William Montanez is used to getting stopped by the police in Tampa, Florida, for small-time traffic and marijuana violations; it’s happened more than a dozen times. When they pulled him over last June, he didn’t try to hide his pot, telling officers, “Yeah, I smoke it, there’s a joint in the center console, you gonna arrest me for that?”
They did arrest him, not only for the marijuana but also for two small bottles they believed contained THC oil — a felony — and for having a firearm while committing that felony (they found a handgun in the glove box).
Then things got testy.
As they confiscated his two iPhones, a text message popped up on the locked screen of one of them: “OMG, did they find it?”
The officers demanded his passcodes, warning him they’d get warrants to search the cellphones. Montanez suspected that police were trying to fish for evidence of illegal activity. He also didn’t want them seeing more personal things, including intimate pictures of his girlfriend.
So he refused, and was locked up on the drug and firearms charges.
Five days later, after Montanez was bailed out of jail, a deputy from the Hillsborough County Sheriff’s Office tracked him down, handed him the warrants and demanded the phone passcodes. Again, Montanez refused. Prosecutors went to a judge, who ordered him locked up again for contempt of court.
He paid a steep price, spending 44 days behind bars before the THC and gun charges were dropped, the contempt order got tossed and he pleaded guilty to a misdemeanor pot charge. And yet he regrets nothing, because he now sees his defiance as taking a stand against the abuse of his rights.
“The world should know that what they’re doing out here is crazy,” Montanez said. The police never got into his phones.
MacDailyNews Take: At the core of the issue is the U.S. Constitution:
AMENDMENT V
No person shall be… compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law..
Sometimes the law gets too cute. We shouldn’t leave common sense out of the equation. The process is the same thing. You’re getting access to someone’s most private information by forcing someone to give you the key. — Miami defense attorney David Oscar Markus, May 2016
Ultimately… the U.S. Supreme Court will likely have to weigh in on this issue. — MacDailyNews, May 4, 2017
Re: MDN take. The real issue here is the Fourth Amendment, which clearly authorizes searches pursuant to a valid warrant. If this was a diary with a key lock, the judge issuing the warrant could require the owner to surrender the key. There is divided authority on combination locks.
What if the court simply compelled the defendant to unlock the device himself, but did not require him to disclose the passcode to any representative of the state? No testimony, hence no compelled testimony. This is not a simple issue, and must take into account that unbreakable encryption was not something that the Founders could foresee, any more than they could foresee some of the crimes that encryption enables.
The diary argument may or may not be valid. It has been ruled that a person does not have to give the combination to a safe because reciting the numbers or writing them down is considered the same as being forced to testify against themself. Constitutional scholars have argued that the same hold true for a password or passcode. This is why iPhones require your passcode when restarted before accepting a fingerprint or facial recognition. If you don’t want people to get in your phone, turn it off when trouble starts.
I am on the defendant’s, not on the ever increasingly intrusive and oppressive police state’s side.
With Touch ID or Face ID, the cops could have just forced him to unlock, or tricked him into an unlock. Passcodes are still the only way to prevent police state abuse.
Actually, you can disable Face ID in an instant by holding the volume up and power button simultaneously.
Good luck doing that while in handcuffs or with a gun pointed at you, or your phone is not on your person. Ever been arrested? You don’t have time to futz with your phone.
The fact remains that even if the courts rule that law enforcement has the authority, right, etc. to unlock a device and compel manufactures to build in “back doors” to allow them to do so with a warrant, no device will be safe. The bad guys will always obtain the means. There is no evidence to support the notion that the “good guys” will always be able to protect the “back door” methods of opening a device. There is plenty of evidence that shows they can’t do it. The notion that “you must have something to hide” if you are against law enforcement having a back door is short sighted. Once the “back door” is obtained by “bad guys” they will use it to steal from honest people. So if you think you don’t have something to hide in this day and age I suggest you think again.
I wonder what was in the two small bottles?
It turned out NOT to be THC. That’s why most of the charges were dropped (including the gun charges).
Stop breaking the law!
Cops are fascists. The policy is draconian. It is also supported by the trump loving crowd here.
marijuana laws were created to control the poor.
I think the locked diary example is very interesting and had not previously considered it. Now that I have, it seems the legal scholars are perhaps creating hairs to split over an issue that is really very bald. To me, it now seems, that nobody should be compelled to do anything to assist in the search of their property. Period. So with a proper warrant, the authorities can lawfully conduct a search of one’s property and seize items as per the warrant. There isn’t much to disagree with there, right? Now for my novel thought, which is that the owner of the property being searched or seized may never be compelled to assist in any way. That is, they may never be required to provide any information whatsoever that may or may not exist in their mind or elsewhere. So no passwords, names, phone numbers, addresses or passcodes to include all biometric type codes because the owner’s intent in using those was clear. If the cops find a notebook filled with passwords, they can use it. If they can break into a physical device such as a safe by picking or cutting the lock, they can use what they find. But they should not be able to use any part of the person subject to the warrant unless and until and after that person speaks with an attorney and said information should be provided via the attorney, if the accused chooses to provide it. I am the most pro law enforcement man I know. This isn’t about law enforcement. It is about protecting our freedom. I do realize there are frequent cases in which knowing this information could save lives. That is the difficult and unfortunate truth. However, it seems this is the only clear cut place to draw this line and it needs to be drawn clearly before the courts muddle it up. Now if the cops can find a way to access your electronically stored encrypted data, then just like using bolt cutters to open a lock, they may use any method that does not involve the accused’s body or mind and if they are successful, they may use whatever they find just like they can use whatever they find in your safe after they figure out how to open it. There. Problem solved. Electronic data should be treated like everything else. Case closed. And previous decisions that have required or compelled the accused to provide information should not occur in the future. Case closed!
You closed your case twice.
But I’m with you. A person should not be compelled to actively assist in the execution of a warrant.