prove you HAVE a dead body (or unlawful email server) that is evidence, they CAN jail you until you turn it over.
https://www.law.cornell.edu/ru...
We're that not true, Hillary most certainly wouldn't have relinquished her home mail server, would she.
I think where the prosecution screwed up is in asking for the password, which is not evidence. They should have instead asked for "the text messages you sent in the last 24 hours to Jose Jones", which are evidence.
Well they have every single bit that is stored on the internal storage device of that phone, including all of the text messages.
It's bitztream the autism-hating, custom EpiPen-hating, Musk-hating, Qualcomm-hating, Firefox tabs-hating, Slashdot editors-hating Slashdot troll!
It's time phones had a "dummy password" unlocking the phone to a seperate account with no sign of their being any other accounts.
How's life in the hypocrite lane?
Tis true. However you technically can decline the sobriety test in Florida. It will mean an immediate suspension of your license, and you're probably still going to spend the night in jail and probably have charges brought up against you with what the cop witnessed. It might be easier to argue your way out of it in court since they will have less hard evidence against you. However you will still have lost your driving privilege for at least a year for having refused the sobriety test.
If you're actually shit faced behind the wheel you'll still be loosing your license for as long, however upon conviction of a DUI Florida does still allow for one to apply for a hardship license if one is not a repeat offender. The hardship license is pretty much only good for driving to/from work. I am not even sure that you are allowed to do typical errands like grocery shopping on a hardship license. Likely if you refuse the sobriety test a hardship license is not an option.
The courts have found a way around jury nullification, simply sentence people without any trial
I'm actually surprised they didn't shoot him.
Stupid criminal gets what stupid criminal deserves. Why you twits try to defend him is just laughable.
Cannabis were legal everywhere.
This is yet another sad tale of systematic oppression of a government body on its people.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
It's well-established law that one can be ordered to turn over evidence. Certain items on the phone are evidence.
The password is not evidence, it's a tool for getting evidence.
The supreme court has found that nobody has to wait for a drug dog to be brought to a scene. If the dog wasn't there, you have the right to leave. The whole search should have been tossed, but his name sounds mexican so no rights for him.
That would seem to indicate that it's used (relatively) correctly here. The defendant would need resources to attempt to refute the judge's verdict. Just because they have resources, though, doesn't mean they'll win their appeal. The verdict may get the "salute" of approval or it may be overturned. One might even go so far as to say that the judge and his verdict are interchangeable in this context.