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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.
But you would not expect your home to be served a search warrent for a misdemeanor amount of weed in your car for a traffic stop either.
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.
K9 units are referred to as probable cause on four legs. Since an officer can easily indicate to the dog that they want the dog to perform an alert (and can do so in a way that isn't obvious to normal people) the probable cause they grant is largely bullshit just like the polygraph.
The 'safe' analogy fails the 'mind reading' aspect. The judge has declared himself a mind reader with no corroborating evidence to support his ruling that the defendant does indeed know the passwords. He fucked up, in a major way.
Good-bye
Really? I've heard a crowbar can be used to brute force a password.
Intimidating someone into disclosing their password is exactly what is being used in this case. They're using jail time instead of a crowbar, but the theory is the same.
It is considered equivalent to requiring somebody to give the key to a safe in a physical search.
Which is a real shame, because it is nothing like that at all. It is closer to being forced to reveal the combination to a safe, when the combination only exists in your head. The difference is, that if you exercise your right to remain silent, the cops can still crack open the safe.
"Then we need an exception!" you say? No we do not. Another analogy I like to use is to equate an encrypted file system to a physical paper notebook that was written in using a fictional language that only I know. And I cannot be forced to teach the cops that fictional language.
> 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.
It's no different from the defendant claiming he's lost the key, while the judge thinks he's just carefully hidden it somewhere and isn't telling. Both (the password, or location of the physical key) are "mind reading" aspects. The case law does in fact apply here. This is what I've been trying to caution people against when they cite 4th Amendment protection for passwords. The 4th Amendment isn't a bulletproof shield. Once a warrant has been issued (as was in this case), pretty much all of your 4th Amendment protections evaporate. Failing to obey the warrant puts you at risk of being jailed indefinitely for contempt of court. No trial, no jury, the judge just sends you to jail because you didn't obey a court order.
This has nothing to do with the fourth amendment. It has everything to do with the fifth amendment. You do not have to aid the prosecution’s case against you. You do not need to cooperate. If the evidence in the phone is important enough, they will break the encryption on it. Just like they would crack a safe open if they wanted to get inside of it without having the combination or key. It is up to law enforcement and the prosecution to find what evidence they may. You cannot destroy evidence, by law, but you are not forced to produce it, either. Claiming that having knowledge of the password is somehow not incriminating is complete and utter bullshit. This would be no different than jailing someone in a murder case until they agreed to show the prosecution where the bodies are buried.