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A Florida Man Arrested for Pot Is in Jail Until He Lets Deputies Search His Phones

Police say there’s evidence. His lawyer says it’s a fishing expedition.

MarijuanaStanimir Stoev / Dreamstime.comA Tampa, Florida, man is in jail for contempt of court because he couldn't (or wouldn't) unlock a pair of cell phones to comply with a search warrant.

The case of William Montanez, first arrested on June 21, got some attention last week when Tampa's Fox affiliate reported that a judge tossed him in jail for contempt because he couldn't remember the passcodes on two phones deputies wanted access to.

Beyond the issue of whether courts can force a person to provide the passcode to their phone, there's another issue here of why, exactly, the Hillsborough County Sheriff's Department is demanding access in the first place.

Montanez's attorney, Patrick Leduc, spoke to Reason Wednesday and provided copies of all the police reports and warrants in the case. Montanez was initially pulled over by a deputy who was monitoring his car on outdoor surveillance footage and saw him leave a gas station and drive onto the street without coming to a full stop first. This is a traffic violation in Florida.

The report doesn't indicate why the deputy was monitoring Montanez in the first place, but the deputy used the traffic violation to pull Montanez over. Then things get a little sketchy. According to the deputy's report, he requested a drug-sniffing dog to come to the scene before even approaching Montanez's vehicle.

Montanez's own behavior was a little sketchy as well. He did not have his driver's license, registration, or proof of insurance in the vehicle. The deputy also reported smelling a "strong odor of a freshly sprayed masking cologne." The drug-sniffing K9 was brought in to check the car, and the dog indicated the presence of drugs.

This led to a search where deputies found some marijuana in a plastic baggie in a hidden compartment in the car and some burnt roaches. Montanez acknowledged that the marijuana was his and for his own use. The amount of marijuana found constituted merely a misdemeanor under Florida law. The deputy also found two bottles of oil, which when field-tested, came back positive for THC. Possession of any amount of cannabis concentrate in Florida is a felony. They also found a gun the glove compartment of the car, which even if the gun is legally owned and licensed, counts as a charge of possessing a gun firearm during the commission of a felony because of those two bottles of THC oil. And they also found $1,203 in cash on Montanez. Possessing cash is not a crime, and Montanez has not been charged with any crimes in relation to having all that cash on hand.

None of this explains why police wanted to access Montanez's phones. According to the police reports, the deputy was attempting to power down Montanez's phones. While doing so, a text message popped up that said "OMG, did they find it?" The report states that the text message arrived after the traffic stop, leading the officer to believe that there was evidence on the phone. So the deputy seized the phones. He asked Montanez for the passcodes and Montanez declined. They submitted a search warrant to compel Montanez to supply the passcode and allow them to access all the content on both the phones.

But, the question remains, why? The warrant application explains the contents of the phone could provide evidentiary information related to the four charges filed against Montanez. But they already have the literal physical evidence for the charges they've filed. They've got the drugs and the gun. Montanez is not charged with anything connected to drug trafficking.

Leduc sees a deeper motive in trying to get access to Montanez's phones.

"It's basically a fishing expedition," Leduc says. "This is an intel operation. They're seeking to get into his cellphone to see what data-mining they can do."

Leduc notes that the deputy who pulled Montanez over isn't some general patrol officer. The deputy himself notes on the warrant request that he's part of a street crimes team that investigates drug and narcotics cases. In short, it's unlikely that the stop leading to the discovery of drugs was any sort of coincidence. And the desire to search Montanez's phone may be for something bigger than securing a conviction for the charges Montanez is facing.

Regardless of whether Montanez has a deeper connection to drug trafficking—he has previous arrests for marijuana possession but no felonies—Leduc doesn't believe an arrest for drug possession should logically lead to the police being permitted to search all your technology.

"There's no limiting principle here," Leduc says. "If the state's theory is correct, if you're a dude on a street corner, smoking a joint, they can demand your phone. If I enter a home, if I see marijuana, should I be able to search their laptops?"

Unfortunately for Montanez, the judge who handles first court appearances lacks the jurisdiction to quash a warrant even if he or she were inclined to and could only consider whether to hold Montanez in contempt for not complying. Judge Gregory Holder ordered Montanez to unlock the phones. Montanez said he could not remember the passcodes and was unable to do so. So Holder found Montanez to be in contempt and detained him.

Leduc has submitted an emergency petition for a hearing in order to fight the contempt order. Montanez could be held for up to six months unless he unlocks the phone or unless the court frees him. Leduc's petition challenges whether deputies established probable cause to search the phone and asks the court to declare that Montanez does not have to give up his passcodes.

