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.

Comments

"misdemeanor amount of marijuana" yielded this?

[OffTheLip]

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.

Re:"misdemeanor amount of marijuana" yielded this?

[Applehu Akbar]

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.

Re:"misdemeanor amount of marijuana" yielded this?

[umghhh]

This reminds me of this quote :"what good is a phone call if you are unable to speak" Somehow it fits here.

Re:"misdemeanor amount of marijuana" yielded this?

[JaredOfEuropa]

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.

Re:"misdemeanor amount of marijuana" yielded this?

[blindseer]

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.

Chances are if some civil liberties organization decides to provide free legal counsel to see a precedent set by a higher court then they just drop the demand to unlock the phone and the ability to prevent future abuse is denied.

I'm thinking we need a new standard on what grants standing for taking bad law to court.

Re:"misdemeanor amount of marijuana" yielded this?

[Anonymous Coward]

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?

Re:"misdemeanor amount of marijuana" yielded this?

[jrumney]

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...

Re:"misdemeanor amount of marijuana" yielded this?

[jrumney]

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.

Re:"misdemeanor amount of marijuana" yielded this?

[MitchDev]

Too many "cops" these are nothing more than powermad bullies, and then the supposedly good cops are too busy protecting the "blue line" that they refuse to turn in the bad cops...

Is it any wonder so few trust the police anymore?
 

Re:"misdemeanor amount of marijuana" yielded this?

[Anonymous Coward]

The Constitution is supposed to be the highest law of the United States and should apply in every federal court. The GP is suggesting that lower courts are less open to hearing arguments that law enforcement has violated a defendant's Constitutional rights. He's suggesting that appellate courts are more open to considering those arguments. That's unfortunate, because the Constitution has supersedes any other law in federal courts.

With respect to state courts, portions of the Constitution should still apply. Although the Bill of Rights initially applied to just the federal government, the 14th amendment's due process clause allows for the Bill of Rights to be extended to apply to the states. When these rights are applied to the states, this is referred to as incorporation. For example, McDonald v. City of Chicago (2010) incorporated the second amendment right to keep and bear arms against the states.

With respect to the fourth and fifth amendment, all of the rights except indictment by a grand jury have been incorporated against the states. If you'd like more details, I refer you to Wikipedia's article on incorporation.

Re:"misdemeanor amount of marijuana" yielded this?

[Anonymous Coward]

Why is one party allowed to drop charges without the other party's consent anyway?

Re:"misdemeanor amount of marijuana" yielded this?

[Anonymous Coward]

A judge has avenues to determine what is "reasonably true" or "reasonably false" in fact, so you should learn about that. They do apply under the law, the judge IS in fact "the judge" for these determinations.

Re:"misdemeanor amount of marijuana" yielded this?

[Anonymous Coward]

In any country with a proper rule of law, there has a be a remedy for willful non-compliance with a lawfully issued court order. Contempt of court is refusing to comply with a court order, and a judge can order a person to be jailed until they comply. Any country with a functioning court system must have a mechanism for enforcing court orders.

The judge ordered the defendant to be jailed until he complies with the court order to provide the passwords. Determining whether non-compliance is willful is not something that can be determined with 100% certainty, so it is applied at the discretion of the judge.

More alarming is what might be described as the defendant being held in "contempt of cop" (not a legal term). That refers to someone who is detained by law enforcement being further detained and subject to searches on the basis that they refused to waive their rights or perhaps just disrespected the cop. The act of refusing to waive rights leads to dubious claims of probable cause and a fishing expedition by law enforcement. That seems to be the bigger problem.

Re:"misdemeanor amount of marijuana" yielded this?

[Joce640k]

If it was all as logical as you paint then the world wouldn't need "judges".

What are the chances of carrying two phones around and not knowing the passcodes?

Re:"misdemeanor amount of marijuana" yielded this?

[Joce640k]

I'm sure there's an ambitious, fame-seeking lawyer out there that's salivating over the idea of taking this all the way to the supreme court.

Re:"misdemeanor amount of marijuana" yielded this?

[Anonymous Coward]

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.

Judges who automatically consider Constitutional arguments "frivolous" should understand the fact that they're only showcasing how to disrespect the rule of law, and their citizens will react accordingly. This is just another validation that the system is now exclusively for the use of the wealthy who essentially buy their way out.

Re:"misdemeanor amount of marijuana" yielded this?

[MrKaos]

Chances are if some civil liberties organization decides to provide free legal counsel to see a precedent set by a higher court then they just drop the demand to unlock the phone and the ability to prevent future abuse is denied.

Well to do that you would have to overturn the domestic terrorism acts that allow these abuses to take place. Kind of makes your I am armed because I am free. I am free because I am armed sig look like a joke because you're not really free.

I'm thinking we need a new standard on what grants standing for taking bad law to court.

You mean where bad laws that go against the constitution are not laws because they are unconstitutional. I think you will find that standard is called "The Constitution" and whilst I support the right for people to carry arms, the way to defend it is with a pen, not a gun.

Re:"misdemeanor amount of marijuana" yielded this?

[InfiniteBlaze]

At low levels, the JUDGE is the law, unless the defendant has the resources to run the judge up the flagpole. In this case, the guy is probably going to serve his time and the tell the story of how he was f*ed by the system for the rest of his life, further degrading faith in the system and further diminishing the likelihood that anyone will bother to invest time and resources in fixing it.

Re:"misdemeanor amount of marijuana" yielded this?

[TheRealQuestor]

Right with ya there. Right up till the "drive away stoned" part which can land your ass in jail for "DUI".

Re:"misdemeanor amount of marijuana" yielded this?

[blindseer]

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.

Re:"misdemeanor amount of marijuana" yielded this?

[CrimsonAvenger]

The judge is supposed to put aside their opinion, and rule based on the law, which requires proof beyond doubt for a guilty verdict.

Two things.

First, "reasonable doubt". The "reasonable" is important.

Second, he's in jail for Contempt of Court. It's pretty clear that he was guilty of that. He should have taken the Fifth instead. But "I forgot" is so clearly telling the Judge "yuck fou" that Contempt of Court was a slam-dunk.

Re:"misdemeanor amount of marijuana" yielded this?

[Anonymous Coward]

Chances are with qualified immunity, no one with the power actually cares. If the city"tax payers" have to pay $100k to the defendant, what does the judge or police car?

Re:"misdemeanor amount of marijuana" yielded this?

[stealth_finger]

Well, only the party bringing the charges can drop them and I doubt you'd find too many defendants that would contest it.

Re:"misdemeanor amount of marijuana" yielded this?

[Anonymous Coward]

More alarming is what might be described as the defendant being held in "contempt of cop" (not a legal term). That refers to someone who is detained by law enforcement being further detained and subject to searches on the basis that they refused to waive their rights or perhaps just disrespected the cop.

Yep, this the real problem here.
In this case the cop did find something to raise a fuss over. (Assuming that the drugs weren't planted.)
It could just as well have been that he searched the car and didn't find anything.
I do not plan my days so that being held somewhere for an hour is a non-issue.
The cop did clearly not have the tools at hand to make sure that his "random" search didn't cause unnecessary inconvenience in the case he didn't find anything.

Also, I'm pretty sure that if the mans name had been Smith he would just been waved away with a warning.

Re:"misdemeanor amount of marijuana" yielded this?

[bill_mcgonigle]

Of course the Constitution counts (it's the Supreme Law of the land) but local backwater judges ignore it. They're not going anywhere and they don't want to waste their time thinking because T-time is at 2.

Re:"misdemeanor amount of marijuana" yielded this?

[WorBlux]

Anybody can file a habeus corpus action for this guy.

Re:"misdemeanor amount of marijuana" yielded this?

[sjames]

I routinely reset passwords for people who forget. Since that password is the same for every device in the enterprise, these are people who have literally forgotten their password for hundreds or thousands of devices.

Re:"misdemeanor amount of marijuana" yielded this?

[blindseer]

Well to do that you would have to overturn the domestic terrorism acts that allow these abuses to take place. Kind of makes your I am armed because I am free. I am free because I am armed sig look like a joke because you're not really free.

I know I'm not really free. So long as the police are empowered such wide latitude to search for drugs, child pornography, and "terrorism", then we have no real protections against unlawful search and seizure. The reason we have the right to keep and bear arms enumerated in the Constitution was because the government of the time used the premise of searching for weapons to search for anything that they felt like. Now we see the same violations that the founders wanted to prevent only instead of guns being the "evil" they seek its drugs. What is now considered a prohibited substance was then considered a common crop. They didn't smoke the "weed", they used it to make things like rope and potato sacks.

You mean where bad laws that go against the constitution are not laws because they are unconstitutional. I think you will find that standard is called "The Constitution" and whilst I support the right for people to carry arms, the way to defend it is with a pen, not a gun.

No, that cannot be found in the Constitution. Selective enforcement to keep bad law is common with gun laws. I can give a few examples.

