Man To Spend 180 Days In Jail For Turning Over Non-Working Password
from the inadvertently-building-up-time-served-credit dept
The protections of the Fifth Amendment are running up against technology and often coming out on the losing end. Court rulings have been anything but consistent to this point. So far it appears password protection beats fingerprints, but not by much.
It all comes down to the individual court. Some view passwords as possibly testimonial in and of themselves, and side with defendants. Others view passwords as something standing in the way of compelled evidence production and punish holdouts with contempt of court charges.
That's what's happening to a Florida man suspected of child abuse. He claims he's given law enforcement his phone's password already, but prosecutors claim the password failed to unlock his phone. They believe his phone holds evidence of the physical abuse alleged -- a claim that seems a bit less believable than those made about child porn viewers and drug dealers.
The court, however, has sided with prosecutors.
A Hollywood man must serve 180 days in jail for refusing to give up his iPhone password to police, a Broward judge ruled Tuesday — the latest salvo in intensifying legal battles over law-enforcement access to smart phones.
Christopher Wheeler, 41, was taken into custody in a Broward Circuit Court, insisting he had already provided the pass code to police investigating him for child abuse, although the number did not work.
All that can be said for certain is prosecutors still don't have an unlocked phone. As prosecutors and this judge see it, the only explanation is that Wheeler lied. That earns him six months of jail time. Maybe Wheeler should have said he couldn't remember.
As Wheeler was jailed Tuesday, the same issue was unfolding in Miami-Dade for a man accused of extorting a social-media celebrity over stolen sex videos.
That man, Wesley Victor, and his girlfriend had been ordered by a judge to produce a pass code to phones suspected of containing text messages showing their collusion in the extortion plot.
Victor claimed he didn't remember the number. He prevailed.
This would be the same judge who determined turning over a password had no Fifth Amendment implications. However, the court found it plausible the defendant might not be able to remember the password to a phone he'd last used over ten months ago. But the ruling doesn't necessarily say the defendant is telling the truth. It only goes so far as saying it's almost impossible to prove he's lying. Given the gap between the phone's seizure and the demand for a password, it's a plausible claim.
His co-defendant made no such claim. Like Wheeler above, Victor's girlfriend handed over a password but it didn't work. The court has asked her to explain why. Given the judge's earlier Fifth Amendment determination, it's safe to assume Hencha Voigt will be facing jail time if the explanation isn't to the judge's liking.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, 5th amendment, christopher wheeler, encryption, forced revelation, locked phones, password, wesley victor
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
Assuming the judge doesn't just threaten to send him right back into a cell once the 180 days are over and they demand the password again anyway.
As far as I know there's nothing stopping the judge from tossing the accused back into a cell for months at a time until they 'remember' via contempt of court charges.
[ link to this | view in chronology ]
Re: Re:
Aren't "change your password after 3 months" polices great?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I would not put it past them to find 180 days in this case extremely lenient.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
I would not put it past them to find 180 days in this case extremely lenient.
Not our puny Earth days; 180 Florida days.
[ link to this | view in chronology ]
Conspiracy theory
Are you sure, given the extremes to which US prosecutors will go to to put a person in prison. Is that failed to unlock the phone, or failed to reveal incriminating evidence.
[ link to this | view in chronology ]
Re: Conspiracy theory
I doubt they'd do this just because they didn't find any incriminating evidence... if they did find exculpatory evidence, however...
[ link to this | view in chronology ]
Hypothetical question:
You have the suspect's phone, but the passcode he gave you to unlock it does not work.
You have other evidence that creates a very strong case against the suspect.
Do you:
a) Continue to prosecute the case using the evidence you already have, without unlocking the phone?
or b) Attempt to prosecute the suspect for failing to provide a working passcode?
And, what would be your answer if your current evidence is weak, circumstantial, and otherwise insufficient to build a case?
[ link to this | view in chronology ]
Re: Hypothetical question:
You are a prosecutor investigating an accusation of child abuse.
You have the suspect, but simply questioning him does not work.
You have other evidence that creates a very strong case against the suspect.
