Fifth Amendment

Florida Man Jailed 180 Days for Not Giving Police His iPhone Password

He gave them a password, but police say it doesn't work.


Ninja M/flickr via

Yesterday a circuit court judge in Broward County, Florida, sent 41-year-old Christopher Wheeler to jail for 180 days because he wouldn't give police his iPhone password. Wheeler, who is charged with aggravated child abuse, insisted that he did give them his password. But the cops say the password he provided doesn't work, and that Wheeler therefore hasn't complied with their request. This, the judge decided, put him in contempt of court.

Meanwhile, another Florida circuit court judge—this one in Miami-Dade County—issued a rather different ruling in the case of a couple accused of extorting a social media celebrity over a sex tape. They would not be held in contempt of court for failing to share a phone's password, the judge decided, because there's no way to prove that they couldn't remember their password.

These are just the latest episodes in a broader debate about how Fifth Amendment rights apply to a relatively new technology. Do passwords count as "testimonial evidence," where protections against self-incrimination apply? Or is it more like a field sobriety test or a DNA swab?

Police in both cases were following a precedent set in Sarasota County last year, when the sheriff's department wanted to compel a man accused of video voyeurism to give them his iPhone passcode. A trial judge had ruled that this would violate the alleged voyeur's Fifth Amendment rights, declaring that the man could not be forced to surrender "the contents of his mind." But a state appeals court rejected that reasoning, citing the 1988 Supreme Court decision Doe vs. U.S. That case centered around whether the feds could force a suspect to sign consent forms permitting foreign banks to produce any account records that he may have. In Doe, the justices ruled that the government did have that power, since the forms did not require the defendant to confirm or deny the presence of the records. The Florida court decided that the iPhone case was analogous: The password to the phone and the contents of the phone were separate subjects.

The Sarasota case is now headed to the Florida Supreme Court. Wheeler is appealing his case too, and is expected to be allowed to post bond.

NEXT: 'Operation Big Bad John' Used 75 Cops, Six Federal Agencies to Catch 13 Sex Buyers

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  1. Can’t these lazy-ass pigs just get the information from NSA??

  2. Donut powder causes fat fingers.

  3. Change your password to “gofuckyourself”

    1. They need a dead man’s switch password system. It lets you in, but security-wipes whatever directories you choose.

      1. Then you become guilty of destroying evidence.

        1. But you’re not the one who entered the password.

          1. “obstruction of justice”

        2. Then you become guilty of destroying evidence.

          How would they know the evidence was destroyed if it’s not there when they look inside?

        3. Who’s to say those directories ever existed?

          Is how I would respond, but this case suggests all that matters is the suspicion that you’re lying, they can still punish you for obstruction.

  4. Per Miranda Rights, you have the right to remain silent.

    1. Sounds like the court is extending that right for 180 days.

      1. lol ouch.

        And DNA swaps and field sobriety tests are blatantly illegal but…staters got to state.

  5. “I don’t remember.”

    “A lie?”

    “A choice.”

    ::Forcible Vulcan mind meld because FYTW::

    1. You beat me to it. And yes, Spock mind raped her.

    2. Actually change it to the string “I don’t remember”, and become Abbot to their Costello…

  6. They would not be held in contempt of court for failing to share a phone’s password, the judge decided, because there’s no way to prove that they couldn’t remember their password.

    Ok, that’s an interesting viewpoint and one that, under some circumstances would be absolutely true.

    1. I don’t see how one could ever prove that “I don’t remember” is a lie, at least in the moment that it is uttered.

      I always figured that’s the best way to answer when you’ll get in trouble for lying and don’t want to tell the truth. Even if you sort of remember and want to tell the truth, it’s probably the smart response, since, as Martha Stewart found out, lying to a federal agent about anything gets you prison time.

      1. I don’t see how one could ever prove that “I don’t remember” is a lie, at least in the moment that it is uttered.

        You can’t. Although I’m sure some lawyerly people could say that there are systems for determining reasonableness, witness accounts etc where the court could reasonably determine you lied.

  7. Do passwords count as “testimonial evidence,” where protections against self-incrimination apply? Or is it more like a field sobriety test or a DNA swab?

    Why not treat them like the combination to a safe? Can a judge force you produce a safe combination even if you say you don’t remember? It’s not your fault if the police can’t crack the safe on their own, right?

  8. It seems to be that with a warrant, the cops are allowed to come in your home and rummage through your file cabinet, even if you lock the door and the cabinet.

    I don’t see why this is different.

    1. Can they force you to produce a key to said file cabinet? What if you lost the key and they can’t figure out how to force the cabinet open? Can they jail you for losing the key?

      1. They can jail you for shredding the documents at the wrong time. This seems analogous.

        1. I agree it is analogous, but intent is important. They still can’t constitutionally punish you for being incapable of doing something they want you to do. It all comes down to whether you are willfully blocking access or not. But they have to prove that you are doing it willfully and how do you prove that someone is lying about forgetting a password? People forget passwords all the time.

          1. so, what happens when he gives them 6 different passwords and his phone erases itself?

            1. Then you get charged with destroyed evidence or obstruction of justice. You have an obligation to not destroy the evidence, but they can’t force you to help them read it.

        2. They can jail you for shredding the documents at the wrong time. This seems analogous.

          It’s not remotely analogous. Shredding documents makes the information disappear. Refusing to give up a password doesn’t make information disappear.

