Man To Spend 180 Days In Jail For Turning Over Non-Working Password

from the inadvertently-building-up-time-served-credit dept

Mon, Jun 19th 2017 3:12am — Tim Cushing

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.

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Filed Under: 4th amendment, 5th amendment, christopher wheeler, encryption, forced revelation, locked phones, password, wesley victor

57 Comments

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Anonymous Coward, 19 Jun 2017 @ 3:23am

180 days is shorter than indefinitely.
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Anonymous Coward, 19 Jun 2017 @ 3:33am

ah, florida.
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That One Guy (profile), 19 Jun 2017 @ 3:37am

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.
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Anonymous Coward, 19 Jun 2017 @ 3:57am

Conspiracy theory
>All that can be said for certain is prosecutors still don't have an unlocked phone.

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.
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Daydream, 19 Jun 2017 @ 4:06am

Hypothetical question:
You are a prosecutor investigating an accusation of child abuse.
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?
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Annonymouse, 19 Jun 2017 @ 4:15am

In states you are guilty untill the judge says so.
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Michael, 19 Jun 2017 @ 5:24am

Re: Hypothetical question:
Put another way...

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?
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Anonymous Coward, 19 Jun 2017 @ 6:01am

Re:
Yup. This is the state where the legislature and governor have been trying for more than six years to outlaw free speech in a doctor's office.

I would not put it past them to find 180 days in this case extremely lenient.
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David, 19 Jun 2017 @ 6:27am

Re: Hypothetical question:
I think much depends on how likely I'd guess that I could use evidence obtained additionally for decreasing the likelihood of further suffering from victims, either from this suspect or other actors.

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.
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Anonymous Coward, 19 Jun 2017 @ 6:30am

Re: Hypothetical question:
If you have a strong case then of course you prosecute. Jailing someone indefinitely when you have enough to prosecute is a spiteful perversion of justice. Even suspected child molesters deserve their day in court and due process. Once they're convicted, you can punish them accordingly. Welcome to the American legal system.
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Anonymous Coward, 19 Jun 2017 @ 6:42am

Re: Re:
I have difficulty remembering some passwords after 2 months. They expect someone to remember a password after 6? Some passwords, if used for years unchanged, maybe.

Aren't "change your password after 3 months" polices great?
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Anonymous Coward, 19 Jun 2017 @ 6:53am

Re:
This is exactly what it has become. The InJustice system is not even pretending that is seeks justice. I just grinds a dagger in your back while telling you that you should not have fucked up and we would not be here fucking with you if you did not deserve it.

"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.
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Ninja (profile), 19 Jun 2017 @ 6:57am

You shouldn't be compelled to give anything to law enforcement. If they want they can try to break in, blow the safe, break encryption or whatever but if they cannot produce enough evidence without forcing you to give anything, be it keys to a house, combination of a safe or a password then they don't have a case against you. Feel free to try to break in but it's your fucking job to produce evidence to justify a conviction.

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.
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Anonymous Coward, 19 Jun 2017 @ 7:41am

Re:
I don't see how they can force you to self incriminate. Break in if you can, but what's in your mind should be your own.

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.
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JoeCool (profile), 19 Jun 2017 @ 7:43am

Re:

Not that I have any sympathy for the guy if they have enough evidence to prove the guy is some molester or whatever.

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.
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Anonymous Coward, 19 Jun 2017 @ 7:49am

not condoning anything bad that adults do to children but the USA is turning more and more, quicker and quicker into a Police State, where nothing is as important than the government, whether itself or one of the various bodies, such as in this case, the prosecutors, getting their way and throwing the Constitution out the window! not much point in having it anymore because the government, which is supposed to uphold it, is the one throwing it away!! it appears there is nothing that wont be done just to win a case against an ordinary person, regardless of the charge(s) or whether the crime has been committed. totally different story, however, when the government is brought to task on the various wrongdoings it is constantly doing!!
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Rekrul, 19 Jun 2017 @ 8:02am

I've never understood how "contempt of court" is in any way constitutional. "I don't like your attitude, so I'm going to throw you in jail indefinitely until you comply."
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Anonymous Coward, 19 Jun 2017 @ 8:08am

Re: Re:
I don't think that is worst they have done.
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Anonymous Coward, 19 Jun 2017 @ 8:11am

Re: Re: Hypothetical question:
Well, obviously you send him to gitmo for his well deserved waterboarding and subsequent confession. The hell with investigating and looking for evidence as that is way too costly.
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Anonymous Coward, 19 Jun 2017 @ 8:12am

Re: Re: Hypothetical question:
I think you give the justice system too much credit.
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Anonymous Coward, 19 Jun 2017 @ 8:14am

Re: Re:
"Everyone here supports the Destruction of the Constitution for their own political purposes"

Bullshit. Care to back your assertion?
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Anonymous Coward, 19 Jun 2017 @ 8:19am

Re:
Whether it is getting worse or has always been that way depends, I suppose, upon your status in society. The poor probably view it as pretty much being the same while the lower portion of the middle class may see it as becoming worse. And of course the uber riche see everyone else as a bunch of crooks wanting to steal their shit.
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Anonymous Coward, 19 Jun 2017 @ 8:21am

Re:
contempt of cop is even worse

you can beat the charge but you can't beat the ride
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David (profile), 19 Jun 2017 @ 8:27am

Wrong premise
The whole argument against allowing encryption assumes that the government is the only one you don't want to have your data. I don't want competing companies getting hold of work related information. I don't want anyone having access to my credit card information unless I specifically give it to them. The list of people I want to legitimately prevent from having my data includes most of the world.
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BJC (profile), 19 Jun 2017 @ 8:44am

Re: Contempt of Court
An answer you'll find unsatisfying is that it was part of the inherent power of courts at the time the Constitution was written, and Article III just says "the judicial power of the United States," not "the judicial powers to [X, Y, and Z]," unlike the limited enumerated powers of Congress in Article I, so the only limitations on traditional English judicial power circa 1789 are those spelled out in the Bill of Rights or established by federal law.