Do you:
a) Continue to prosecute the case using the evidence you already have, without getting the suspect to confess?
or b) Attempt to prosecute the suspect for failing to testify against themselves?
[ link to this | view in chronology ]
Re: Re: Hypothetical question:
[ link to this | view in chronology ]
Re: Re: Re: Hypothetical question:
It's a small price to pay for the security of our country.
[ link to this | view in chronology ]
Re: Re: Re: Re: Hypothetical question:
[ link to this | view in chronology ]
Re: Hypothetical question:
If all I am looking for is incriminating evidence for the sake of the ongoing investigation, I fail to see how the suspect should be unable to invoke the Fifth unless I am willing to stipulate that I have executive privilege of suspending the Constitution's provisions. And if I do think so, maybe I have the wrong job.
[ link to this | view in chronology ]
Re: Hypothetical question:
[ link to this | view in chronology ]
Re: Re: Hypothetical question:
[ link to this | view in chronology ]
Re: Hypothetical question:
Perhaps I am cynical, but this is how I see it:
You are a prosecutor investigating an accusation of child abuse. You have the suspect's phone, and the passcode he gave you works, but there is no evidence.
Do you: a) Continue to prosecute a case that you will likely lose?
or b) Keep (obviously guilty despite no evidence) dirtbag locked up for supposedly failing to provide a working passcode.
[ link to this | view in chronology ]
Re: Re: Hypothetical question:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
"The protections of the Fifth Amendment are running up against technology and often coming out on the losing end."
What did you guys expect? Everyone here supports the Destruction of the Constitution for their own political purposes. It's only natural that the government sees that you do not care and use that to it own ends.
[ link to this | view in chronology ]
Re: Re:
Bullshit. Care to back your assertion?
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
That's wither lazy law enforcement or a police state in action. Not that I have any sympathy for the guy if they have enough evidence to prove the guy is some molester or whatever.
[ link to this | view in chronology ]
Re:
I's highly unlikely there's anything on the phone having to do with this case. People have all kinds of things on there phone. It's almost a second mind of a person. People don't want others digging though it all.
The fact is, law enforcement has really become LAZY. You wonder what they did before the age of the Smart Phone.
[ link to this | view in chronology ]
Re:
That's one of the tricks they like to use - make a big stink publicly when they have someone they feel will be unsympathetic with the public, then use the resulting precedent on everyone else.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
you can beat the charge but you can't beat the ride
[ link to this | view in chronology ]
Re: Contempt of Court
For example, contempt does require Due Process.
[ link to this | view in chronology ]
Wrong premise
[ link to this | view in chronology ]
Obvious Question
I mean, the 180 days wasn't pursuant to any new charge, as far as I can tell. It also isn't 6 months for contempt of court, because (at least in Alabama) contempt of court carries a maximum penalty of 3 days, after which the person must be brought back to the courtroom for a re-hearing before they can be jailed for another 3 days, etc.
So, if it's not a new charge (and if it is, they clearly didn't give this guy a full and fair trial on said new charge), and if it's not contempt of court, then whatever procedure they're using to jail this guy for 6 months is either A) very obscure or B) very illegal.
Assuming the later, and assuming he gets acquitted, how exactly do the DA and the Judge think this ends for them? I mean, the civil rights violation case is an attorney's wet dream here, and given that they appear to have followed no existing procedure for how to detain someone, I'm pretty sure the judge MIGHT be personally liable here.
[ link to this | view in chronology ]
Re: Obvious Question
There have been federal prosecutions where a reluctant witness (not even the accused) is jailed essentially indefinitely for contempt until he/she chooses to testify.
And contempt's a separate offense from the main charge. If you're arrested for a crime you didn't commit, and you mouth off to the judge, your penalty for disrupting the courtroom doesn't get refunded because you shouldn't have been in court in the first place.
[ link to this | view in chronology ]
Re: Obvious Question
It also isn't 6 months for contempt of court, because (at least in Alabama) contempt of court carries a maximum penalty of 3 days
In Florida, criminal contempt allows for penalties of up to 1 year, and I believe that civil contempt allows up to 6 months.