Photo Credit: Stanimir Stoev / Dreamstime.com

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  • Citizen X||

    They said smoking the reefer would lead to paranoia, madness, and unreasonable treatment of fellow human beings, and they was right!

  • MatthewSlyfield||

    The paranoia & madness just affects government agents, not the person who actually smoked the reefer.

  • Chipper Morning Baculum||

    Montanez was initially pulled over by a deputy who was monitoring his car on outdoor surveillance footage and saw him leave a gas station and drive onto the street without coming to a full stop first. This is a traffic violation in Florida.

    Well, that's good to know.

  • Bubba Jones||

    This actually all seems pretty legit to me.

    It was a clean bust. And a text message came through to suggest he had information about his co-conspirators on the phone. They got a warrant.

    What more do you want?

    Yes, this should all be legal, but it isn't. The complaint is with the law, not with this example of enforcement.

  • Scarecrow Repair & Chippering||

    What conspiracy? What co-conspirators? That text could have otehr meanings in other contexts.

    Fuck off, slaver. Statists gonna state nonsense.

  • Bubba Jones||

    It could have any number of meanings. That is why you gather evidence.

    I agree that the warrant should be restricted to the specifics of this case, but the article doesn't actually address that.

  • loveconstitution1789||

    Warrants are supposed to be issued only upon probable cause via sworn affidavit and specifically describe the things to be searched and seized.

    Did you know that police often seize items that are not described in the affidavit for the warrant? As long as they are not illegal themselves, I can get those thrown out for clients very easily.

    Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  • Bubba Jones||

    This warrant appears to describe the phone, and the probable cause appears to be the text of a message received during the search.

    So, it seems likely those two elements are met.

    The debate would seem to center around unrelated crimes that are revealed during a subsequent search of the phone. Those details aren't discussed, likely because they don't yet exist.

  • loveconstitution1789||

    Sounds like his lawyer is making a good argument that this is a fishing expedition. What are these supposed 'unrelated crimes'?

    Fishing expeditions are specifically prohibited by the 4th Amendment.

    Even if fishing expeditions were allowed, forcing mind crimes are absolutely prohibited by the Constitution.

    Its like handwriting sample subpoenas. Why would anyone write as they normally do? You are being forced to potentially incriminate yourself because corrupt judges ignore the Constitution. Fuck them, ignore their desire for you to write as you would normally do. Asking for a crayon for my client is what I usually ask police for. I have never had a client complete a handwriting sample after asking that.

  • Bubba Jones||

    The Florida Court of Appeals has ruled that passcodes can be compelled by warrant.

    I always write with my left hand when I am feeling ornery.

  • loveconstitution1789||

    Luckily, the Founders made prosecutions 'hard' and made it so the Florida Court of Appeals is not the last word on what is Constitutional or not.

    My lefty handwriting looks like chickenscratch.

  • 1980-f||

    What if you really can't remember the passcode?

  • Agammamon||

    What do they have probable cause of here though?

    At most they have PC that he might have texted someone else when he was stopped that he was holding and they were doing a dog search. That's not illegal. Neither for him nor the recipient to know he was holding.

    PC means you have information that a specific crime was committed - so, what crime are they looking for? What crime does that text point to?

    *Maaaaaybe* that he was going to smoke with someone else? That's pretty flimsy (IMO - IANALEO).

  • loveconstitution1789||

    Its a minor potential crime and major constitutional violation.

    America is better than this.

  • 1980-f||

    America is what? Where were you in history classes?

  • Rossami||

    re: What more do you want?

    How about a judge that upholds the requirements for a warrant? In particular, a warrant that meets all the legal requirements including a detailed description of the evidence being sought and probable cause to believe that such evidence exists and is relevant and necessary to the investigation of a crime.

  • Bubba Jones||

    This article doesn't link the full text of the warrant, and makes a lot of assumptions about the motivations of the cop.

    I suppose the commentariat would be happier if this poor schmuck were charged with conspiracy to distribute on the basis of the text message.

  • Unemployed Armenian Tranny||

    Warrant or not, how is handing over your phone password, not "self incrimination", Constitutionally speaking?

  • Diane Reynolds (Paul.)||

    he couldn't remember the passcodes on two phones deputies wanted access to.

    Isn't there some precedent that says you can't jail someone for "forgetting their access codes" because there's no reliable way to prove they remember them?

  • Eddy||

    I would imagine the judge disbelieved him.