There's been several cases of people being charged with a felony for bringing an unregistered firearm into the state of New York. This crime has a mandatory minimum of 3 years in the state pen. Each time someone has been charged no one has gone to prison and the charges have been plead down to a misdemeanor with a sentence of community service and a fine. The law says 3 years minimum, but no one has actually served that for admitting guilt. Why is that? Perhaps because the people charged have been upstanding citizens, like a registered nurse on vacation. By taking it to court that means they have to be in prison while the case is appealed. To take the law to court the person must first be found guilty of the felony. Getting a sentence of $50 and time served is far better than chances of a felony if the case fails. The state has deep pockets and no real concern on whether the law is struck down in the end so they are perfectly willing to go to court. Those caught committing a more serious crime at the time of being caught will plead to having the gun crime dismissed in exchange for a lighter sentence. New Jersey has a similar law but, as I recall, governors will issue a pardon to prevent the law going to appeal.

In Chicago a man breaks into a home while on the run from police. The homeowner shoots the man with his unregistered gun. The police haul away the dead thug and investigate, revealing the unregistered firearm in the home. No charges are brought against the home owner. Why? Because they know the law cannot stand up in court but they can charge criminals with the crime to get leverage on a plea deal. They also can expect that arresting a man for defending himself against a home invader could mean riots. Upstanding citizens in court over a bad law can get the law overturned real quick. Criminals that know they are guilty would rather make a deal than make some stand on a bad law.

Oh, and defending one's rights with a pen means nothing if there isn't a gun to back it up. Kind of like speaking softly but carrying a big stick.

Re:"misdemeanor amount of marijuana" yielded this?

[XXongo]

So.... corruption.

"corruption" would mean that the police, or the judge, profited somehow from this. Nope.

the correct term is "police overreach".

Re:"misdemeanor amount of marijuana" yielded this?

[jythie]

Since the police had a search warrant, I am not sure there is a constitutional argument to be made.

Re:"misdemeanor amount of marijuana" yielded this?

[spire3661]

Not in cases of what is in my head. Further the judge needs supporting evidence to call me a liar. Judges are expressly forbidden from 'reading minds'

Re:"misdemeanor amount of marijuana" yielded this?

[houghi]

If there is no acountability, it is not enforced and thus does not count.

You could easily say that the 3 laws of robotics apply for whatever reason, but nobody will listen either.

At this moment, the Constitution is a driver for a plot in a stor, not something that is real.

Re:"misdemeanor amount of marijuana" yielded this?

[Joce640k]

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.

I bet there's a whole bunch of lawyers out there who'd be willing to take this case just for the fame (and experience of going to higher courts, obviously).

Re:"misdemeanor amount of marijuana" yielded this?

[BankRobberMBA]

Well, framework-wise, the warrant requirement is what stops the search. Once there is a warrant (meaning a judge has agreed there is probable cause to believe there evidence of criminal activity), LE can usually search.

In your example, the evidence of criminal activity would be found, everyone would go to trial, and the evidence would be contested for 'admissibility'. There a fact-finder (the judge) would determine if the evidence was in fact privileged.

If so, that evidence will be thrown out, as well as any evidence discovered based on the disclosure of that evidence (this is the so-called "fruit of the poison tree"). Then the government can try to get that evidence back in by claiming inevitable discovery, and a donnybrook ensues.

If the evidence is not privileged, it will be admitted, defendants will probably be found guilty, and it's off to the appeals courts to try to get it overturned. Good luck, they'll need it.

Odd thing about this case is that there is some legal precedent that pass-codes and PINs are testimonial ("something you know"), whereas keys and fingerprints are not (they are "something you possess"). Pass-codes and PINs may be 5th Amendment protected. He's in Florida, though, so I'm not sure how they have ruled.

Re:"misdemeanor amount of marijuana" yielded this?

[TheCastro1689]

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?

Re:"misdemeanor amount of marijuana" yielded this?

[burtosis]

Also, it may not be unreasonable search and seizure. The article is written a bit one sided. If the cop smelled marijuana in the car, he/she was well within their rights to search the vehicle.

Bullcrap. Cops use the "I smell marijuana" excuse to violate citizen rights on a daily basis. I once refused to have my car searched, the cop says in a sarcastic tone "oh, I smell marijuana!" and proceeded to start searching. I said "why did you even ask?" Which nearly got the shit kicked out of me for. 5 cop cars and 2 hours later and they found nothing because there was nothing and never had been. I guess I'm lucky they forgot to bring thier own drugs and plant them on me, or give me 10 conflicting commands then summarily execute me with thier firearms when it's impossible to comply.

Re:"misdemeanor amount of marijuana" yielded this?

[BankRobberMBA]

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.

Re:"misdemeanor amount of marijuana" yielded this?

[blindseer]

You can't know that because there's been three new appointments to SCOTUS since Heller, and it can take years for the case to get there. In that time there could be another new appointment because of a someone having a heart attack, retirement, or getting hit by a bus. I'm guessing they'd need Ginsburg's vote, she's 85 and had cancer... TWICE.

Also, there's little to gain on the state's side. They can already use the law as leverage since every law is presumed to be constitutional until challenged. They won't bring it to court unless something very unusual compels them. What might that be? I don't know, just something unusual.

As I recall DC was going to take a case on the carry of weapons to court but was convinced not to by some gun control people. They chose instead to pass a law allowing carry with a license than take the chance of having the court rule they could not even do that.

Re:"misdemeanor amount of marijuana" yielded this?

[Sigma 7]

He should have taken the Fifth instead.

"Taking the fifth" is automatic, in the same way that "taking the sixth" is also automatic, or even "taking the eighth".

The US Constitution is supposed to be the supreme law of the land, As the supreme law, it's the duty of law enforcement to follow said law rather than requiring accused to appeal to the supreme court to get the right to council that they should have been entitled to in the first place, or permitting random citizens to be kidnapped and dragged across state lines.

Perhaps it's the news feeds I subscribe to, but there's a disproportionate number of civil rights violations within the United States, as if it's a systemic issue. I should be hearing similar complaints from adjacent countries, yet it's as if those legal systems have those issues under control.

Re:"misdemeanor amount of marijuana" yielded this?

[swillden]

In this case, the guy is probably going to serve his time

Probably not now, since his case has gotten national exposure. ACLU, EFF, NAACP, possibly even SPLC will be ready to provide lawyers. Even without them, some enterprising local lawyer could hook up with him and then either represent him pro bono for the publicity, or set up a legal defense fund and accept donations. I'd throw in a few bucks, and so would tens of thousands of others.

Re:"misdemeanor amount of marijuana" yielded this?

[Enigma2175]

Also, it may not be unreasonable search and seizure. The article is written a bit one sided. If the cop smelled marijuana in the car, he/she was well within their rights to search the vehicle.

The cop did not claim to smell marijuana in this instance, although that pretext is frequently used in warrantless searches.

The request for the cell phone might be to find the dealer seeing as most dealers sue text messaging to coordinate the exchange.

That has no bearing on this case, since there was no probable cause (or even reasonable suspicion) that the defendant is a drug dealer. The amount of marijuana they found is not consistent with distribution and no evidence was presented that they suspected the defendant of any crime other than marijuana possession. This case is a clear-cut violation of the 5th amendment, they are forcing the defendant to give testimony in his own trial that may incriminate him.

Re:"misdemeanor amount of marijuana" yielded this?

[Applehu Akbar]

Certainly, but this was a municipal court, where protecting police revenue outweighs Constitutional concerns.

Re:"misdemeanor amount of marijuana" yielded this?

[Applehu Akbar]

This defendant’s best shot would be to catch the interest of a legal foundation like Institute For Justice.

Re:"misdemeanor amount of marijuana" yielded this?

[zmooc]

I regularly transport marijuana in my car (I'm not in the US). Non-smokers with a good nose would immediately smell it's presence, even if properly packaged. The delicious smell of good fresh marijuana is almost impossible to hide. So if there was marijuana (there was) and it hadn't been lying there untouched for a week, it's highly likely the cop could smell it.

Re:"misdemeanor amount of marijuana" yielded this?

[Applehu Akbar]

Because this a criminal case, rather than civil, the prosecution must prove he was lying. How would it go about reading his mind?

Another right that low-level authorities have, though, is to simply steal any funds the defendant might have to pay lawyers because use of the M-word makes it a drug case, even if that is the explicitly intended use of the money.

Re:"misdemeanor amount of marijuana" yielded this?

[fuzznutz]

Since the police had a search warrant, I am not sure there is a constitutional argument to be made.

A search warrant grants the right to conduct a search, it does not guarantee a successful search.

Re:"misdemeanor amount of marijuana" yielded this?

[sjames]

HOWEVER, what he ACTUALLY said is "I don't know the code".

Actual story from someone who read TFA, he said he just bought the two phones. Perhaps the person he bought them from was less upstanding than he thought. He may ACTUALLY not know the passwords. He may have never known the passwords or even that there was a password.

He is now in jail for up to 6 months with no trial pending and without having been found guilty beyond reasonable doubt by a jury of his peers.

Re:"misdemeanor amount of marijuana" yielded this?

[Applehu Akbar]

"I forgot" is so clearly telling the Judge "yuck fou"

Which in this case is precisely what was called for. The judge had no business asking for self-incrimination.

Re:"misdemeanor amount of marijuana" yielded this?

[MrKaos]

No, that cannot be found in the Constitution.

