Judge Jails Defendant for Failing to Unlock Phones

Megalith

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A Florida man is behind bars for telling a judge he didn’t know the unlock codes for his cell phones despite being served a warrant. His attorney, Patrick Leduc, is calling the case a fishing expedition: his arrest merely regarded not properly yielding and a small amount of marijuana, yet detectives insisted they needed to know what was on his phones.

Leduc says what happened to Montanez could happen to any of us. "If they arrest you for anything -- whether it’s drugs, guns, you name it -- and an electronic device is nearby, they can get a search warrant and search it. And if you don't provide that information to search it, to unlock, because you want to keep the information private, we'll put you in jail," said Leduc.
 
i`m not American and don`t know the law there , and i`m definitely not for being lenient on criminals

but
Isn`t this against the 5th Amendment ? i mean they have his phone, they can do anything they want with it , why should he make it easier for them?
 
I'd argue like hell that this is an unconstitutional act. Look: they can drill the lock on your safe, but they cannot hold your feet to the fire until you give them the code.

Trouble is, often you're talking about unsympathetic guys. The preservation of the right is often unpalatable because of the person at issue. Encrypted harddrives with child pornographic content? Who does not want to throw that dude in jail? I mean, seriously about as reprehensible as it gets. It's hard to argue for the intangible preservation of rights when you've got a guy you'd rather punch in the throat.
 
judge should be fired and not allowed to hold any public position ever again... i mean if you want to wipe your ass with someones rights like that you have no business being in a position of power.

So the guy didn't yield in traffic and had a misdemeanor amount of weed?

This is one of the few times the guy deserves to sue for big bucks and win for getting fucked over by a crooked system.
 
i`m not American and don`t know the law there , and i`m definitely not for being lenient on criminals

but
Isn`t this against the 5th Amendment ? i mean they have his phone, they can do anything they want with it , why should he make it easier for them?

A judge can order that he provides the physical device and full access to that - provided that the authorities (police I guess in this case) have demonstrated a need to know and probable cause. Now, if it has a biometric lock, and the judge puts out the order, he would have to unlock via biometrics. If it's a passcode, he has to provide the passcode.

Cops can't just decide this on their own, it has to go before a judge and there is a burden of demonstrating probable cause the cops have to demonstrate (or at least are supposed to) before the judge will issue the warrant.

What a judge can't do, is force him to "remember" a passcode. If he forgot, he forgot, and by providing the phone to allow the authorities to crack/unlock, and by acting in a willful manner to help reset/unlock the phone with the manufacturer, he's complying to the best of his ability. But if he just flat out refuses, that is contempt and there can be penalties, including jailtime.


I didn't read all the details of this case. If the guy provided his phone and is cooperating to unlock/reset... I don't think they have grounds to do anything. He's trying to reset it via whatever method his device resets codes. If he just threw up his hands and says "I can't remember" with a smirk on his face... then I would throw him in jail until it could be brute force unlocked as well.

*edit* also, I don't think the 5th counts towards evidence. 5th says your property can't be taken by the government without compensation (which you could argue here, I suppose).. but with respect to the double jeopardy provision - 5th protects you if you are questioned and you are not obligated to answer any questions that may incriminate you, but it does not protect evidence against you (including fingerprint and DNA evidence)
 
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I have to say the judge and prosecutor are definitely on shaky ground here. Won't be surprised if there is an appeal and this is overturned.
 
i dont think that specific question of its legality has gone to scotus- there are various states that have ruled being forced to unlock a phone does not violate 5th amendment (MN in jan when unlocked via fingerprint, VA has ruled that PASSWORDS protected by 5th amendment, A military court of appeals ruled that they CAN be protected, and no one has yet ruled on facial recognition that im aware of)
scotus has ruled that a cell phone search does have to have a warrant, but the question most of the time has nothing to do with the 5th amendment, but usually the 4th.... which is did they even have a legal standing to search the device to begin with. If no, then the password issue would probably be a moot point because anything they found would be inadmissible. If yes, whats the difference between "your papers being secure" and "your electronic files which ARE equivalent to your papers" if those files are locked by technical means the same way that they would be if you had simply locked your door to your house?

its not very straightforward as to if its actually a violation or not.
 
Imo, keep nothing confidential on your phone, then they can't fuck with you. Until the day comes they are forced to realize giving a password is the same as being compelled to give information to self incriminate.
 
He had some weed and two cellphones, so I guess that's Florida speak for "probable cause" for a warrant? He probably is a dealer, but you'd figure they need some actual proof before being able to get the warrant? I wouldn't consider "misdemeanor marijuana" to be enough proof, but that's just me :)

Also is anyone else confused by this quote?
Prosecutor Tony Falcone countered, arguing the warrant is lawful. "I think it’s appropriate the court order the defendant to show cause.”
 