  • Diane Reynolds (Paul.)||

    Obviously, but that's not enough to jail someone for life if they actually forgot their pin code.

  • SQRLSY One||

    Judges are God-like Superior Beings, and they have the power to read our minds!!!

  • SQRLSY One||

    So I read about God-like, mind-reading judges all the time... Deciding whether or not our religious beliefs are "sincerely held", and whether or not we can recall our cell phone password....

    But riddle me this please:

    If the judges can mind-read and know that we know our passwords, and are just PRETENDING, TO FORGET... Then WHY can they not just read our passwords straight out of our minds?

  • Scarecrow Repair & Chippering||

    Not life. Up to six months.

  • SQRLSY One||

    That's still a very stiff punishment for forgetting your password. Innocent till proven guilty, right? HOW can a judge PROVE that you did NOT forget your password, short of torture?

  • loveconstitution1789||

    They try and sweat you out.

    Demand a speedy trial and watch the judge cave.

  • croaker||

    And the judge can bring him back and sentence him to another six months if he hasn't complied.

  • loveconstitution1789||

    Double jeopardy. You cannot be tried for the same offense twice.

    His 'offense' was not giving his passcode to police after the phone was seized.

    Its like charging someone with multiple offenses for every word of a lie when there is a continuous lie.

    There has to be a separation of events for there to be a new charge. He could possibly be charged for each phone (multiple phones IIRC).

  • Longtobefree||

    New offense every time they ask - - - - -
    3,000 strikes and you're out.

  • gphx||

    'Still in Contempt of Court'

  • mpercy||

    SCOTUS last year had a case where a man was trying to not get executed because he didn't remember committing the crime (supposedly strokes that occurred after sentencing impacted his memory).

    If that had gone the other way, wouldn't EVERY person sentenced to death claim "I don't remember that"? And why stop at preventing executions? If you can get out of being executed, why should you even have to be in prison for crimes you "can't remember committing"?

  • SQRLSY One||

    Having committed a crime and forgetting that you did it, is VASTLY different than forgetting a passcode! Having shown that I am capable of committing murder, and forgetting that I did it, makes me a likely hazard to society. My passcode has NEVER been a hazard to society!

  • John||

    The precident is that if the judge doesn't believe you and concludes that you are lying and just refusing to turn over information to the court. In theory, they can't hold you in contempt for failing to provide the information you don't have. The problem, in this case, is convincing the court you really don't have the information.

    That is kind of a red herring in this case. I find it hard to believe the guy doesn't remember the codes. The interesting and important issue here is whether the government can force him to provide them.

  • Diane Reynolds (Paul.)||

    I don't believe he forgot the codes either. But justice doesn't hinge on my gut feeling. All I'm asking is, what are the limits of his incarceration if there are no limits to the judge's gut feeling that he's lying?

  • John||

    The standard in an evidentiary hearing is the preponderance of the evidence. The fact that you own the phone I think meets the burden of proving you know the passcode. Unless you can explain why you don't, the court should conclude you know the passcode to your own phone.

  • loveconstitution1789||

    I forget the 14 million passcodes on all my electronics unless I enter them every day.

    Hows that for reasonable doubt?

  • John||

    Okay. And as is pointed out below, if there are phone records showing you using the phone every day, that excuse doesn't cut it. It is all about the facts. Is it possible not to know? Sure. But it takes a particular set of facts for that to be true.

  • SQRLSY One||

    I get way-way stressed out when Government Almighty gets on my case. When I get stressed out, I forget things. And that's the truth, I'll swear to it in court! And where, oh where, did "innocent till proven guilty" go, anyway?

  • loveconstitution1789||

    "But it takes a particular set of facts for that to be true."

    The government does not get that luxury. Its supposed to be hard for government to prosecute people.

    Using a phone every day does not change the fact that unless people enter their long passcodes everyday, they will forget the passcode sooner of later.

    How long is the password? I plead the 5th as my comments may tend to incriminate me.

    I deal with shit judges like this all the time. They think they can sweat people. They get away with most times.

    The Constitution should win and this guy should go free.

    Next time, the state should capture the suspect with his phone unlocked like they captured Ulbricht with his laptop unlocked.

  • John||

    The government does not get that luxury. Its supposed to be hard for government to prosecute people.

    No. It is not supposed to be hard. There are a set of rights that the government has to respect. Whether that makes it hard or easy for the government is immaterial.

  • loveconstitution1789||

    John, come on. You're just upset now.