          The Fifth Amendment means you can say something like, “I do not wish to answer any questions and I do not consent to any searches”, both parts of which assertion mean you aren’t about to voluntarily give information that can be used against you.

          The judge is completely wrong about the meaning of the Fifth.

    2. Also, what if all the documents in the file cabinet are encrypted. Can they jail you for claiming you forgot the cipher?

    3. I mean yes, I see why it is operationally different in that individuals have the technical ability to thwart the government, but it isn’t a constitutional difference.

      1. I agree there isn’t really a constitutional difference. But I don’t see how they can punish you for forgetting a password or losing a key. In either the physical or digital case I think such punishment would be unconstitutional. Of course it would be a different story if they could prove that you willfully destroyed the key after learning of the investigation.

    4. Absolutely right. If I am arrested for a crime, and my iPhone is considered evidence, they can take it and do whatever they want with it (in terms of the investigation). If they can hack it, so be it. If not, the Miranda warning clearly stated that I have the right to remain silent. My permission to search the phone is immaterial (assuming a warrant or probable cause). But, who says I have to assist?

      1. I think recent precedent is that they can force you to put your thumb on the phone, but they can’t force you to speak the digits.

        That seems like a ridiculous distinction, whichever side you are on.

        I have a better idea. If you have child porn on your phone, set up a dead man switch as suggested elsewhere so that the phone wipes itself if you don’t put in the code. That might fall under routine disposal of files rather than willful destruction of evidence.

        Just be sure you didn’t back up the evidence onto iCloud.

      2. Yeah, I think this is the right answer. If they have a warrant, they can do whatever they want with your phone, etc. but can’t compel you to speak or otherwise divulge potentially incriminating information.

        1. Ah, but they can compel you to testify when they have given you immunity.

          What happens when they promise not to use those 4-6 digits in a court of law? I think it should be relevant that the code itself is not evidence.

    5. Did they have a warrant to obtain the contents of his phone? Or did they just ask menacingly?

  9. in the case Doe vs US cited in the article, this was one of the footnotes as a response to the dissent by Jones:

    We do not disagree with the dissent that “[t]he expression of the contents of an individual’s mind” is testimonial communication for purposes of the Fifth Amendment. Post at 487 U. S. 220, n. 1. We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like “be[ing] forced to surrender a key to a strongbox containing incriminating documents,” than it is like “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.” Post at 487 U. S. 219.

    Wouldn’t that therefore imply that being required to give up the password to one’s iPhone IS “the expression of the contents of an individual’s mind?”

    1. The case at issue was that a person was compelled to sign documents allowing foreign banks to disclose any records they may have of Doe’s accounts. So, in SCOTUS view, this was not testimonial communication since it didn’t consist of any information from the defendant’s own mind.

      A password is OBVIOUSLY information from the defendant’s own mind and as such would seem to be completely covered by the 5th Amendment. If he was arrested for a crime, he has the right to remain silent. Period.

      And even assuming that requiring the defendant give up his password is NOT a 5th Amendment violation, how on earth could the court prove that the defendant didn’t actually forget the password?

    2. Ok, that is a ridiculous distinction that only a lawyer could appreciate. Key vs combination.

      1. One is a physical object, the other is information. They’re very different things in the real world. Consider real property vs. intellectual property.

        1. They are both a means to an end. Neither is incriminating in and of itself. Both are necessary to access self-incrimination.

          In my mind, either the papers are protected documents, or they are not. If the State can do physical harm to my property, and destroy value to access those documents, can they not simply threaten to burn down my house if I don’t comply?

          Consider that a key can be replicated by knowing the manufacturer code for the specific set of ridges and valleys. It seems a bit silly to argue that the state can force me to divulge the physical key, but not the code necessary to reproduce the key.

          Utter sophistry.

        2. Not when you can open your house door from your phone they’re not.

  10. It appears that the distinction between the cases is that police cannot prove you didn’t tell them because you couldn’t remember, but they can prove whether you didn’t remember and accidentally gave the wrong password.

    IOW, don’t talk to the police. Omission is forgivable, but a slip of the tongue is proof of malice.

  11. If the feds can force you to sign consent forms, what’s the point of the forms? They can just go to the bank and say give up the goods, FYTW.

    1. If the feds can force you to sign consent forms, what’s the point of the forms? They can just go to the bank and say give up the goods, FYTW.

      According to the article, the banks in question were overseas. Since FATCA didn’t exist in 1988, it was almost certainly much harder for federal agencies to compel foreign banks to give up the goods on US citizens.

      1. Which was sort of the point.

  12. One more reason to not have a smartphone.

    1. Compared to the plethora of reasons to have a smartphone.

    2. One more reason not to keep incriminating evidence on your smart phone.

    3. One more reason to never say anything to police. Ever!

      If you are arrested, demand to speak to an attorney and never say anything to anyone about knowing the password of a cell phone.

      If a court orders you to provide a password. Appeal the order. After all the time the police have the phone, if you are ordered to provide a password, say you forgot and nothing more.

      Let the police prove that you don’t remember your password.

  13. That precedent clearly violates the 5th amendment. Not being compelled to provide testimony that is self-incriminating should include not having to produce any evidence. Forcing someone to sign consent forms for evidence to be produced is the same as forcing them to produce it.

    They are clearly backing in to a position that they want, not following the logic of the law and drawing a conclusion. This always makes for bad law.

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