A blatant violation of the fifth amendment, this guy should get paid in a counter suit for damages. Judge and law enforcement are obviously overstepping here.
 
I'm in Tampa and I'm surprised that this is just now hitting the national news. Sadly it's being downplayed quite a bit here and the news isn't talking about it much.

The thing is, he was leaving a driveway when he "failed to yield properly". When the small amount of weed was discovered, he owned up to it and flat out said it was his. This whole thing is a joke. From what has been said, the initial traffic stop itself is questionable and just goes on from there. BUT, tossing him in jail, not for the weed or anything else, but for failing to unlock a phone?! That's crazy talk to me.
 
He had some weed and two cellphones, so I guess that's Florida speak for "probable cause" for a warrant? He probably is a dealer, but you'd figure they need some actual proof before being able to get the warrant? I wouldn't consider "misdemeanor marijuana" to be enough proof, but that's just me :)

Also is anyone else confused by this quote?
Prosecutor Tony Falcone countered, arguing the warrant is lawful. "I think it’s appropriate the court order the defendant to show cause.”
I'm sure if they really want to fuck the guy they could do civil asset forfeiture and keep everything on him at the time. Good luck getting that stuff back.
 
Well, they already got two cell phones and some weed, and I'm betting his car is impounded. Now they just need to seize his house :)
 
i`m not American and don`t know the law there , and i`m definitely not for being lenient on criminals

but
Isn`t this against the 5th Amendment ? i mean they have his phone, they can do anything they want with it , why should he make it easier for them?

I personally believe it is, but it is an issue as of yet unresolved. There are courts that have ruled that yes, this IS covered under the 5th amendment and you can't be forced to provide a password as that would count as testifying against yourself. However there are others, like this one, that have ruled that no it is NOT covered and just divulging a password doesn't count as testimony so you have to do it. It has not yet gone to the supreme court so there's no universally settled position on it.

Until there's a supreme court ruling, or congress makes a law clearing it up, it remains unresolved and different courts will interpret it differently.
 
This isn't a 5'th Amendment issue, previous court rulings have determined that electronic servers are to be treated the same as physical filing cabinets or safes or storage units. If the police have a valid warrant to search those you can't just say you forgot where the key was and have they throw their hands up and say "OK then our bad, we'll just go on our way!". they will take the cabinet or safe into custody and drill into its ass and crack it open, in the case of a storage unit they will just bust the lock and have at the contents. In this case due to the secure nature of the phones you just can't crack it open so they will hold him in contempt while they send the phone off to have somebody else open it up to get the contents.

But I mean really who actually forgets the pin to their phones yeah man I type that number in 50+ times a day for few years but yeah 48 hours in a holding tank and I just can't remember it any more...
 
But I mean really who actually forgets the pin to their phones yeah man I type that number in 50+ times a day for few years but yeah 48 hours in a holding tank and I just can't remember it any more...

You've never worked in IT, have you? I can totally believe someone would forget something they enter all the time because our users do it continually.The amount of times someone forgets their password that they have to use to access e-mail, times sheets, electronic purchasing,their desktop, etc is staggering.
 
You've never worked in IT, have you? I can totally believe someone would forget something they enter all the time because our users do it continually.The amount of times someone forgets their password that they have to use to access e-mail, times sheets, electronic purchasing,their desktop, etc is staggering.
In 10 years I have never met a person who forgot their 4 or 6 digit pin, and at worst I have to reset 2 passwords a week usually from people who have been on extended leave 2+ months. But then again I have password hints enforced so hey have to enter that too.

Either way I find it more believable that he doesn’t want to sign them in than I do him forgetting it.
 
This isn't a 5'th Amendment issue, previous court rulings have determined that electronic servers are to be treated the same as physical filing cabinets or safes or storage units. If the police have a valid warrant to search those you can't just say you forgot where the key was and have they throw their hands up and say "OK then our bad, we'll just go on our way!". they will take the cabinet or safe into custody and drill into its ass and crack it open, in the case of a storage unit they will just bust the lock and have at the contents. In this case due to the secure nature of the phones you just can't crack it open so they will hold him in contempt while they send the phone off to have somebody else open it up to get the contents.

But I mean really who actually forgets the pin to their phones yeah man I type that number in 50+ times a day for few years but yeah 48 hours in a holding tank and I just can't remember it any more...

well, they can , But then they will need to justify the ten of thousands of dollars, maybe hundreds of thousands, spent to break into it, plus the time required. ( ie high value intel on terrorism )
 
In 10 years I have never met a person who forgot their 4 or 6 digit pin, and at worst I have to reset 2 passwords a week usually from people who have been on extended leave 2+ months. But then again I have password hints enforced so hey have to enter that too.