    The Founders intentionally made prosecutions hard compared to what the British were doing to prosecute people or hold people indefinitely. The British loved easy prosecutions.

    "hard" or the phrase "checks and balances" add level of challenges to criminal prosecutions in the USA.

  • Longtobefree||

    He's a stoner, dude.
    He can't remember where he lives half the time. Haven't you heard a thing Jeff Session says?

  • Chipper Morning Baculum||

    That picture of marijuana makes me crave a meatball sub.

  • Citizen X||

    These euphemisms!

  • Ken Shultz||

    "They also found a gun the glove compartment of the car, which even if the gun is legally owned and licensed, counts as a charge of possessing a gun firearm during the commission of a felony because of those two bottles of THC oil."

    Is exercising freedom of speech or religion while in the presence of THC oil also a felony?

    I guess the ACLU doesn't want to take a stand for the Second Amendment, and the NRA doesn't give a shit about the war on drugs.

  • Libertymike||

    Only in a totalitarian nightmare of a society could a person's failure to have his driver's license, vehicle registration and proof of insurance be characterized as "sketchy."

  • Diane Reynolds (Paul.)||

    There are times when I take my dog for a walk and I consider not bringing my wallet with me. I always wonder what the consequences are of not having any ID. This article kind of gives me that answer.

  • John||

    Me too. But I am a respectable looking white person and thus am not subject to these sorts of rules.

  • Muzzled Woodchipper||

    I leave the house about 1/2 the time without my wallet.

  • Longtobefree||

    Stop resisting - -
    Bang!
    Bang!

    Those are the consequence..
    Welcome to the revolution.

  • Bubba Jones||

    Um, what? He was driving a car. I think it's reasonable to ask someone to have these things in that circumstance.

    Given that he is Florida Man, I think it is safe to assume that he is sketchy.

  • loveconstitution1789||

    'Sketchy' still not invalidate Constitutional protections.

  • Bubba Jones||

    "Sketchy" is Shackford's term. I don't think it was used to get the warrant.

  • BillyG||

    I'd agree with you if he was out on his own, but he was driving his vehicle. It's rare someone doesn't have all of those three while driving their own vehicle. Vehicle Registration and Proof of Insurance are supposed to always be in the car.

  • Diane Reynolds (Paul.)||

    Where has Florida Man been lately?

  • John||

    This is an easy question. If the police have a valid warrant, meaning they have probable cause to believe the phone contains evidence of a crime and a judge has signed off on a warrant saying so, then the guy has to give them his password just like he would have to give them the keys to his house if they had a warrant for that.

    The only way to say that he doesn't is to declare giving someone a password to be testimonial in nature and thus covered by the 5th Amendment's right against self-incrimination. I think is taking too literal of an approach to the password. The password is just a high tech key. The police can seize the keys to your house if they have a warrant to search it. They can't force you to tell them where something is. But if they know where something is and have a warrant to get it, they can force you to let them into that place. Giving them the password is no different.

  • Diane Reynolds (Paul.)||

    The police can seize the keys to your house if they have a warrant to search it.

    But if you lost your keys, then the department can't force you to magic new keys out of your ass, the department merely has the "right" (for lack of a better word) to break into the property.

    If Mr. Montanez truly did forget his pin codes, then the only recourse is for the department to hack into the phones.

    It's no different if I have a safe. If I forget the combination, then the judge can't force me to rot in jail indefinitely while I try to remember the combination.

  • John||

    No they cannot. If, however, you hid the keys and the court concludes that you are lying when you say you lost them, it can hold you in contempt. This guy claims he somehow forgot the passcode. The court doesn't believe him. I don't blame the court for that.

    The government should have to establish that it is in fact the person's phone. Once they have done that, then I think the court has a right to assume the person knows the passcode to it. If the person can make a showing why they don't, then the court shouldn't force them. But absent a good reason, the court should assume you know the passcode to your own phone.

  • loveconstitution1789||

    But absent a good reason, the court should assume you know the passcode to your own phone.

    Burden of proof beyond a reasonable doubt, John.

    This guy's lawyer should convince his client to demand a speedy trial on contempt and if he is convicted, serve his less than a year sentence. After that, it would be double jeopardy to charge him with contempt for not remembering the passcodes to his phones.

    These mind-crimes have got to stop. A reasonable person cannot assume that everyone remembers their long password without using the password for long periods of time.

    This is BS tyranny for a fishing expedition. The cops cannot even articulate what is exactly on the phones that is evidence.

  • John||

    Burden of proof beyond a reasonable doubt, John.

