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Judge Jails Defendent For Failing To Unlock Phones (fox13news.com)
devoid42 writes: In a Tampa courtroom, Judge Gregory Holder held William Montanez in contempt of court for failure to unlock a mobile device. What led to this was a frightening slippery slope that threatens our Fourth Amendment rights to the core. Montanez was stopped for failing to yield properly. After being pulled over, the officer asked to search his car; Montanez refused, so the officer held him until a drug dog was brought in to give the officer enough probable cause to search the vehicle. They found a misdemeanor amount of marijuana, which they used to arrest Montenez, but they asked to search his two cellphones, which he also refused. They were able to secure a warrant for those as well, but Montenez claimed he had forgotten his password. The result: Montanez is being held in contempt of court and is serving a six-month jail sentence.
Outrageous overreach based on the circumstances. It's not like this guywas a threat to national security. Sounds like butthurt cops not getting their way backed by a judge.
Good on him for standing up for his rights, but from a practical point of view, I wouldn't want that record hanging over me for the rest of my life (or until it expired). So I don't think I would have the guts.
Of course, he could have had something worse to hide....
Si hoc legere scis nimium eruditionis habes.
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.
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.
You're free to do as we tell you. And you have the right to remain silent, so shut the fuck up!
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Obviously Judge Holder wanted to show he held the power in that situation, so he held the defendant in contempt, leading to him being held in a cell for six months and beholding being beheld to the law despite holding onto his passwords, leading to a holding pattern to see if the appeals hold up, holding America in a state of held breath until the man's constitutional rights are upheld.
Corruption is convincing someone that the selfless ideal is the same as their selfish ideal.
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)
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.
If construction was anything like programming, an incorrectly fitted lock would bring down the entire building...
He didn't yield "properly" and didn't forfeit his rights, so a search dog was called?
In other words, they were looking hard for some kind of shit to nail to his ass.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
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.
No sig today...
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.
, so the officer held him until a drug dog was brought in to give the officer enough probable cause to search the vehicle.
In any civilized country (meaning one that adheres to the universal declaration of human rights) it is the other way around: only when you suspect someone of carrying drugs, you are allowed to call for the drug dog. This is a witch hunt.
Nae king! Nae laird! Nae yurrupiean pressedent! We willna be fooled again!
"I forgot" is a lame excuse. He should have said "I have no recollection of that".
I think the problem here is that he didn't plead the 5th, he said he forgot.
https://www.dailydot.com/layer...
"We receive as friendly that which agrees with, we resist with dislike that which opposes us" - Faraday
"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.
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.
world was created 5 seconds before this post as it is.
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.
No sig today...
This is all good and nice. What we really need to know is if he was heavier than a duck. If he floats, he is guilty, if not, he is innocent.
That is what a REAL judge would ask. I assume the outcome would still be the same.
Don't fight for your country, if your country does not fight for you.
...was what you US Americans used to have. Now all you've got left is the Bill. Also, didn't you use to have something named a Constitution. I seem to remember it wasn't perfect, but it was a lot better than whatever you've got now.
Religous speak to God. Insane are spoken to by God. When all shut up, one can finally hear Shostakovich in peace
I remember the last time I went to renew my license to drive and I was asked for my signature. Before I signed I actually stopped to read what I was signing. I don't remember the actually wording but it was a release for searching me for drugs and alcohol at any time I am stopped by police. I don't recall the penalty but I believe it was simply a revocation of my license.
I remember having to provide a signature in the past but that was only so the police had a signature on the license to compare to what was given at the time of signing a citation.
So, what happens if I refuse a search at the time the police stop me? On one hand they could show a court I signed a release allowing a search. On the other there's precedent for people revoking permission at any time.
Let's say I am stopped, I refuse a search, and now the police charge me for driving without a license because my refusal invalidated my license to drive. Does driving without a license allow for a search of my vehicle?
This came up again when I came to a random checkpoint on the interstate. I was asked by a police officer for my license and insurance, and I initially refused. The officer just repeated the demand by shouting at me. I rolled my eyes and gave in. While the officer was looking at the papers I saw a dog being lead around my truck by another officer. The officer never called anyone to verify my documents were legitimate.
When I got home I went to look up the law on these checkpoints. First thing was that by law the state patrol was required to publish where and when these checkpoints would occur in advance. I don't know if they did so but a small print notation in the back of a local newspaper would probably meet that standard. Then I saw that they were limited in what they can look for in these stops. They are health and safety, license and insurance, and captured game. Health and safety means that they can check that the brakes, lights, and indicators work, that people are wearing their seat belts, children are in proper child seats, no obstructions of view, that kind of thing. Checking for license and insurance is pretty self explanatory. Checking on captured game means that every dead critter in my vehicle must have a proper game tag, and that my hunting license is current. The dog might have been sniffing for pheasants in my truck but let's just say I doubted it. Without calling in for revoked license to drive, and that I had paid my insurance bill, they made no real attempt to verify my papers and therefore checked nothing of what they were allowed to check by law.
Oh, another thing, while I was waiting to get free to move on my way I looked around to get an idea on how big of an operation this was. The cars were packed wide and deep at this abandoned truck stop or whatever it was. There were deputies from at least three counties there, and multiple K9 units from the state patrol.
Seems to me that the police are taking their business of violating our rights very seriously.
I am armed because I am free. I am free because I am armed.
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?
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.
"A plan fiendishly clever in its intricacies"- Homer Simpson
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.
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.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
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.
A safe combination can be protected by the 5th amendment and you don't have to reveal it. The 5th amendment only doesn't extend to digital passwords because, uh, the password itself isn't self incriminating. Nevermind that the safe combination isn't self incriminating. Don't look behind the curtain.
I myself am staunchly anti-drug. My country is, of course, in the news as legalizing recreational marijuana, something that I have personally opposed. But it gives me pause when I hear stories like this. Whatever my personal thoughts on marijuana are, legalizing it simply to remove this kind of specious misuse of probable cause may not be a bad thing.
Of course, the US is quite famous for being the sort of place that will jail your ass for a parking ticket, especially if you're a foreign driver. Hell, people get jailed in the US just for driving with a foreign license. We typically don't live in fear here that police are going to grab a drug dog to sniff out your car if you refuse a search. But regardless, it is certainly something to think about, and makes me rethink some of my attitudes.
This has happened before, of course: https://9to5mac.com/2017/06/01...
and the case law is unclear: http://www.leadingedgelaw.com/...
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.
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".
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.
What would you expect me to do? When I got home I did some homework and sent a couple e-mails to some civil liberties groups I thought might be interested. I thought this was a violation of rights but the lawyers that answered my e-mail thought that there was enough precedent for what happened that it was a lawful search. I wasn't arrested so I couldn't make a case regardless. I didn't record anything, as I didn't have any such equipment with me.
Without an arrest I can't take them to court. I suspect they know this so they simply don't arrest anyone unless they find something that's a serious violation. Standard procedure is to offer a plea deal to avoid court (likely a heavy fine and no jail), and drop charges if anyone doesn't take the deal. It's a shakedown, a fundraiser, that's all. They don't want to go to court or put anyone in prison, they want money.
Again, what should I have done? Shoot the cops?
I am armed because I am free. I am free because I am armed.
> 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.
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
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.
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).
How's life in the hypocrite lane?