Either way I find it more believable that he doesn’t want to sign them in than I do him forgetting it.

just youtube videos where a participant is urged to enter their atm pin number while under slight stress.
then you will see how easy it is for someone to forget a 6 number pin.
 
In this case due to the secure nature of the phones you just can't crack it open so they will hold him in contempt while they send the phone off to have somebody else open it up to get the contents.

How is it this guy`s problem they don`t have the proper software/hardware to crack his phone? if it was a filing cabinet like you said , they would have proper tools for the job.

Same goes for search warrant on a house , ok you bust down the door and want to search my house? go ahead i`ll be in the kitchen making coffee , oh ? you want me to tell you where i hide all my shit? go f` yourself.
 
just youtube videos where a participant is urged to enter their atm pin number while under slight stress.
then you will see how easy it is for someone to forget a 6 number pin.
I guess, we’ll he has a lot of time to relax now.
 
How is it this guy`s problem they don`t have the proper software/hardware to crack his phone? if it was a filing cabinet like you said , they would have proper tools for the job.

Same goes for search warrant on a house , ok you bust down the door and want to search my house? go ahead i`ll be in the kitchen making coffee , oh ? you want me to tell you where i hide all my shit? go f` yourself.
They do have the tools, they are just expensive and time consuming. So they will use them and while they are being used he will sit in a cell. It’s the “War on Drugs” they will throw as much money as they feel they need to to protect those Tobacco farmers and whiskey distillers.
 
I wish you had the option of two passcodes. One to unlock and a nuclear option one that wipes it clean.

But I'm sure then they would just find something else to charge you with
 
I wish you had the option of two passcodes. One to unlock and a nuclear option one that wipes it clean.

But I'm sure then they would just find something else to charge you with

The organised criminal syndicates use device management software like iCloud, GSuite and their favourite Blackberry anyway. I know of a fair number of cases where the phones started being wiped remotely whilst they were still executing the warrants.
 
Failing to yield and minor marijuana possession? This is unreasonable search and seizure, and is unreasonable invasion of privacy. This is the system abusing the citizen in ways the Constitution was designed to protect against. This judge needs to seriously think who exactly they serve.
 
judge should be fired

Fun fact, you can't fire people that aren't employees. Judges are sometimes elected (so that they can be recalled or unseated), but other times those seats are assigned for life. Another fun fact: authoritarians ("I'm in the position of power, you have to do what I say") can come from either politically "liberal" or "conservative" backgrounds. But what the judge did isn't illegal; and in the current judicial system his actions will probably go unnoticed or rewarded, so he certainly isn't going to jail.

All that aside, this case makes for really interesting reading. https://www.techdirt.com/articles/2...-phones-to-get-evidence-drug-possession.shtml
 
i`m not American and don`t know the law there , and i`m definitely not for being lenient on criminals

but
Isn`t this against the 5th Amendment ? i mean they have his phone, they can do anything they want with it , why should he make it easier for them?

That's my interpretation as well. However, the 5th amendment may only apply to what's in our own heads and what can be verbally/communicated. This is information that's on a physical device, so it's technically physical evidence?

I get you and agree logically, that the device and his recorded data is an extension of himself, and thus he's basically pleading the 5th by not unlocking the phone, but yeah... it's sorta tricky.
 
How is it this guy`s problem they don`t have the proper software/hardware to crack his phone? if it was a filing cabinet like you said , they would have proper tools for the job.

Same goes for search warrant on a house , ok you bust down the door and want to search my house? go ahead i`ll be in the kitchen making coffee , oh ? you want me to tell you where i hide all my shit? go f` yourself.
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1) I never understood why criminals were so stupid to have ANYTHING on their phones in the first place. If I were to do something illegal, the last thing I’d take with me was my phone.

2) You’d think if you HAD stuff on your phone - and you got pulled over, you’d hit the “erase all content and settings” button as soon as you saw the flashing lights. It’s like what - 3 button clicks. I suppose not the first thing on your mind if you’re a wanted man and you are getting pulled over.

3) Either way, as much as some people are despicable, the govt. really should F off with this “unlock your phone crap”. You want info - then seize the device and get to work. America is becoming a sorry excuse for a free country in the 21st century.
 
I wonder when this will finally reach the SCOTUS. Many states and the court of appeals have ruled that the 5th amendment does not apply to be forced to divulge a password. And those who still refuse are charged with contempt of court and thrown in jail until they are willing to release the password. But what if, after being in jail for a long time, they truly do forget it? Is that now a life sentence?
 
They do have the tools, they are just expensive and time consuming. So they will use them and while they are being used he will sit in a cell. It’s the “War on Drugs” they will throw as much money as they feel they need to to protect those Tobacco farmers and whiskey distillers.

I bet there's more to this story than just a handful of weed and a locked phone. This would have never gone that far for a little bit of herb.
 
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