    For guilt or innocence. That is not what we are talking about here. The standard of proof in a hearing on the admissibility of evidence is a preponderance of the evidence.

    And you can't make a speedy trial claim when your own actions are what is delaying the trial. This guy's refusal to comply with a valid court order tolls the speedy trial clock.

  • loveconstitution1789||

    You actually can demand a speedy trial even if the judge does not like it. The 6th Amendment trumps any flaky claim that a judge has that you have to give them a passcode before a trial can start.

    They have the burden of proof and if he is being held, he can demand a speedy trial on that charge. You never have to give all the evidence against yourself before a trial can commence.

    Holding him indefinitely is literally what the Founders did not want to happen in the USA since the British did that all the time.

  • John||

    You can demand all you like. But the speedy trial clock doesn't always move. If the defendant is the one causing the delay by unlawful actions, the speedy trial clock tolls. If it didn't, every defendant could just disrupt their trial such that it couldn't proceed and then wait for the clock to run out.

  • loveconstitution1789||

    Then why have a speedy trial demand, if some judge cannot get pissed because his buddies in the police force cannot 'find' some unknown evidence against you on your cell phones?

    I get a speedy trial for my clients every time. The demand is underused if you ask me. You shift some clients around and go to trial. Most of the time, the DA offers a plea because they are unable to try a bunch of speedy trials effectively.

    He's not 'disrupting' the trial. The suspect is remaining silent as he should. By holding him, the argument that his memory is fading gets better every day. I tell my clients never talk to any police. Ever.

  • John||

    Then why have a speedy trial demand, if some judge cannot get pissed because his buddies in the police force cannot 'find' some unknown evidence against you on your cell phones?

    You are confusing issues here. If there is no reason to believe there is evidence on the cell phone, than the warrant is invalid. That may or may not be true in this case but that is a separate issue from whether this guy has to turn over the passcode. If the warrant is valid and this guy is delaying the process by being in contempt of court, he can't claim a speedy trial violation nor should he be able to claim such.

  • loveconstitution1789||

    I am combining issues because this case is so weak that you can shotgun it with multiple arguments that should easily defeat it.

    The defendant can demand a speedy trial and appeal the trial court's decision that the trial be held up until he complies. I would ask the appellate court to immediate review the decision as the speedy trial period for that state should continue to run. If its 60 days and the appellate court reverses the trial court after the 60 days, then release the defendant.

    The judge, DA, and police dont like the reality so they are trying to violate the Constitution. I see it all the time. I just dont tolerate it. It seems like this guys attorney is fighting somewhat.

  • ducksalad||

    Maybe things are different in Florida, but I thought cases like this (pressuring someone who is holding out., or appears to be holding out) were civil contempt, and there is no trial on that. However, they can only keep it up until it is clear it won't work, typically 6 months or so but I imagine that varies by state.

    On the 60 day thing, can't the prosecution request a continuance or something like that, if they can show they are likely to get more evidence?

    Not that we agree with any of it, but that was my impression for how it works most places.

  • loveconstitution1789||

    If you are being held in jail, then you are entitled to a criminal trial.

    Civil contempt is a BS fantasy made up by courts to get around giving defendants jury trials and all the Due Process that that entails. Its like traffic tickets in many states not allowing for a jury trial.

    In Georgia, you can take a speeding ticket to jury trial.

    In Georgia, if you fail to pay your child support, you can have a trial for contempt of court.

  • ducksalad||

    OK, you're talking about what his options ought to be if civil libertarians were running the country.

    I'm talking about what he can realistically do, and the options are to give in, wait it out, or try to convince the judge he really did forget.

  • kcuch||

    How you recommend defending this specific case is immaterial to the question here of how do we go from defending oneself from the drug war against citizens to eliminating the ability of the State to become involve in its citizens affairs over their relationships with a plant.

  • Ska||

    A reasonable person cannot assume that everyone remembers their long password without using the password for long periods of time.

    Phone bills showing hundreds (and for some, thousands) of calls and text messages would be evidence that "I forgot my password" is a load of horse shit. Especially if this guy was texting someone that day or when he got pulled over - which is how the story reads if that statement about "OMG did they find it?" is true.

  • loveconstitution1789||

    Your making mind-crime assumptions that have no business in our criminal justice system.

  • Bubba Jones||

    He should give them an incorrect code each time and eventually the phone will wipe itself.

    Oops.

  • John||

    If going down for obstruction of justice is less of a sentence than whatever they find on that phone will get you, that is probably not a bad move.

