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Judge Jails Defendent For Failing To Unlock Phones (fox13news.com)

Posted by BeauHD on from the open-sesame dept.

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.

19 of 506 comments (clear)

  1. "misdemeanor amount of marijuana" yielded this? by OffTheLip · · Score: 5, Insightful

    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.

    1. Re:"misdemeanor amount of marijuana" yielded this? by Applehu+Akbar · · Score: 5, Interesting

      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.

    2. Re:"misdemeanor amount of marijuana" yielded this? by umghhh · · Score: 5, Insightful

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

    3. Re:"misdemeanor amount of marijuana" yielded this? by JaredOfEuropa · · Score: 5, Interesting

      Weird. If the constitution doesn't "count" in the lower courts, shouldn't there be ordinary laws to reflect what the constitution says on things like self-incrimination? That's certainly the case here. In fact our constitution has no standing in court, and while the senate is supposed to check if newly proposed laws do not run afoul of the constitution before approving them, their decision cannot be challenged for being unconstitutional in any court either (although this is going to be changed slightly). For that reason, many of the principles in the constitution are subsequently set forth in ordinary laws as well, so that a judge may apply them.

      --
      If construction was anything like programming, an incorrectly fitted lock would bring down the entire building...
    4. Re:"misdemeanor amount of marijuana" yielded this? by blindseer · · Score: 5, Insightful

      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.

      --
      I am armed because I am free. I am free because I am armed.
    5. Re:"misdemeanor amount of marijuana" yielded this? by jrumney · · Score: 5, Interesting

      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...

    6. Re:"misdemeanor amount of marijuana" yielded this? by Anonymous Coward · · Score: 5, Insightful

      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.

    7. Re:"misdemeanor amount of marijuana" yielded this? by InfiniteBlaze · · Score: 5, Insightful

      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.

    8. Re:"misdemeanor amount of marijuana" yielded this? by blindseer · · Score: 5, Interesting

      Here's a twist on that I'd like to ponder. The ability to deny incriminating one's spouse is widely recognized, as best I can tell. If the dealer is the guy's wife then can he still be compelled to allow the search? I'd assume they might need some proof that the search would hold such a privilege, but doing so would mean an admission of a crime before the search happened, or revealing the commission of a felony in order to prove the privilege to conceal the evidence. Are there other relationships that carry similar privileges against compelled incrimination?

      I'm thinking the grounds for initiating the search was very weak to begin with. I've read of other searches being tossed out on lesser police screw-ups than this. Maybe there's more to explain the need for a search that wasn't said in the article but this is sounding like they were fishing for something or were out to get this guy.

      --
      I am armed because I am free. I am free because I am armed.
    9. Re:"misdemeanor amount of marijuana" yielded this? by CrimsonAvenger · · Score: 5, Insightful

      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.

      --

      "I do not agree with what you say, but I will defend to the death your right to say it"
    10. Re:"misdemeanor amount of marijuana" yielded this? by burtosis · · Score: 5, Insightful

      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.

    11. Re:"misdemeanor amount of marijuana" yielded this? by BankRobberMBA · · Score: 5, Interesting

      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.

  2. Re:Akin to a warrant... by Anonymous Coward · · Score: 5, Insightful

    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.

  3. Holder by mentil · · Score: 5, Insightful

    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.
  4. Re:Akin to a warrant... by Anonymous Coward · · Score: 5, Insightful

    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.

  5. What to do if police make you wait for a drug dog by davide+marney · · Score: 5, Informative

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

    --
    "We receive as friendly that which agrees with, we resist with dislike that which opposes us" - Faraday
  6. Did anyone read the disclaimer on their license? by blindseer · · Score: 5, Interesting

    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.
  7. Not clear by XXongo · · Score: 5, Interesting
    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/...

    1. Re:Not clear by Anonymous Coward · · Score: 5, Insightful

      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.