A 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.
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