  • Bubba Jones||

    Lying to the FBI...

  • loveconstitution1789||

    Not giving a passcode is not obstruction of justice.

    There is no lying. There is no covering up of evidence, as the state cannot make a reasonable claim that there is even evidence on the phone. The defendants has the best argument around: I cannot remember and the longer you keep me in jail, the lower the probability that I could remember the passcode anyways.

  • John||

    We are talking about giving them the wrong passcode for the specific purpose of causing the phone to lock and wipe its memory. That is destroying evidence and obstruction of justice.

  • loveconstitution1789||

    John is right on that one. Never lie to police as they can use it against you.

    It is better to claim that you cannot remember. The state has a 100% impossible task of proving otherwise. The state knows this which is why they bullying and violate the Constitution to win.

    The law is not on the side of the state that you must remember your passcode.

  • My Dog Bites Better Than Yours||

    I don't even see this as a difficult case. The guy is exercising his Fifth Amendment right to STFU.

  • John||

    In taking the other side of this issue, Libertarians are doing grave damage to their arguments for the legality of encryption. The government argument against encryption is that it prevents them from getting things. The answer to that argument is that the government doesn't have a right to get most things and therefore that is a feature, not a bug. If, however, it is the case that even when the government gets a warrant, the subject is not required to give the passcode for the encryption, then encryption means the government can't get information that it has a lawful right to see and has probable cause to believe is evidence of a crime. Denying the right of the government to force people to give up their passcode to enforce a valid search warrant means making encryption a shield against even the most valid criminal investigation and makes all of the government's horror stories about encryption much more valid.

  • Citizen X||

    Technically, government has powers. Government does not have rights.

  • John||

    True. Forgive my lack of precision there.

  • Diane Reynolds (Paul.)||

    I thought the 2nd amendment gave the government the right to bear arms against alt-right anti-trans tax dodgers and racist nazi trump voters.

  • Longtobefree||

    No.
    The second amendment of the US Constitution does not give anyone the right to keep and bear arms. It reads like it does, but if you look around, it clearly does not.
    The guns give the government the right to do whatever the hell it wants.

    And this guy is just a peaceful doper, none of those things you said.

  • fabius||

    They have a warrant to search the phone. They have possession of the phone and can search it all they want. A warrant can't compel a suspect to help law enforcement make sense of what they find.

    Also, I don't know what nonsense the courts might have come up with to justify it if it really is the case that a warrant can compel you to hand over your keys, but I don't think that is the case, and if it is, it's blatantly unconstitutional. You only have to hand over your keys if you don't want the police to smash up your door. They can smash up the phone all they want, I suppose.

  • loveconstitution1789||

    The cops dont like that and the corrupt judges who side with police dont like it either.

    If the phone is the key piece of evidence, they probably have no case without it. The state hacks hate losing criminal cases.

  • John||

    If the phone is the key piece of evidence, they probably have no case without it. The state hacks hate losing criminal cases.

    If the guy is guilty, you should hate losing criminal cases too. Do you just object to all forms of law enforcement? If not, why do you think the government losing a case against a guilty person is a good thing or blame the government for seeing it as a bad thing?

  • loveconstitution1789||

    I would never be a prosecutor.

    If I was forced by a judge to be a solicitor pro tempore, I would never, I repeat never, violate my moral code to get a conviction.

    Its like the dipshit cops and prosecutors who push murder cases before you have as strong a case as you can get. With murder, you have no statute of limitations. If your try the case and lose, you can never get another shot at that defendant for that crime. Dont rush.

    Same thing here. Let this guy go and get a warrant to tap his phone or whatever. A criminal will always mess up again in the future.

  • John||

    You are an idiot. There are a lot of people out there who are real criminals and deserve to go to jail. The fact that we have too many laws and put people in jail for the wrong reasons doesn't change that.

  • loveconstitution1789||

    You're an idiot non-Libertarian John. Based on what you said, we see why.

    The Constitution allows for any person to never say a word when confronted by police. Nothing when addressed by the court. Nothing during trial and still be found Not Guilty by a jury.

    The judge in this case is wrong just like the appellate courts are wrong. Read their jurisprudence jujitsu and its self-evident that they are trying to skirt Constitutional protections.

  • ||

    There are a lot of people out there who are real criminals and deserve to go to jail.

    Not if it means abridging their rights to do it. This is what it means to have principles: to accept that real criminals have the exact same rights the rest of you do.

    Whoops, I mean the rest of us.