Wrong again. Here is what a lawyer says about striking down unconstitutional laws at any court level. Here is an example of unconstitutional abortion laws being struck down. So this person can appeal at the level of court he finds himself in, there is no new standard required. Unconstitutional means UNCONSTITUTIONAL i.e. that law is un-enforcable as it is illegal with respect to the principles upon which the nation was founded..

Selective enforcement to keep bad law is common with gun laws. Oh, and defending one's rights with a pen means nothing if there isn't a gun to back it up. Kind of like speaking softly but carrying a big stick.

You should try reading the part where I say whilst I support the right for people to carry arms, I'm pointing out the way you go about it makes out as if you think it is the first resort instead of the last. You should try reading and writing to politicians before you consider shooting up the place. Freedom of speech and association is another right I support and think is important. If you didn't have that you wouldn't be able to defend any other right, including gun rights.

Re:"misdemeanor amount of marijuana" yielded this?

[Calydor]

Some Judge felt they had enough evidence to issue the warrant.

"Oh, Billy-Joe is such a good cop, he always gets all those bad guys. Lessee, stamp here, here, and HERE. Time for lunch."

Re:"misdemeanor amount of marijuana" yielded this?

[Calydor]

Last year I got a new Samsung A5. Turned it on, activated it with the enclosed PIN, all fine and good.

Five months later I had to do a reboot on it because something or other had crashed completely, can't remember why exactly. As it started up it asked for the PIN. I had used that four digit number ONCE five months ago. If I hadn't been such a hoarder and still had the box in a drawer I would've been in trouble.

If those phones have managed to power down and are asking for those PINs when starting up it is entirely reasonable to have forgotten the numbers.

Re:"misdemeanor amount of marijuana" yielded this?

[Archangel Michael]

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).

Re:"misdemeanor amount of marijuana" yielded this?

[fuzznutz]

In short, this guy is in jail for lying to the court,not for refusing to unlock his phone. I think he'd been better off making a 5th amendment claim and refusing to answer the question on advice of his attorney. That way, he'd not be in contempt for lying and have a better case to appeal.

Wrong. He is in jail for refusing to comply with an order. Do you really believe that if he said, "It's my phone and I know the password but I'm not going to unlock it for you" he would be free? The judge believes he is lying about his ability but the contempt is just because he refuses to unlock the phone.

Re:"misdemeanor amount of marijuana" yielded this?

[Pig Hogger]

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.

Heaven protect that judge’s ass (and the new one he will get) once the ACLU gets hold of that case

Re:"misdemeanor amount of marijuana" yielded this?

[Pig Hogger]

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...

Yup. A fishing expedition

Re:"misdemeanor amount of marijuana" yielded this?

[Pig Hogger]

Where are they in this story?

Not going to bat for a non-black guy

Re:"misdemeanor amount of marijuana" yielded this?

[Pig Hogger]

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).

Obviously, this judge does not give a shit about it

Re:"misdemeanor amount of marijuana" yielded this?

[Pig Hogger]

In any country with a proper rule of law, there has a be a remedy for willful non-compliance with a lawfully issued court order.

In any country with a proper rule of law, legal punishments should not be given when the allegation has not been proven.

The judge in his instance has not proven that the defendant did not forget his passcodes.

Re:"misdemeanor amount of marijuana" yielded this?

[blindseer]

Wrong again. Here is what a lawyer says about striking down unconstitutional laws at any court level.

Your lawyer agrees with me. To strike down the law in court people have to actually go to court. Imagine a person is arrested for possession of an unregistered firearm. The accused is taken in front of a state prosecutor and is given a choice, take a plea deal for a misdemeanor with $2000 and time served or, we go to court where we ask for the mandatory minimum of 3 years, which makes this a felony, and we still take your $2000. The accused can pay the fine and go home. They can go to court, the law loses, the accused pays nothing, and goes home. They can go to court, the law wins, and the accused sits in the corner for 3 years. What the most likely outcome of not taking the deal is the prosecutor drops all charges and the law is not challenged in court.

For what you say to happen the prosecutor must take the accused to court. That's not happening. People get a shakedown because paying the fines is less than paying the lawyers.

Perhaps the best way to put it is with the saying, the quickest way to kill a bad law is strict enforcement. By not enforcing the law strictly it's not getting to court where it can be struck down.

You should try reading the part where I say whilst I support the right for people to carry arms, I'm pointing out the way you go about it makes out as if you think it is the first resort instead of the last. You should try reading and writing to politicians before you consider shooting up the place.

Where did you get the idea I would condone shooting first and asking questions later?

Re:"misdemeanor amount of marijuana" yielded this?

[N1AK]

I understand the concern about people making judgements about what people know or think, and this may be a good example of this process having gone too far, however let's be realistic and not pretend that the decision about guilt in court often relies on exactly that. An example: Someone in the UK was convicted of damaging a neighbours pool. There was CCTV evidence of him being near the location but it did not cover where the damage was done. He claimed that he had gone to the location to check because he thought there was a leak. He was convicted in part because he was judged to be motivated based on previous complaints he had made about noise from the pool users. The decision could not have been made without judging 1) the likelihood of the damage to the pool being caused any other way and 2) the motivation of the defendant to cause the damage, neither of which can be proved as fact.

Re:"misdemeanor amount of marijuana" yielded this?

[gnasher719]

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...

Totally misunderstanding the situation. They asked him to unlock the phone, not to provide the password. What's on the phone would be evidence, no self incrimination. Just like the police knocking on your door with a search warrant, opening the door and letting them in is not self incrimination.

It would be self incrimination if the police didn't know for sure whether it was the person's phone, and if ownership of the phone was incriminating, and in that case unlocking the phone would be self incrimination (even if the police didn't read any messages at all, because being able to unlock proves you own the phone).

Re:"misdemeanor amount of marijuana" yielded this?

[Applehu Akbar]

At least in the case you cite there was a prior record of bad blood between the parties. There was no such record in the cellphone case.

Re:"misdemeanor amount of marijuana" yielded this?

[Rick Schumann]

Agreed, this is a gross overreach and misuse of police and judicial powers. What just cause was cited for the officer to want to search the defendant's cellphone, or his car for that matter? It was a traffic stop for fuck's sake.

Re:"misdemeanor amount of marijuana" yielded this?

[Curunir_wolf]

More alarming is what might be described as the defendant being held in "contempt of cop" (not a legal term). That refers to someone who is detained by law enforcement being further detained and subject to searches on the basis that they refused to waive their rights or perhaps just disrespected the cop. The act of refusing to waive rights leads to dubious claims of probable cause and a fishing expedition by law enforcement. That seems to be the bigger problem.

Agreed. Why is it considered okay to call for a drug dog when a suspect refuses to consent to a search? If there is probable cause, the cop doesn't need consent. If there is no probable cause, wouldn't a dog search also be an unreasonable search? It seems to me cops should need some justification, or probable cause, to call in a drug dog. If they're running a checkpoint, or the cop has a dog with him anyway, maybe that would be different. But "I don't consent to a search" should not be responded to with "Well then I'm calling for a drug dog."

Plus, we all know that cops can signal drug dogs to lie. That happens all the time. "The dog indicated there were drugs." No, the cop TOLD the dog to signal.

Apparently, SCOTUS decided this was okay in Illinois v. Caballes, in a 6-3 decision. They said that sense the dog would only indicate when there was something illegal present, that the 4th Amendment doesn't apply to them. The only out is if it takes "too long" for the cop to get the drug dog to the scene. Basically, if police can’t bring a dog to the scene in the time it takes to run your tags and write a ticket, the use of the dog becomes constitutionally suspect. A really bad decision, IMHO. Especially when it has been shown that cops often get dogs to signal falsely just to justify a search.

Beyond that, the standard the cop needs to call the drug dog in the first place is "reasonable suspicion." That's a MUCH lower standard than probable cause. If they had such a suspicion in this case, it wasn't mentioned in the article. But I have heard of cops claiming that refusal to consent to a search is enough for reasonable suspicion. IDK.

Re:"misdemeanor amount of marijuana" yielded this?

[gweihir]

That is how it works in a police-state. If you do not roll over on command (however much ridiculous), you get fucked.

Re:"misdemeanor amount of marijuana" yielded this?

[serviscope_minor]

Bullcrap. Cops use the "I smell marijuana" excuse to violate citizen rights on a daily basis.

It's double bullcrap because even if they did smell weed, then that's what the charge should be. Being guilty of one minor crime doesn't give the legal system to trawl through your entire life looking for evidence of absolutely anything they like.

Which is pretty much what a phone contains now.

Re:"misdemeanor amount of marijuana" yielded this?

[fafalone]

That still doesn't get around the fact that they're trying to require you to use the contents of your mind to assist in discovery of evidence to aid in your prosecution, something barred by the 5th Amendment. The idea that you can essentially hold someone under a life sentence if they don't remember the password to every encrypted container in their possession is so ridiculous it makes a strong case for revoking the absolute immunity judges enjoy.

Re:"misdemeanor amount of marijuana" yielded this?

[Shotgun]

Isn't there a rule about police having to tell a suspect that they have the right to remain silent?

Re:"misdemeanor amount of marijuana" yielded this?

[sheph]

He was gonna remember his password, but then he got high.

