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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.
Although following the judge's order would be blatant self-incrimination, any attempt to use a Constitutional argument in a low-level court is declared 'frivolous' and will get you additional charges for contempt of court. This judge is betting that the defendant doesn't have the resources to take the case to those higher levels where Constitutional arguments are taken seriously.
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.
Weird. If the constitution doesn't "count" in the lower courts, shouldn't there be ordinary laws to reflect what the constitution says on things like self-incrimination? That's certainly the case here. In fact our constitution has no standing in court, and while the senate is supposed to check if newly proposed laws do not run afoul of the constitution before approving them, their decision cannot be challenged for being unconstitutional in any court either (although this is going to be changed slightly). For that reason, many of the principles in the constitution are subsequently set forth in ordinary laws as well, so that a judge may apply them.
If construction was anything like programming, an incorrectly fitted lock would bring down the entire building...
Laughable. Is the judge a mind reader? Is anybody capable of reading anybody else's mind? No. Therefore you don't know if the man is lying or not - and even if he is lying about not being able to remember his password, you are ALLOWED to have secret information that nobody else in the world can read, even the police. I say this as the most hardline person on crime you can imagine - I believe in jailing burglars for twenty or thirty years, at least - for example. The way to prevent 99% of crime is to massively increase prison sentence lengths - but this man didn't commit a crime by not incriminating himself (which is what giving up his password would do), and this is an outrage. The 'judge' should be jailed for twenty years for this crime - which is a crime against the rest of us.
How come judges get some sort of 'special law' to 'protect' them against people SAYING things they don't like? (That is what 'contempt of court' is, presumably', in this and almost all other cases.) In what world does SAYING something that somebody else doesn't like get you six months in jail? How is the even acceptable to most of the general public?
The police will probably argue that they are not asking for self incrimination, they are after his dealer. But anything they find in the course of that investigation...
In a country with proper rule of law, you don't go to jail if a judge "thinks" you are guilty of anything. The judge is supposed to put aside their opinion, and rule based on the law, which requires proof beyond doubt for a guilty verdict.
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.
Here's a twist on that I'd like to ponder. The ability to deny incriminating one's spouse is widely recognized, as best I can tell. If the dealer is the guy's wife then can he still be compelled to allow the search? I'd assume they might need some proof that the search would hold such a privilege, but doing so would mean an admission of a crime before the search happened, or revealing the commission of a felony in order to prove the privilege to conceal the evidence. Are there other relationships that carry similar privileges against compelled incrimination?
I'm thinking the grounds for initiating the search was very weak to begin with. I've read of other searches being tossed out on lesser police screw-ups than this. Maybe there's more to explain the need for a search that wasn't said in the article but this is sounding like they were fishing for something or were out to get this guy.
I am armed because I am free. I am free because I am armed.
But your ass sure as hell will be in jail if you destroy evidence, which is what the defendant is doing.
No?
The evidence is still there, it is just not accessible to the court.
The defendant isn't preventing any investigation from taking place, he is just not willing to assist with it.
They have two things on this guy. He failed to yield and he carried a misdemeanor amount of marijuana.
What would be appropriate is to fine him and let him go. They do not have enough on him to hold him in custody.
The phone thing is just a fishing expedition. They don't actually have any clear suspicion of this guy committing any felonies, they just don't like they way he looks.
A safe combination can be protected by the 5th amendment and you don't have to reveal it. The 5th amendment only doesn't extend to digital passwords because, uh, the password itself isn't self incriminating. Nevermind that the safe combination isn't self incriminating. Don't look behind the curtain.
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.
This has happened before, of course: https://9to5mac.com/2017/06/01...
and the case law is unclear: http://www.leadingedgelaw.com/...
AIUI, you cannot legally refuse to produce physical objects like keys, but you can legally refuse to give them the contents of your mind - in this case, a password. However, you really should phrase this as "I plead the Fifth" instead of "I don't remember".
If you massively increase prison sentences you just disincentives criminals from going to the extreme. Why not kill everyone in the house, you're already going to jail until you die for the burglary and rape?
It rarely happens, but a defendant can object to government's motion to drop charges. Judges will only give these objections serious consideration when they believe that there is a likelihood of some governmental abuse going on (and they give a shit about it). In these cases, a judge may deny the motion to drop and the case will proceed.
The government makes the motion when they think they are likely to lose in order to 'moot' the issue, which just means to make it no longer a contested issue in this case. They can then continue using the contested behavior because there was no judicial finding that it was unconstitutional.
Federal Prison inmates object to government motions to dismiss all the time. Every once in a while they are successful. Then we get new case law.
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
It does rarely happen. Another reason why someone would want to motion to NOT drop charges is for the purposes of double jeopardy; prevent them from potentially charging the defendant again at a later time. If you are acquitted, they can't charge you with the same crime ever again.
Another possible reason is to force the government to show its hand before it wants to, or in the case of a "show indictment" where the government had no intention of bringing someone to trial, but charges them anyway to show "See, we're doing something" (charging Russians for hacking).
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.