  • loveconstitution1789||

    This is a minor crime and a major violation of this guy's constitutional rights to jury trial, speedy trial, right to remain silent, etc.

  • John||

    Why is handing over the keys unconstitutional? They have a warrant. Giving the keys is not testimonial. The 5th Amendment says you can't be compelled to testify against yourself. it doesn't mean you can never be compelled to turn evidence of any kind over to the government.

    Beyond that, what privacy or liberty interest is being served here? Do you deny the legitimacy of warrants? If so, then that is a bigger question than this. If not, then the government has the warrant and the right to search the phone and to see its contents. What purpose is served by saying you don't have to give them the passcode other than thwarting a legitimate use of government power? Understand, the government has probable cause. They have a legal right to see the information. There is a difference between defending the rights of citizens and just mindlessly supporting anything that makes it harder to prosecute crimes. And it is the second that you are doing here.

  • fabius||

    Because all a warrant does is give legal authority to search. It's does not give legal authority to compel anyone to assist in that search. They can search all they want. If they don't know how to find what they are looking for, that does not then mean that they can force someone to help them.

  • John||

    Because all a warrant does is give legal authority to search. It's does not give legal authority to compel anyone to assist in that search.

    Yes it does. Again, the 5th Amendment only says you don't have to testify. It doesn't say you can never be compelled to turn over evidence. And the 4th Amendment gives the government the power to search and to seize. They have probable cause to believe there is evidence in the safe in your house. That gives them the power to search its contents. Since getting into the safe is necessary, the 4th Amendment also gives them the power to seize the keys to the safe in order to search it. Forcing you to give the passcode is no different.

  • Bubba Jones||

    From what I have googled, Florida is the only state to compel passcodes. Federal courts have generally ruled that passcodes are protected speech, as opposed to finger prints which can be compelled.

  • John||

    You are right. I disagree with the federal courts on this. And I think Libertarians should to because if this is going to be the rule, you can kiss encryption goodbye. No way is the public going to allow encryption that prevents the government from getting it even if it has a warrant. And that is all this does.

  • loveconstitution1789||

    There is already encryption that the government cannot reasonably break for purposed outside national security.

    A passcode at 10 digits would keep the government busy for as long as 10^10 combinations takes, not including lock out after "x" number of incorrect tries.

  • Agammamon||

    I think you're wrong there. At least right now, the public is very much *for* encryption without ways for the government to break in to. Yes, even in terrorism cases.

    Its the government screaming about how they can't - and no one seems to want to listen to them.

  • loveconstitution1789||

    John, the 5th Amendment says that No person (not just a defendant) shall be compelled in any criminal case to be a witness against himself.... The courts have said this is testifying but clearly its about providing any information that an interrogator would want from you.

    Torture was the preferred British method of obtaining confessions and other information to be used against you and others.

    Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor 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; nor shall private property be taken for public use, without just compensation.

    Giving passcodes is talking. Giving fingerprints is not the same thing. Refusing to talk to police is protected under the US Constitution, so being forced to say what your passcode is would be the same thing.

  • croaker||

    Cops typically don't care about keys. They also don't care about getting the right address.

  • Agammamon||

    Since the government's privilege to 'get things' seems to be completely self-granted - good.

    Frankly, IMO, a warrant should give the government the privilege to get a thing - but never put an obligation on someone else (especially the accused) to *help them get it* (or get it for them).

    One day, long ago, we might have given the police the benefit of the doubt that whatever they sought was important to solving a real crime. Not today. Today its mostly for evidence to bust people for consensual acts that a politically powerful minority wish to stop people from doing.

    So screw 'em. If they want it, they can go get it themselves. 'Going Dark' wouldn't be an issue if 90% of the shit they're looking for is stuff that libertarians don't think should be illegal in the first place.

  • Longtobefree||

    "and particularly describing the place to be searched, and the persons or things to be seized."

    The problem here is that the warrant does not describe the things to be seized. They would need to specify exactly they are looking for on the phone in a bit more detail than "something more to burn the little bastard with", or "we need to flip him on his buddies".

  • geo1113||

  • loveconstitution1789||

    The guy should say "I have been in jail so long that I forgot my passwords".

    He should also say that he demands a speedy trial and bail as required by the 6th and 8th Amendments.

  • Bubba Jones||

    iOS 11 has a 'cop button' to temporarily disable Touch ID

    http://www.theverge.com/2017/8.....vices-lock

  • TrickyVic (old school)||

    ""he couldn't remember the passcodes on two phones deputies wanted access to.""