Re:"misdemeanor amount of marijuana" yielded this?

[BitterOak]

From what I understand, he didn't assert a 5th Amendment right, but rather, he claimed to have "forgotten" his password. The judge found that unlikely and so jailed him for contempt.

Re:"misdemeanor amount of marijuana" yielded this?

[MrKaos]

Wrong again. Here is what a lawyer says about striking down unconstitutional laws at any court level.

Your lawyer agrees with me. To strike down the law in court people have to actually go to court.

No again, as usual you're trying to manipulate the narrative - what you said was: To take the law to court the person must first be found guilty of the felony.

Re:"misdemeanor amount of marijuana" yielded this?

[MrKaos]

Where did you get the idea I would condone shooting first and asking questions later?

Because that's the only idea you put forward.

Re:"misdemeanor amount of marijuana" yielded this?

[gravewax]

The full story makes it sound like far less of an overreach. Montanez had no license, registration or insurance documentation and the car reeked of a cologne (likely masking agent so cop could not smell the drugs) and he had a large wad of cash on him and 2 new phones. They also found small vials of THC oil and a gun, while the weed may have been a misdemeanour the oil is a felony. With all that any reasonable person would be assuming this guy is a dealer. Obviously a lot of that left out here to make everyone think this is just another case of authorities overreaching.

Re:"misdemeanor amount of marijuana" yielded this?

[Sigma 7]

you have to tell the court that you're doing it.

That's not how the amendments are written. They're phrased similar to "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" instead of "Poeple have the right to complain in the courthouse about the security of their persons, houses, papers and effects being violated against unreasonable searches and seizures". This means the government is supposed to follow said constitution rather than each defendant having to parrot those rights over and over again.

It still doesn't change that the prosecution/judge is the one being unconstitutional. Especially with the Gideon example I provided, where the claim to the right of council was denied despite the constitution saying otherwise.

It also doesn't change the blatant disregard of the constitution, as cops simply pull someone over, claim they smell the drug de jour and do a random search - regardless of whether or not someone exercised their rights.

Just standing there and not opening your mouth - that's contempt.

US cops have either been telling people that they have the right to remain silent, or are supposed to do so. If they're instead required to not be silent, this becomes the court contradicting what the cops said, perhaps being a form of entrapment.

Re:"misdemeanor amount of marijuana" yielded this?

[antdude]

https://www.youtube.com/watch?...

Re:"misdemeanor amount of marijuana" yielded this?

[swillden]

I can see them declining to try to set precedent on a pedophile case. In general, when you want to establish precedent you want to pick as appealing a defendant as possible, to maximize your chances.

Re:"misdemeanor amount of marijuana" yielded this?

[cthulhu11]

"Florida". "Laws". Not so much.

Re:"misdemeanor amount of marijuana" yielded this?

[Agripa]

Capable of repetition, yet evading review

Akin to a warrant...

[TFlan91]

Wouldn't this be akin to a warrant for searching your house?

You can't really say "I lost my house keys"

Re:Akin to a warrant...

[misnohmer]

You wouldn't be held in contempt of court if you did, or refused to open the door, or refuse to tell the search party about a hidden hiding place.

Re:Akin to a warrant...

[Anonymous Coward]

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.

Re:Akin to a warrant...

[TFlan91]

Fair enough. Was playing devils advocate.

It sounds like they were targeting this guy. Calling in the K9 unit before the stop, getting a warrant for his phone based on a text message they saw on the lock screen to try and get "more evidence" on a "crime" he already admitted to.

As first post put it: "Sounds like butthurt cops not getting their way backed by another butthurt judge" (The judge sounds butthurt too)

Re:Akin to a warrant...

[JaredOfEuropa]

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)?

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 (Internal Revenue has wide ranging powers here). 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. IIRC the UK already has similar laws. Even though civil rights groups have pointed out that access to encrypted files has proven to be instrumental in cracking a case or securing a conviction in a tiny portion of all such cases. I.E. Not worth violating people's rights for.

Re:Akin to a warrant...

[Joce640k]

Wouldn't this be akin to a warrant for searching your house?

You can't really say "I lost my house keys"

Sure you can, but the cops will just break your door.

The same goes for your safe (if you have one): "Forgot" the combination? Out comes the big angle grinder.

The problem is that encryption works - they can't get past it by using brute force.

Re:Akin to a warrant...

[Anonymous Coward]

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.

Re:Akin to a warrant...

[Anonymous Coward]

You can't be compelled to open a safe in the US. But then again, a safe can be opened by a skillled professional.

Re:Akin to a warrant...

[misnohmer]

IANAL, but I I don't think so, though I wouldn't be surprised if there was an exception for tax evasion - US government treats tax cheating as a more serious crime than murder. About your comment to extent these things to terrorism and whatever other crimes the society deems highest priority, why not introduce this option: police can invoke the terror or child pornography exception, but if the suspect complies and there is no terrorism or child pornography evidence found, any and all evidence provided by the suspect grants the suspect full immunity for any other crimes discovered as part of that information search. So, if they suspect the suspect of terrorism and they unlock a phone for the police, if there is evidence that the suspect cheated on a billion dollars worth of taxes but the suspect if innocent of terrorism, that crime can never be prosecuted. It would give the police the tool they need, but make it impossible to use abuse that tool for non-terrorism and child-pornography cases.

Re: Akin to a warrant...

[Anonymous Coward]

While I believe your statement about probable cause on four legs, the dog did find enough of a controlled substance to arrest.

Re:Akin to a warrant...

[Bing Tsher E]

Yes, they are referred to that way by defense attorneys.

Re:Akin to a warrant...

[Antique Geekmeister]

I thought there might be related cases. There certainly have been. See https://www.documentcloud.org/... , where police were allowed to place defendants' fingers on phones or pads to unlock them..The judge basically allowed the state to gain access to existing, stored communications, and to compel the assistance of the defendant to access those communications.

Re:Akin to a warrant...

[Joce640k]

Yep. The problem is that you may have stuff in there that you don't want a bunch of cops leering over and passing copies to their buddies on Whatsapp.

Any cellphone search should at least be conducted in the presence of a lawyer and no copies of data made without good reason.

Re:Akin to a warrant...

[Daemonik]

Biometric info is considered "public", because it's not concealable. You're leaving fingerprints everywhere you go, so you can't claim exclusivity.

Re: Akin to a warrant...

[Anonymous Coward]

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.

Re:Akin to a warrant...

[bill_mcgonigle]

They can only compel you to open something locked if they can convince a judge that they have evidence proving that what they're looking for is in there. Like a cop swears that he saw you stash your pot in the safe and lock it.

The Circuit Court in Minnesota decided several years ago that the same standard applies to computers. If the cop saw kiddie porn on your screen and you shut it off they can compel you to unlock it. Though maybe you take the six months in that case.

What they're doing to this guy in Tampa is clearly unconstitutional and already illegal in that other Circuit but Florida is a different jurisdiction.

He's the kind of hero we need to survive the creeping tyranny. Hopefully ACLU will be along with better lawyers to hand this judge's ass to him.

Re:Akin to a warrant...

[sjames]

So can a phone in many cases.

Re:Akin to a warrant...

[pellik]

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.

Re:Akin to a warrant...

[chill]

This blog post explains it very nicely.

http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/

Re:Akin to a warrant...

[Aristos Mazer]

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.

Re:Akin to a warrant...

[spire3661]

The safe analogy is irrelevent. The fifth amendment applies to your head, not your safe. Its a check on the court attempting to 'read minds'

Re:Akin to a warrant...

[demonlapin]

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".

Re:Akin to a warrant...

[XXongo]

Wouldn't this be akin to a warrant for searching your house? You can't really say "I lost my house keys"

You wouldn't be held in contempt of court if you did,

Yes, you very well might.

(The situation is more like this: that they search your house, they find a safe in your house, and they ask for the key for the safe. You can't say "I won't give that to you, it would be self-incrimination."

It is an interesting interpretation of the law, by the way: they can compel you to give them the keys, but it's not clear you have to give them a combination: http://blogs.denverpost.com/cr...

Re: Akin to a warrant...

[TheCastro1689]

Watch LivePD, they do it all the time. Dog walked around the car, barely showing interest. Cop forces dog to try harder, dog acts the same way as before. "Yea the dog signaled pretty hard back there, we're going to go ahead and search." Liars.

Re:Akin to a warrant...

[bluefoxlucid]

See United States v. Hubbel 530 US 27 (2010); Doe v. United States 487 US 201 (1988); and Fisher v. United States 425 US 391 (1976). The Court cannot compel a defendant to reveal a safe combination.

Re:Akin to a warrant...

[avandesande]

It's not.

Re:Akin to a warrant...

[Wolfrider]

Yep. This sounds like a witch hunt, and the judge just farked this guy's life over by throwing him in the clink for 6 months. Hope he gets compensation.

Re:Akin to a warrant...

[BankRobberMBA]

In the United States the answer varies based on jurisdiction. Each of our 50 states have a complete set of laws, and many of them are strikingly different from each other. Many of the differences here are derived from the very different regional cultures. For instance, compare the gun laws in Connecticut (extremely tight) with Florida or Texas (very permissive).

