Judge Jails Defendent For Failing To Unlock Phones (fox13news.com) 506
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.
"misdemeanor amount of marijuana" yielded this? (Score:5, Insightful)
Re:"misdemeanor amount of marijuana" yielded this? (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.
Re:"misdemeanor amount of marijuana" yielded this? (Score:5, Insightful)
Re: "misdemeanor amount of marijuana" yielded this (Score:3)
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. Neith
Re:"misdemeanor amount of marijuana" yielded this? (Score:5, Interesting)
Re:"misdemeanor amount of marijuana" yielded this? (Score:5, Interesting)
Re:"misdemeanor amount of marijuana" yielded this? (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.
Not clear (Score:5, Interesting)
This has happened before, of course: https://9to5mac.com/2017/06/01... [9to5mac.com]
and the case law is unclear: http://www.leadingedgelaw.com/... [leadingedgelaw.com]
Re:Not clear (Score:5, Insightful)
Re: Not clear (Score:3, Insightful)
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
Re:Not clear (Score:5, Insightful)
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 [wikipedia.org] 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 (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.
Re:"misdemeanor amount of marijuana" yielded this? (Score:4, Insightful)
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 (Score:3, Interesting)
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 anythi
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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
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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 app
Re:"misdemeanor amount of marijuana" yielded this? (Score:5, Insightful)
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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.
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Anybody can file a habeus corpus action for this guy.
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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.
Comment removed (Score:5, Insightful)
Re:"misdemeanor amount of marijuana" yielded this? (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.
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Why is one party allowed to drop charges without the other party's consent anyway?
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Re:"misdemeanor amount of marijuana" yielded this? (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.
Re:"misdemeanor amount of marijuana" yielded this? (Score:5, Interesting)
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).
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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
Re:"misdemeanor amount of marijuana" yielded this? (Score:5, Insightful)
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 (Score:2, Insightful)
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.
Re:"misdemeanor amount of marijuana" yielded this? (Score:4, Interesting)
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?
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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? (Score:4, Interesting)
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?
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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? (Score:5, Interesting)
Re:"misdemeanor amount of marijuana" yielded this? (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.
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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.
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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? (Score:5, Insightful)
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.
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"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 [wikipedia.org], or permitting random citizens to be kidnapped and dragged across s [goodreads.com]
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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.
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"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? (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.
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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.
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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.
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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.
Two issues, despite the warrant (Score:5, Insightful)
> 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:"misdemeanor amount of marijuana" yielded this? (Score:5, Insightful)
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?
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Akin to a warrant... (Score:2)
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... (Score:4, Insightful)
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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... (Score:5, Insightful)
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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.
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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 s
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Passwords protected under the 5th (currently) (Score:5, Informative)
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?
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2) They still need a warrant, so in order to do this they need to tac
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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
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So can a phone in many cases.
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I thought there might be related cases. There certainly have been. See https://www.documentcloud.org/... [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.
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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 f
Re:Akin to a warrant... (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.
Re:Akin to a warrant... (Score:5, Informative)
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... (Score:5, Interesting)
Re:Akin to a warrant... (Score:5, Insightful)
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.
Not the same (Score:2)
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 i
Re:Akin to a warrant... (Score:4, Interesting)
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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.
Brave.... (Score:3)
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....
Holder (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.
Give me 6 lines from the most honest man... (Score:5, Interesting)
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... (Score:5, Interesting)
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.
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How is this legal? (Score:4, Insightful)
, 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.
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"I forgot" doesn't fly (Score:2)
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 (Score:5, Informative)
"I forgot" is a lame excuse. He should have said "I have no recollection of that".
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"I don't actually know I am.. you're honor."
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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.
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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.
What to do if police make you wait for a drug dog (Score:5, Informative)
https://www.dailydot.com/layer... [dailydot.com]
Update (Score:4, Insightful)
"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? (Score:2)
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?
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Comment removed (Score:5, Funny)
A Bill of Rights... (Score:3)
...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? (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.
Re:Did anyone read the disclaimer on their license (Score:4, Insightful)
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?
So (Score:3)
The overreach extends well beyond his phone (Score:3)
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:Only in America (Score:5, Funny)
You're free to do as we tell you. And you have the right to remain silent, so shut the fuck up!
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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:What about Miranda? (Score:4, Insightful)
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.
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Yep. It just means that from now on, anything you say can be used against you in a court of law.
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I wonder if he was Mirandized properly?
Miranda has been deprecated.
It's in the Release Notes.
The use of Miranda is strongly discouraged.
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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.