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Judge Jails Defendent For Failing To Unlock Phones (fox13news.com)
devoid42 writes: In a Tampa courtroom, Judge Gregory Holder held William Montanez in contempt of court for failure to unlock a mobile device. What led to this was a frightening slippery slope that threatens our Fourth Amendment rights to the core. Montanez was stopped for failing to yield properly. After being pulled over, the officer asked to search his car; Montanez refused, so the officer held him until a drug dog was brought in to give the officer enough probable cause to search the vehicle. They found a misdemeanor amount of marijuana, which they used to arrest Montenez, but they asked to search his two cellphones, which he also refused. They were able to secure a warrant for those as well, but Montenez claimed he had forgotten his password. The result: Montanez is being held in contempt of court and is serving a six-month jail sentence.
Outrageous overreach based on the circumstances. It's not like this guywas a threat to national security. Sounds like butthurt cops not getting their way backed by a judge.
But you would not expect your home to be served a search warrent for a misdemeanor amount of weed in your car for a traffic stop either.
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.
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.
"I forgot" is a lame excuse. He should have said "I have no recollection of that".
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"We receive as friendly that which agrees with, we resist with dislike that which opposes us" - Faraday
This is all good and nice. What we really need to know is if he was heavier than a duck. If he floats, he is guilty, if not, he is innocent.
That is what a REAL judge would ask. I assume the outcome would still be the same.
Don't fight for your country, if your country does not fight for you.
I 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?
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.
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.
> 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.