Additionally, there is a Federal system that applies to all 50 states, but only for some issues. Problematically, the federal system is broken up into different districts, which sometimes decide similar issues differently, which is called a 'Circuit Split'. Some districts are defendant friendly (like the 9th - California and western states), some are prosecutor friendly (like the 6th - Michigan, Ohio, Kentucky, and Tennessee). When the circuits split badly enough, the Supreme Court may hear a case and render a decision that then becomes the law of the land for everybody everywhere all the time.

The issue in this case has not been settled, but there is a little precedent holding that you do not have to disclose combinations, PINs, and pass-codes. These are 'something that you know', which makes it testimony and we have lots of good precedent that you do not have to testify against yourself.

Re:Akin to a warrant...

[BankRobberMBA]

Not because it's not concealable. It's because it is 'not testimonial'.

Disclosing "things you know", like combinations, PINs, and pass-codes is considered to be testimony. Lots of precedent about forced testimony exists.

Keys, bio-metrics, DNA, maps, etc. are things that you have, or things that you are. These are not testimonial, and therefore you can be compelled to disclose them.

Re:Akin to a warrant...

[Enigma2175]

When Reagan testified during the Iran-Contra scandal he used the "I don't recall" defense like 90 times. If it's good enough for a President, it should be good enough for Joe Blow. I don't see how the court can disprove your assertion.

Re:Akin to a warrant...

[loonycyborg]

They can, they're just not advanced enough to do that yet. With direct access to hardware they could image data storage on the phone and even if it's encrypted they can bruteforce it to their heart's content. No rate limiting on password tries can apply if they work with data directly. This is smartphone equivalent of cracking a safe. Since PIN codes tend to be comparatively short bruteforce won't take too much time. Only probably there aren't too many phone "locksmiths" yet, and they can't rely on phone producer since it would be conflict of interest.

Re:Akin to a warrant...

[thewolfkin]

difference is the crowbar is nicer. Bones heal, bruises heal. But being locked up for six months can ruin your life. You can lose your job, you can lose your kids, you can lose your credit. You can lose your car. You can lose your house. You can go from being an average middle class person to abject poverty in six months. Because in six months your fiscal obligations can go from 60% of your income to 95% of your income and now you don't have that income.

Heaven forbid this dude doesn't actually know this lock codes.

Re:Akin to a warrant...

[MobyDisk]

I had to confirm that one, but you are correct. Google: 5th amendment safe combination The 5th amendment protects you from being compelled to produce a combination. So yeah, if this ever got to the Supreme court and they decided digitally-entered combinations are different, then it would be clear that the real reason behind that decision is not a matter of constitutional principle, but about the fact that they can get around it with a real safe. I betcha this will make it there eventually.

It's too bad that the Supreme court can't proactively seek out cases like this an intervene. This process where cases have to come up, be dropped, get conflicting rulings in different courts, then wait for just the right defendant -- before the matter is truly settled - seems to take too long and lead to injustice in the mean time.

Re:Akin to a warrant...

[Cederic]

Hmm, no.

Data forensics is all about searching a copy of the data, with another tamper-proof copy available so that any claim of tampering can be validated.

Searching on the phone itself opens a vector for malicious or incompetent behaviour that changes the data.

Unlock the phone, copy the data, copy the copy, search that.

Re:Akin to a warrant...

[JesseMcDonald]

US government treats tax cheating as a more serious crime than murder

Hardly surprising. From a government's point of view, spending resources on resolving murder cases is basically just a matter of maintaining good public relations; important, to be sure, but not something they're really interested in. Collecting protection money[1], on the other hand, is their entire reason for existence. Everything a government does resolves around (a) maximizing tax revenues and (b) guarding their turf against incursions from other governments, so they can keep collecting taxes.

[1] They claim to collect taxes for your benefit, but the main threat to your well-being if you decline to pay is the "protectors" themselves. This is a classic protection racket. They've just developed enough power and a good enough PR system to get away with it with minimal public opposition.

Re:Akin to a warrant...

[JesseMcDonald]

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.

This is a distinction without a difference. Producing a physical key implies admitting that you know which key opens the lock and where that key can be found. In what sense is either of these aspects not "the contents of your mind"? If they already knew where the key was they would just take it; what they want from you is information about the key, not the key itself.

In any case, rulings regarding physical keys have no bearing on electronic storage or communications, apart from the rare cases where there is some sort of physical HSM involved. Despite the whimsical name, cryptographic "keys" are really just long passcodes, which are part of the process for translating a ciphered message. Long-established precedent says that while they can seize an encoded journal, with a warrant, they can't force the author to decode it. Electronically-aided encryption is no different.

Re: Akin to a warrant...

[cellocgw]

While I believe your statement about probable cause on four legs, the dog did find enough of a controlled substance to arrest.

COrrelation is not causality.

As others already said, the dogs nearly ALWAYS indicate positive, as they know that's what their handler wants, and will reward them for. The fact that in this case there was some pot in the car is entirely coincidental.

Re:Akin to a warrant...

[Not-a-Neg]

Actually, you can be charged with obstruction of justice, just the same as if you or anyone in your home refuses to open a door when the police have a warrant.

Re:Akin to a warrant...

[rastos1]

.... the password itself isn't self incriminating.

So I have the right to remain silent only about things that are incriminating?

Brave....

[solanum]

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....

Re:Brave....

[Bing Tsher E]

Apparently, contempt.

Re: Brave....

[astrofurter]

Unfortunately it seems that utterly contemptible courts seem are the norm. Therefore I would never discriminate against a person who had been smeared with the almost-always fake crime of "contempt".

Re:Brave....

[thewolfkin]

dude being locked up for 6 months can be it's own type of record. your life can come crashing down in six months of being unable to do things like pay your bills on time and continue to go to your job.

someone should called the EFF

[Anonymous Coward]

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

Re:someone should called the EFF

[jrumney]

I think the problem here is that he didn't plead the 5th, he said he forgot.

Re:someone should called the EFF

[houghi]

That still is no reason to put somebody in jail. Seriously, what the fuck is wrong with your legal system. At this moment it feels as if you have a better chance with mob justice in the US. Sure, a few innocent people would be found guilty, but less than what is going on now.

Re:someone should called the EFF

[TheRealQuestor]

That still is no reason to put somebody in jail. Seriously, what the fuck is wrong with your legal system. At this moment it feels as if you have a better chance with mob justice in the US. Sure, a few innocent people would be found guilty, but less than what is going on now.

That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved,

https://en.wikipedia.org/wiki/Blackstone%27s_formulation

Re:someone should called the EFF

[pellik]

The courts have ruled multiple times that your password isn't protected by the 5th amendment because the password itself isn't incriminating. The 5th amendment covers safe combinations, however.

Re:someone should called the EFF

[sjames]

The 5th still applies. Interestingly, the Constitution works as if anything against it never existed. So, from the standpoint of the Constitution, the court never demanded the password and so there was no contempt.

Re:someone should called the EFF

[pellik]

Generally, the same judge that asked you to turn over the information is the one who gets to decide if the 5th amendment applies. Since they are already pissed off at you for not obeying their order they are usually not inclined to grant you your right.

Re:someone should called the EFF

[110010001000]

I love how you guys think you know what happened based on some stupid summary. You don't know what happened.

Re:someone should called the EFF

[thewolfkin]

it depends on what you mean by criminals. I think what's naive is that you assume criminals in the streets will cause a lot of damage when in fact "criminals" are people who have personal amounts of weed. People who don't have the money for bail. People who have parking tickets. The justice system is in need of serious repair. Get over it.

Re:someone should called the EFF

[thewolfkin]

that doesn't mean it doesn't happen. I think sending a 2 year old court to an immigration court to please their case on why they should not be deported back to the country where angry men want to kill them is immoral and the densest concentration of wrongness I've heard this decade and yet this has happened. Mom gets deported, child gets deported, both end up dead. Almost like they weren't crossing the border for kicks and giggles.

Re:someone should called the EFF

[b0s0z0ku]

Arresting people for possession of a harmless plant is (essentially) the modern equivalent of Victorian debtor's prisons.

Re:someone should called the EFF

[Cederic]

The odds of you being a criminal are well over 1%. To be fair they're closer to 100%

Since you're comfortable with one person going to prison falsely rather than 100 criminals walking free, we'd best imprison you.

No need for a trial, we've already established that you're more likely to be one of the 100 criminals than the innocent man.

Only in America

[Anonymous Coward]

What was it again.... "Land of the free" ?

Re:Only in America

[Opportunist]

You're free to do as we tell you. And you have the right to remain silent, so shut the fuck up!

Re:Only in America

[houghi]

Stop yelling when we hit you. You are neglegting a direct order to shut the fuck up.

Holder

[mentil]

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.

Re:Holder

[Anonymous Coward]

His rights have been upheld. He is determined to be lying to a judge in defiance of a court order. If that's not the case he can still remember the password, either one of the two on his two phones. Or they'll crack it over 6 months.

Lying won't set you free, Trumpies.

Re:Holder

[Aristos Mazer]

His name is "Holder"... we should've seen this coming.

Re:Holder

[houghi]

It is pronounced 'Hodor'.