    I don't recall. Works for politicians.

  • Bubba Jones||

    So... does this apply outside of Florida? I find a Florida precedent for forcing passcodes, but nothing outside Florida. Quite the opposite.

    And has the Florida precedent been appealed to SCOTUS?

  • Billy Bones||

    I am at work and cannot read through all comments, so this may have been brought up already. I am not a lawyer and do not know all the ins and outs, but when I read about this yesterday, my first thought was Fifth Amendment. I cannot be compelled to testify against myself. Forcing me to unlock my phone is compelling me to provide evidence against me. Yes, they have a warrant and have the right search the phone, if they can get in to it. But you cannot force me give you that access. If police have a warrant for your home, they don't stand outside asking you to unlock the door. They bust it open. Same principles apply here, IMHO.

  • John||

    The law is behind the technology. You are right, about the cops and the house. But consider a safe with a special key. I have the key and the police have a warrant to search my safe. They can absolutely seize the key from me. I think the people saying the passcode is testimonial and covered by the 5th Amendment are focusing too much on the method of locking up the information rather than the underlying issue. The point of the 5th Amendment is that you can't force me to testify against myself. It doesn't mean you can't take things of mine and use them against me. A passcode is just a high tech key. The fact that I have to say it or punch it in doesn't change the nature of what it is. For that reason I think a passcode is different than say you forcing me to tell you where I hide the murder weapon.

  • DaveSs||

    They have the phone (the safe) in their possession, so they have the evidence in their possession.

    The fact that in its present form the contents are unreadable (inside a locked container) is their problem.

    The suspect is not stopping them from try to decrypt (force the lock)

  • loveconstitution1789||

    Another example that the problem that the government hates is if a message is written in an unrecognizable language. They cannot force you to translate it.

    A warrant only allows for the government to try and acquire the evidence listed. If they have a message that they dont understand, too fucking bad for the government.

  • loveconstitution1789||

    The courts want to make verbally giving your passcode the same as giving a fingerprint or DNA.

    Encryption is the great check against government tyranny. It can also thwart subpoena powers but that is worth the risk.

    There is nothing in the Constitution that compels persons to have to speak to police, the courts, or bureaucrats. Ever.

    You can technically go silent from the second you are confronted by police all the way through charging and through trial. The Constitution was designed that you can say nothing and be found Not Guilty by a jury.

  • Longtobefree||

    You can also say nothing and be found guilty by a jury.

  • DaveSs||

    Right.
    The point is, you don't have to be an accessory to your own conviction.

  • Hank Phillips||

    According to the Suprema Corte in Sullivan v. U.S. (1927), the political State can force you to sign a confession (a "return"), and use that to slam you into a cage like a Mexican child. Before that 1927 usurpation, bootlegging provided seed capital for stock brokerage accounts yielding tax-free dividends. This was the nation's pension plan before christianofascism ushered in Herbert Hoover and his appointee Harry Anslinger to convert prosperity into the Great Depression. The communist manifesto income tax return is the very essence of the sanction of the victim and self-incrimination.

  • Longtobefree||

    So why don't these evil druggies use an app that responds to a duress code and wipes the phone and associated backups/cloud storage?
    If i ever decide to supplement my social security with a little side business, I will start by wiping my cell phone, tablet, and current computer, and burning them. And no, not with a cloth.

  • ThomasD||

    "even if the gun is legally owned and licensed, "

    Not aware of any licensing requirement for a gun in Florida.

    And, in the glove box is legally considered 'securely encased' so no concealed carry permit is required.

  • kcuch||

    the crux of this biscuit (is the apostrophe) is that the gun is guilty of keeping company with THC extract. Had they lived their lives separately, the gun could go free.

  • Rockabilly||

    Lots of commies in the USA trying to take our stash.

  • Hank Phillips||

    So Florida--haven of beer and liquor smugglers back when Prohibition Party coercion replaced choice and a free economy--still runs the same old protection, bribery and asset forfeiture rackets. What a surprise!

  • John C. Randolph||

    I think there's a business opportunity for a service that will simply wipe your phone if you don't log in often enough. If you keep backups, the inconvenience is minor.

    -jcr

  • Longtobefree||

    The backups better not be held by a third party, or in the cloud.

  • Art Gecko||

    "The report doesn't indicate why the deputy was monitoring Montanez in the first place..."

    Sounds like "parallel construction" to me. Illegal evidence used as a pretense for finding "legal" evidence, when the entire investigation is fruit of the poisonous tree, and would be thrown out if known.

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