[ link to this | view in chronology ]
Re: Re: Obvious Question
(I'm a paralegal in Alabama.)
[ link to this | view in chronology ]
Re: Obvious Question
[ link to this | view in chronology ]
Re: Re: Obvious Question
The U.S. (except some Louisiana courts) is a common law jurisdiction, meaning cases have precedential value. The alternative, the ex-U.K. European "civil law," in theory gives the text more value than its interpretation, but in function just means that in the absence of an on-point statute, the court can't reason from analagous principles. Whether that's good or bad is a political philosophy question.
For what it's worth, civil law jurisdictions are more likely to be socialistic bureaucracies than common law jurisdictions, so it's not like one style is more "liberating" than another.
Anyway, there are limits to the power of common law judges, but the power of judges to issue contempt sanctions to control their own courtrooms and cases is pretty significant, and has been acknowledged as such for quite some time.
[ link to this | view in chronology ]
Re: Re: Re: Obvious Question
Actually, it is. Precedence and statutes mean whatever the judges say they mean. While higher ranking judges can overrule lower ranking judges, the judiciary is still the ultimate arbiter.
[ link to this | view in chronology ]
Re: Re: Re: Re: Obvious Question
In almost any legal system, the judge determines the "meaning" of the law. It doesn't matter whether it's common or civil law, once the law gets to the judge, the judge uses his or her judgment to decide what the law covers or doesn't.
Whoever has the last word regarding "what the law is" is the "legal god" in your parlance, be it a judge or a panel of judges or a legislature or whatever. They have the power to be wrong or petty or autocratic and there is nothing but difficult-to-employ governmental process to countermand them. Whatever system you have in mind to replace "common law" is subject to the same flaw, either because the judge does the same basic things, or because whoever replaces the judge - legislature, autocrat, panel of philosophers, etc. - will have similar ability and incentives to bias the law to favor their own power.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Obvious Question
Common law systems give judges much more power to make up laws than do, say, civil systems, which also have judges. Here's a link for you, written in lay terms, that you may find interesting: https://en.wikipedia.org/wiki/Common_law
That's the last I have to say about it.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Pie-in-the-sky bye-and-bye
… and Broward County Circuit Judge Michael Rothschild is damned to eternal hell.
[ link to this | view in chronology ]
Re: Pie-in-the-sky bye-and-bye
[ link to this | view in chronology ]
Re: Re: Pie-in-the-sky bye-and-bye
Nope, the judge has immunity.
[ link to this | view in chronology ]
Re: Re: Re: Pie-in-the-sky bye-and-bye
Earthly immunity.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
"the only explanation is that Wheeler lied"
[ link to this | view in chronology ]
Re: "the only explanation is that Wheeler lied"
- The defendant gave them a password he believed was correct, but was actually one for an older phone or he got a couple of digits mixed up.
- The device has different codes for SIM card and device, and he inadvertently gave them the wrong one.
- Someone in the chain of evidence messed up and actually managed to reset the device and/or PIN, thus changing without the owner's knowledge.
- Someone in the chain of evidence screwed up, and they're examining the wrong phone.
- The password did work, but officers found there was no evidence on the phone. Realising that destroys their entire case, they lied - or even reset the password to something else - so that the guy would still face some kind of prosecution.
Now, you can argue how likely each of these scenarios is, but those possibilities exist. I can understand why a judge would be annoyed at such apparent obstruction, it's very wrong to pretend that these other possibilities exist (which largely point to a co-operative defendant being railroaded accidentally or deliberately).
I'm not saying that's the case here of course, and it's certainly possible that what we have here is a guilty man desperately trying to avoid prosecution for a much more serious crime. But, the evidence does not support the idea that this is the only possible situation.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
so cool
or I can take a valid passcode, find no evidence, relock the phone with a new passcode, and jail the perp for 'not revealing' the right passcode
you are never never never never supposed to provide the vault AND the keys to the vault to the same prosecuting body. too bad the prosecutors never see it that way
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]