Re:Holder

[John Marter]

Hold on, so Holder holds handheld holdout to be held?

Give me 6 lines from the most honest man...

[Opportunist]

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.

Re:Give me 6 lines from the most honest man...

[gl4ss]

well he didn't have a probable cause so he created a probable cause. he already detained him prior to the dog arriving, preventing him from leaving and going on with his day.

if he didn't have a probable cause, how did he have probable cause for forcing a wait on the dog arriving?

if the guy had a decent lawyer, they would do something about that.

best advice is to probably just move the fuck out of that city and not give them any tax dollars.

Re:Give me 6 lines from the most honest man...

[SuiteSisterMary]

I read a book called '400 Things Cops Know.' One of the things is that if a cop wants to pull over a car, they just follow it to the next stop sign. Nobody ever actually comes to a full stop for a stop sign, but legally you're supposed to. So, they pull you over for 'failure to stop at a stop sign' and go from there.

Re:Give me 6 lines from the most honest man...

[Myrrh]

I had a friend who was pulled over not for failure to stop at a stop sign, but for not waiting long enough at the stop sign "for the car to rock back on its springs." That one got tossed, but my friend got to waste time fighting it in court beforehand.

Re:Give me 6 lines from the most honest man...

[MTEK]

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.

Not necessarily a witch hunt, though. These kind of stops are very common when police have intel on someone.

Re:Give me 6 lines from the most honest man...

[Opportunist]

Then I guess more intel would be needed before pulling him over. Don't get me wrong, if you have any tangible evidence, throw the book at him. But simply fishing for clues and hoping to find something is not enough. By that logic, I can pull anyone over randomly and start searching until I find something.

And trust me, I find something incriminating in your car. If everything fails, that zip tie over there looks exactly like the one we found on a murder victim 20 years ago.

Re:Give me 6 lines from the most honest man...

[rahvin112]

They can detain you as long as it takes to write the ticket for the dog to arrive. His best bet was to challenge the detention until the dog arrived. Either the dog arrived within the few minutes it took to write a ticket or he didn't have a good lawyer. Even detaining you five minutes for a dog to arrive generally invalidates the dog's evidence.

If this ever happens to you challenge the detention for the dog to arrive if it takes longer than a few minutes. Challenge the cop on the scene and challenge it in court later. If you fail to bring it up at trial you can't bring it up on appeal.

Re:Dumbasses, you're just making it worse...

[Anonymous Coward]

If someone steals my shit, encryption is the only thing standing between them and a metric fuckton of my personal information. It has absolutely zero to do with "the corporatocracy" which isn't even a real word; the fact is that many consumers want encryption to enforce privacy rights so the companies offer it. It is no different than writing on paper in glyphs in a manufactured language; you are under no obligation to "decrypt" the papers. Encryption has been around since ancient times. This is not a new phenomenon. Also, moving into the realm of opinion and personal beliefs, I'm pretty hard classical libertarian and I think the people should be free to attemp to encrypt while the government should be free to attempt to decrypt...which is exactly where existing case law is headed and where it belongs. No one owes the government a decryption.

How is this legal?

[Errol backfiring]

, 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.

Re:How is this legal?

[110010001000]

Uh, yeah. That is what happened. The cops suspected he had drugs so brought in the drug dog. It isn't a "witch hunt". Marijunia is legal in some states here, not sure about Florida, but it is NOT legal to get high and drive around. This guy was probably high (failed to yield) and the cops likely smelled pot so brought in the dog. This is more anti-police BS. If you want to get high, go ahead. But don't drive.

Re:How is this legal?

[JaredOfEuropa]

In that case, why were they even interested in his phones?

Re:How is this legal?

[110010001000]

Maybe they think he is a drug dealer. Maybe he is a suspect in some crime. Who knows? The police got a warrant for the phone from a judge. If you don't think that they should have received the warrant, go complain to the judge. This anti-police stuff is complete BS.

Re:How is this legal?

[110010001000]

It is amazing that you know what happened from your Mom's basement. I trust the cops more than some pothead driving around while he is high.

Re:How is this legal?

[Enigma2175]

This guy was probably high (failed to yield) and the cops likely smelled pot so brought in the dog.

You don't have to imagine how the facts in the case came down, because they are documented. Nowhere did the police state they thought they smelled marijuana, and if they did they wouldn't have bothered with the dog, they would have just searched the car. Furthermore, the police have not stated they believe he was high at the time of the arrest, nor have they charged him with DUI, as they would have surely done if they had any evidence he was high. You are just making shit up to try to cloud the actual facts of this case. It's authoritarian bootlickers like you that got us into this useless drug war in the first place and rather than getting out of the situation now that it has been shown that the war has failed you just want to dig the hole deeper.

Re:How is this legal?

[fuzznutz]

A warrant grants the right to search. It does not guarantee the right to be successful in that search.

Re:How is this legal?

[ArchieBunker]

Because one had an incoming message saying oh they found it?

Re:How is this legal?

[gravewax]

Two "new" phones, drugs in car. I would suspect he is a dealer with burner phones, then refusing their search would just reinforce that. realistically if it walks like a duck, quacks like a duck and looks like a duck it probably is a fucking duck.

Re:How is this legal?

[gravewax]

4) the usual shithouse Slashdot story with only half the information.

The car reeked of what the cop suspected was a masking agent (cologne), THC oil money and a gun was also found. The guy also had no license, registration or insurance. He also wasn't charged with a misdemeanour he was charged with a felony due to the gun and oil and has a past history of marijuana arrests.

"I forgot" doesn't fly

[dnaumov]

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.

Re:"I forgot" doesn't fly

[religionofpeas]

"I forgot" is a lame excuse. He should have said "I have no recollection of that".

Re:"I forgot" doesn't fly

[Antique Geekmeister]

If the defendant has made calls from their cell phone, or sent email or pictures from it in the recent past, there will be records that _can_ be subpoenaed effectively. That would provide good grounds for saying this defendant is lying , It would also be sensible that the judge has no desire to spend the time and effort to issue additional subpoenas.

Re:"I forgot" doesn't fly

[Anonymous Coward]

so the judge is a mind reader that can tell the guy does remember ?

Re:"I forgot" doesn't fly

[SCVonSteroids]

"I don't actually know I am.. you're honor."

Re: "I forgot" doesn't fly

[Anonymous Coward]

That claim only works if you belong to a certain social class.

Re:"I forgot" doesn't fly

[dnaumov]

so the judge is a mind reader that can tell the guy does remember ?

You don't have to be a mind reader to evaluate the likelyhood of something being true or false. Courts do this every single day.

Re:"I forgot" doesn't fly

[blindseer]

They aren't looking for the phone numbers he called. They want access to his contact lists, photos, notes, websites he visited, and the highest level he reached on Candy Crush. Okay, maybe not that last one.

The point is that a phone isn't just a phone any more. It's a portable data storage device that stores the data it holds in an encrypted format by default. If they caught him with a laptop they'd be asking for the password to log in. If they caught him with an encrypted hard drive they'd want the decryption key.

In the past they might have been able to brute force the locks. Now that's not an option so they are using a variation on pipe wrench decryption.

Re:"I forgot" doesn't fly

[ScentCone]

"I forgot" is a lame excuse. He should have said "I have no recollection of that".

Or, "I've been instructed by the FBI not to comment on that, because if I did it would be even more obvious that I'm lying my ass off."

Re:"I forgot" doesn't fly

[Cederic]

None of what you're written negates or contradicts the point made by the person to whom you replied. I'm not sure you understood it.

Call records demonstrate phone use, which in turn demonstrates his ability to access the phone.

That is evidence that he could remember the passcodes at least as recently as the most recent outbound call.

Re:"I forgot" doesn't fly

[sjames]

He said he just bought the phones. He also said "I don't know the code", not "I forgot".

That doesn't sound all that implausible to me. Simply, the judge wanted him in jail, so now with no trial, no conviction, and no finding by a jury of his peers, there he sits. All based on the say-so of a single person.

That doesn't sound much like rule of law to me.

Re:"I forgot" doesn't fly

[sjames]

But that's not what he said. He said he just bought the phones and he didn't know the code.

What to do if police make you wait for a drug dog

[davide marney]

https://www.dailydot.com/layer...

Update

[lrichardson]

"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.

5th Amendment?

[jonwil]

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?

Re:5th Amendment?

[Gilgaron]

It probably does, but you can sit in a jail a long time waiting for the appeals judge to apply precedent...

Re:What about Miranda?

[gl4ss]

the dude was compelled to incriminate himself prior to any arrest happening.

the cop didn't have probable cause to search the car, so he created probable cause by holding him at the spot and asking for a k9 mj sniffer unit to come by to give them probable cause to search the car in the first place.

now you might ask if the cop didn't have probable cause to search the car, how did he have probable cause to call the sniffer dog? well clearly mj is so bad that laws don't apply.

it's a frigging fine to be given. the people in that state have decided that it's not a biggie, just a fine, not worth a warrant, not worth a hassle. but the cops have decided otherwise on their own.

Re:What about Miranda?

[Joce640k]

Yep. It just means that from now on, anything you say can be used against you in a court of law.

Asking the wrong questions.

[houghi]

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.

Mirandized?

[bill.pev]

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!

Re:Mirandized?

[PolygamousRanchKid]

I wonder if he was Mirandized properly?

Miranda has been deprecated.

It's in the Release Notes.

The use of Miranda is strongly discouraged.

A Bill of Rights...

[vikingpower]

...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.

Did anyone read the disclaimer on their license?

[blindseer]

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.

Not the same

[sjbe]

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.

Passwords protected under the 5th (currently)

[sjbe]

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?

Re:Passwords protected under the 5th (currently)

[JaredOfEuropa]

1) You can't. In case of tax issues, they will probably just fine you. And jail you. And kill your dog. I have no idea how they intend to enforce this in other cases. A judge might be able to use some forensic evidence: if a file has been recently changed or a phone recently used, then it is not unreasonable to assume that the suspect still knows the password. Not 100% but enough to press the matter with a fine or short jail time.

2) They still need a warrant, so in order to do this they need to tack on terrorism or kiddie porn to the case. It might happen in a few exceptional cases, but a judge would look closely at this. Saying: "Oh, we also think there might be some questionable porn on this machine" isn't sufficient... Even so I am against allowing this at all, mostly because it is extremely likely that the police will simply press for the law to be extended, that they need this access in order to do their jobs. And the current government will be all too happy to grant them that power.

Tax issues are not handled by the regular police, but by the dreaded FIOD ("fraud squad") who handle fiscal stuff, fraud, and cases related to copyright. Sometimes the police attempt to attach fiscal fraud to cases, like when they found a garbage bag with half a million euros in a guy's apartment and got the FIOD involved. The judge corrected them on that however, as they had zero evidence that the money was related to the case (the guy had an unlikely but not wholly impossible story to account for the money)

Re:Passwords protected under the 5th (currently)

[houghi]

reveal information you reasonably believe might be used to incriminate you

That would mean you are aware that it will incriminate you. That means you can only refuse if you are guilty. Sounds pretty stupid to me.

Re:Lying to a judge

[acoustix]

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 was my first thought as well.

Re: "misdemeanor amount of marijuana" yielded this

[Anonymous Coward]

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.

New insight

[Excelcia]

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.

Re:New insight

[demonlapin]

She was doing 87 mph in a 70 mph zone. That will get your ass hauled to jail in some states, regardless of your license. She also didn't have her passport on her. That part was kinda bullshit, as I expect that Canada will recognize my US driver's license as acceptable ID and at least let me go back to the hotel to get my passport to prove that I'm in the country legally, but I'd expect that the trip would be under police guard.

Re:New insight

[TheRealQuestor]

While personally I am against alcohol being any more legal or illegal than any other drug and do feel Marry Jane should not be a way to fill our privatized penal system [as in jail for profit] not to mention removing a stigma surrounding it's use [and abuse] plus the added benifit of HUGE tax income for the state/government [if they ever pull their collective heads out of their asses and legalize it here in the US] I am kind of at odds with jailing someone over a ticket with foreign plates, the problem here is how then do we make a reasonable assumption that the person getting the ticket will actually either pay or show up to court for said ticket if all they have to do so go home and say fuck it.

Re:New insight

[burtosis]

I myself am staunchly anti-drug. My country is, of course, in the news as legalizing recreational marijuana, something that I have personally opposed.... 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.

It's actually not uncommon in the USA for the cops to plant drugs in your car if you give them attitude or they don't like you. Not only was cannibis made illegal to discriminate against minorities, but it's used to jail them in private prisons and labor for almost no to no money. I think they used to have a word for that, s- something. A pet peeve of mine is just how highly disingenuous it is to be anti-drug and pro alcohol, very very few drugs make people lose all common sense and do stupid things that get people killed like alcohol. Not to mention the millions of people born with birth defects and the medical costs associated with it. Neither is a problem with cannibis, both are serious problems with alcohol.

Re:New insight

[Cederic]

It's a bit strange though. I did 87 in a 70 limit through roadworks in Texas and the policeman that pulled me over told me to sit there for ten minutes, then let me go with 'and behave'.

Then again I did have my passport with me and handed it to him without being asked.

Of course he'd want to see it.

Re:New insight

[demonlapin]

Well, you were lucky, but it doesn't surprise me. Texas is pretty lax about "no harm done" offenses like speeding in the boonies, especially if they run your plate and nothing suspicious shows up. I'm pretty sure there is a lot to this story that isn't apparent. E.g.: who speeds a lot when carrying drugs? Possibly planted, of course, but I once got a ticket for 22 over the limit, and the patrolman issuing my ticket didn't even think about looking in my car. Given the area and my age at the time, it would not have been a stretch to investigate me for pot or meth (of which I had none, but there was a bunch of underage booze possession in the trunk).

Re: New insight

[nitehawk214]

Texas roads ate crazy, though. I got passed by a truck doing 120 and it blew right by me. There was a cop there and he didn't even budge.

It wasn't until I reached the hotel that I realized my rental car had Canadian plates.

Lesson in this story is...

[adosch]

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...

Not clear

[XXongo]

It is not yet clear in the courts that requiring a person to unlock a phone is self incrimination. It is considered equivalent to requiring somebody to give the key to a safe in a physical search.

This has happened before, of course: https://9to5mac.com/2017/06/01...

and the case law is unclear: http://www.leadingedgelaw.com/...

Re:Not clear

[spire3661]

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.

Re:Not clear

[Anonymous Coward]

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.

Re:Not clear

[TheCastro1689]

It's more like giving the combination to a lock.

Re:Not clear

[Anonymous Coward]

No, it's crystal clear, you cannot be required to interpret evidence for the police or prosecutors. He provided them with the evidence when they seized the phone, he is not required to turn those 1s and 0s into something that's meaningful that would be a violation of the 5th amendment.

This is yet another example of judicial overreach.

Re: Not clear

[Boh00711]

I think there comes a point of reasonable suspicion when dealing with remembering passwords: were you carrying the phone with you, powered on? Then you probably remember the password. Was it sitting on a desk with a dead battery and hasn't been online in over a month? More likely you forgot the passcode as using a new phone took priority. It's like combination locks in highschool, kind of.

I would love to see video of the circumstances leading up to this arrest. If the car smelled dank, there exists probable cause. If the guy met the description of a dealer reported by several people in a neighbourhood, suspicion isn't unreasonable.

Maybe the cop and courts are all assholes, maybe not. Need some context here, bruh.

Re:Not clear

[Solandri]

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.

Re:Not clear

[Anonymous Coward]

Good fucking grief.

Re:Not clear

[jittles]

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.

Re: Not clear

[Anonymous Coward]

Stress has a way of blocking memories. Like the stress of being harassed and kidnapped by men with guns. Over a flower of all things.

Re:Not clear

[rahvin112]

That is not how the courts have decided this is. Much like many other things, what you think it "should" be is not what the court precedent says it is. The precedents on the record since the early days of the cellphone and computer make it entirely legal for the judge to do what she did.

Re: Not clear

[eneville]

If I had the points, I'd mod up as you make a lot of sense.

Re:Not clear

[jittles]

That is not how the courts have decided this is. Much like many other things, what you think it "should" be is not what the court precedent says it is. The precedents on the record since the early days of the cellphone and computer make it entirely legal for the judge to do what she did.

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.

Re:Not clear

[thegarbz]

The judge has declared himself a mind reader with no corroborating evidence to support his ruling that the defendant does indeed know the passwords.

To be fair that's a technicality. The idea that someone is carrying around a functional cell phone owned by them for which they don't know the password is stupid. However more to the point: This case shouldn't be decided on technicalities in the first place. It shouldn't ever have gotten to the point of remembering or forgetting a password.

Re:Not clear

[fafalone]

Crystal clear to anyone who's being intellectually honest about the Constitution. If courts weren't already corrupting the meaning we wouldn't even have the whole war on drugs that led to this case. But they are, so now that we've come up with a situation where once again, an obvious and clear civil right poses a significant obstacle to law enforcement, and the courts are falling all over themselves to try to weasel out of a clear prohibition on self-incrimination with absurd logic.
People should have been more careful when sanctioning rights violations because they hurt the right people. Now we're seeing again, with people just cheering on intellectually dishonest court rulings that further their goal of nullifying the 2nd Amendment, in complete denial that the kind of extreme twisting being done will one day fall on a more favored right, just as has happened with the logic weakening them in the past. The only reason a lot of people are opposing this ruling is because it was over weed; everyone was loving it when it was the pedophile cop and the revenge porn sleaze.

Re: Not clear

[jrumney]

I always unlock my phone with my fingerprint. I could easily forget the password without losing access to the phone, and if the request was specifically for the password, then it would not be contempt of court to simply state that I forgot it, without elaborating.

Re:Dumbasses, you're just making it worse...

[pellik]

But your letters didn't contain your entire correspondence history, a record of everywhere you've been, and all of the pictures you've taken for the last few years. Phone searches are akin to requesting a home search warrant.

Abuse of discretion

[Ensign_Expendable]

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.

Re:Dumbasses, you're just making it worse...

[110010001000]

Hate to break it to you: the corporations who own your phone have already "stolen your shit" and sold it to their corporate partners.

Re: "misdemeanor amount of marijuana" yielded this

[Type44Q]

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.

False positive generators and trained dogs.

[Anonymous Coward]

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.

Re:False positive generators and trained dogs.

[retchdog]

if they only generated false positives, they'dn't be much of a problem. occasionally they generate true positives; even when it would be a false positive, the cop can sweeten the scene with some of his own stash, confiscated from earlier in the day.

Re:False positive generators and trained dogs.

[Straif]

The stats for drug sniffing dogs are horrendous. Some of the top 'performing' dogs give a positive response in 90% + exams with less than 60% backed up with by the resultant searches. It's not that they can't smell the drugs but their need to please their handlers takes priority. It's almost like having a four legged polygraph; it's mostly for show and to step over the small justification hurdle. It's effectively just a tool used by police when they already think they have their suspect and any form of reliability metric is unimportant.

Bomb sniffing dogs, on the other hand, have a much higher effective result rate because their handlers are much less likely to 'signal' where they want a hit to occur. Since bomb dogs aren't generally used to justify a search and are usually brought in only after a warrant has been executed to try and safely clear a site they receive less direct guidance from their handlers to find something and just do their jobs.

Re:False positive generators and trained dogs.

[b0s0z0ku]

True positives, false positives. They're a problem, period. Jailing people over a harmless plant is idiotic.

Re:False positive generators and trained dogs.

[Shotgun]

Why does the cop even need to lead the dog around the vehicle? Isn't the dog trained? The cop should be required to stand back. Just point the dog at the car, and video tape it. No search unless the dog stands and barks at one specific spot.

Re:Did anyone read the disclaimer on their license

[blindseer]

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?

First, not Fourth Amendment issue

[Myrrh]

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.

Re:Did anyone read the disclaimer on their license

[Myrrh]

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.

Actually...

[BankRobberMBA]

... that was... pretty reasonable. Thanks.

Re:Dumbasses, you're just making it worse...

[sfcat]

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.

So that means your banking and medical records too right? Get real, you are suggesting a world without locks. Encryption has plenty of day to day real world uses. That you don't like this one, doesn't mean they don't exist and that most people use them everyday. And even in the past, letters had wax seals as a security precaution.

Re:What to do if police make you wait for a drug d

[Harald Paulsen]

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.

Drug dog

[BankRobberMBA]

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.

Two issues, despite the warrant

[raymorris]

> 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.

Re:Two issues, despite the warrant

[jittles]

> 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.

How is this any different than jailing someone who is suspected of murder until they disclose the location of the dead body? They have no way of knowing if there is evidence on the phone. They cannot force you to provide evidence against yourself. If the prosecution wants the contents of the phone, they can try to decrypt the contents of the phone just as they’re welcome to try and crack open a safe. That’s their prerogative to do if they have the resources.

Re:Two issues, despite the warrant

[DigiShaman]

They cannot force you to provide evidence against yourself. If the prosecution wants the contents of the phone, they can try to decrypt the contents of the phone just as they’re welcome to try and crack open a safe. That’s their prerogative to do if they have the resources.

IANAL, but that's my limited understanding as well. The can have the physical device, but it's up to them to extract the data. The funny thing about encrypted data, is that effectively it's an extension of your mind. It's all chain-linked to a password. Without it, the data on that phone might as well be random bits. By being forced to disclose the password, you might be incriminating yourself for what's on the phone.

At some point, we will have cybernetic implants. Undue harm aside from pulling out the wetware, no way in hell they'd be allowed to extract the encrypted data without self-incriminating. No?

Re: "misdemeanor amount of marijuana" yielded this

[Anonymous Coward]

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.

Re: "misdemeanor amount of marijuana" yielded this

[Anonymous Coward]

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

Re:Hispanics Ruining our country

[Calydor]

Yes, because he didn't yield properly he is now filling up limited prison space and costing thousands of tax payer dollars.

Let's totally blame his heritage.

Smell vs dog

[BankRobberMBA]

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.

Re:Did anyone read the disclaimer on their license

[Calydor]

"Stand and Fight" is multi-tasking.

Re:Your mindset is why bullies get power at all

[thewolfkin]

dude.. that's not how bullies work. That's not how bullies ever worked.

Probably Cause???

[SwashbucklingCowboy]

What's the probably cause to get a warrant to search his phone?

Re:What about Miranda?

[thewolfkin]

that's when you're being arrested. It doesn't work like that in the courtroom. What you say in the courtroom can't be twisted against you like what you say to police because int he courtroom you have legal representation.

Re:LOL!!!!!!

[thewolfkin]

you mean clubhouse "No Gurlz Allowed"

And Another Thing...

[SwashbucklingCowboy]

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.

double jeopardy

[BankRobberMBA]

The double jeopardy idea is interesting.

Erase upon unlock?

[ZipK]

Can any phone be set up to erase its contents upon being unlocked with an alternate code? Android, perhaps?

Re:Erase upon unlock?

[Myrrh]

Interesting idea, but how do you propose to do it without the cop going "Aha! He destroyed evidence -- we'll just charge him with that!"

Re:Erase upon unlock?

[b0s0z0ku]

Yep. Have it pretend to install an update while deleting anything of note and replacing it with a set of very innocuous pictures and text messages from an archive, which then itself gets deleted. The pictures and texts in the archive would be actual pictures and texts from the user, pre-vetted by the user -- i.e. they'd actually be plausible.

It Is Wrong

[JimSadler]

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.

Unconstitutional to hold traffic stop for drug dog

[llamahunter]

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/...

Obligatory

[brennz]

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.

Re:Duress

[Myrrh]

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.

Re:mod do3n

[Myrrh]

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?

The overreach extends well beyond his phone

[ahodgson]

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.

Re:SHOULD HAVE SIMPLY SAID "NO"!

[Myrrh]

Nope.

Politely but firmly refuse to consent to the search. All you need to say is "No, sir, I do not consent to a search of my vehicle or of my phone."

If the cops are determined to search your car, your phone, or your person anyway, that is most likely going to happen one way or another -- but your refusal to consent will likely be useful to your legal defense later.

Identify yourself, ask if you are being detained, ask for your lawyer, and say nothing else.

Time for Distress / Nuke codes.

[Mysticalfruit]

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.

Re:What to do if police make you wait for a drug d

[skovnymfe]

And then you got shot and died. Aw.

Re: "misdemeanor amount of marijuana" yielded this

[nitehawk214]

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.

Re: "misdemeanor amount of marijuana" yielded this

[nitehawk214]

Refusing a search is proof of guilt and attempting to defend one's self is a crime in and of itself.

What a country.

Re: "misdemeanor amount of marijuana" yielded this

[OhPlz]

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.

Probable cause needed either way

[raymorris]

>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.

Re:Probable cause needed either way

[jittles]

>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).

I am not saying that they have the right to search the phone without a warrant. But if they have a warrant then they can choose to spend the resources to break the encryption.

> 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.

And how do they determine what evidence I have in my possession? By executing a search warrant. But that is the extent of the law. Once they have the evidence it is up to them to interpret it. If all it does is look like random bits to them, well they can hire an expert to help them try and figure out what those random bits mean.

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.

And there is no law that says that a bank employee has to help them interpret those records. Take Al Capone’s tax evasion prosecution. If they did not have the bookkeepers testimony to show that “John Smith” or whatever alias they used for Al Capone was in fact Al Capone, they could not have compelled Al Capone to show that he was “John Smith”. The government has to take whatever evidence at face value and make their case.

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.

Yes. The warrant will allow them to search the computer to their heart’s content. The warrant cannot compel the interpretation of any evidence on that computer.

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.

But he didn’t do any of those things, did he? They got a warrant for his phone. They now have his phone. Do they have any evidence that he encrypted the device after knowing that the warrant would be issued? I would guess not. Most likely the phone was taken from him at the time of his arrest and the warrant was obtained before he ever got the phone back from the police. So, again, they are asking him to interpret the evidence against him.

>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.

Re: "misdemeanor amount of marijuana" yielded this

[saloomy]

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).

Re:Did anyone read the disclaimer on their license

[rahvin112]

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.

How a "drug dog" provides probable cause

[mysidia]

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.

Re:What to do if police make you wait for a drug d

[toejam13]

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.

Cool legal argument

[XXongo]

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.

Re:Did anyone read the disclaimer on their license

[blindseer]

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.

4th Amendment violation

[fudgefactor7]

"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.

Any lawyers in the house?

[mr_resident]

The got a search warrant for two phones over a misdemeanor amount of weed?

This could get messy

[PinkyGigglebrain]

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.

Rodriguez v. United States

[nerdonamotorcycle]

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.

If they can prove you have the body (email server)

[raymorris]

> 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.

Re:If they can prove you have the body (email serv

[jittles]

> 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.

Re:Did anyone read the disclaimer on their license

[Anonymous Coward]

It's bitztream the autism-hating, custom EpiPen-hating, Musk-hating, Qualcomm-hating, Firefox tabs-hating, Slashdot editors-hating Slashdot troll!

So

[BitztreamNotARealNam]

How's life in the hypocrite lane?

The password isn't evidence. Can't hide evidence

[raymorris]

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.

Re:"run the judge up the flagpole"

[InfiniteBlaze]

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.