For example, contempt does require Due Process.
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Chuck, 19 Jun 2017 @ 8:44am

Obvious Question
What happens if/when this guy gets acquitted of the actual child abuse charge?

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.
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BJC (profile), 19 Jun 2017 @ 8:54am

Re: Obvious Question
Maximum time for contempt is jurisdiction-specific. My brief Googling on the subject says that Florida has no statutory limits; only procedural ones as contempt is an issue wholly defined by the courts themselves.

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.
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Anonymous Coward, 19 Jun 2017 @ 8:57am

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.
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stderric (profile), 19 Jun 2017 @ 10:07am

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.
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Ryunosuke (profile), 19 Jun 2017 @ 10:09am

was his password "fourwordsalluppercase"?
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Anonymous Coward, 19 Jun 2017 @ 10:10am

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.
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Anonymous Coward, 19 Jun 2017 @ 10:14am

Pie-in-the-sky bye-and-bye
Christopher Wheeler, 41, is going to jail for six months…

… and Broward County Circuit Judge Michael Rothschild is damned to eternal hell.
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stderric (profile), 19 Jun 2017 @ 10:14am

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...
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Anonymous Coward, 19 Jun 2017 @ 10:19am

Re: Re: Hypothetical question:
Considering all suspects are considered innocent until proven guilty still applies, I'll leave it for you to decide.
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Anonymous Coward, 19 Jun 2017 @ 10:20am

Re: Re: Re:
He is clearly insane and assumes everyone else is as crazy as he is. He has no basis for the assertion, he is unhinged and everything he sees is evidence. The rest of us just see reality, he sees a conspiracy.
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Anonymous Coward, 19 Jun 2017 @ 10:26am

Re: Pie-in-the-sky bye-and-bye
Nope, he is just going to have civil rights violations charges brought against him once the man is released from jail. You can't decide someone is guilty without it being proven in court first. This man has to be treated like he is innocent until it is proven otherwise. This is not how the court system is supposed to work, if it were, the judge would be executed first and tried afterward in the follow up trial.
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stderric (profile), 19 Jun 2017 @ 10:34am

Somewhere in there, Wheeler made the amateur's mistake of answering "no" when he should have answered "not wittingly."
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Michael, 19 Jun 2017 @ 10:59am

Re: Re: Re: Hypothetical question:
We should just execute suspects. It would save tons of time and I am pretty sure only a few people would really get killed in error.

It's a small price to pay for the security of our country.
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Aludra, 19 Jun 2017 @ 12:13pm

Re: Obvious Question
Florida is a "common law" state. That basically means that judges can make up law as they go. Therefore, they are legal gods and no order they issue is "very illegal".
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Jonscot (profile), 19 Jun 2017 @ 12:15pm

I'm surprised nobody has mentioned the judge in decision. Judge Michael Rothschild. From my understanding there was no reason to believe the defendent lied. This is an unconstitutional ruling. Judge Like this should not be re-election.
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Anonymous Coward, 19 Jun 2017 @ 12:15pm

Re: Re: Pie-in-the-sky bye-and-bye

Nope, he is just going to have civil rights violations charges brought against him once the man is released from jail.

Nope, the judge has immunity.
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Anonymous Coward, 19 Jun 2017 @ 12:22pm

"the only explanation is that Wheeler lied"
Except it isn't. This is an assumption the judge is making, and a poor one at that. I see no way such an assumption could be made in good faith. Mis-remembering a password is simply a form of forgetting it that happens to many, many people everyday. So this judge may just be imprisoning a man for forgetting a password.
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Anonymous Coward, 19 Jun 2017 @ 12:27pm

So what is wrong with "oh, that didn't work? I must have forgotten it then"
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Jonscot (profile), 19 Jun 2017 @ 12:31pm

My girlfriend forgot her passcode last wee see though I changed it. She had to reset her device.
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Ninja (profile), 19 Jun 2017 @ 12:32pm

Re: Re:
Agreed. That's why I used the IF.
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Anonymous Coward, 19 Jun 2017 @ 12:36pm

Re: Re: Re: Pie-in-the-sky bye-and-bye

Nope, the judge has immunity.

Earthly immunity.
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Jonscot (profile), 19 Jun 2017 @ 12:37pm

Yes looks like the judge Michael Rothschild is imprisoning an innocent man. Also the device could have reset. My phone reset after three failed attempt.
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BJC (profile), 19 Jun 2017 @ 12:38pm

Re: Re: Obvious Question
That's not a good definition of "common law."

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.
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dr evil, 19 Jun 2017 @ 12:54pm

so cool
that as a cop, I can take the valid passcode, open the phone, plant some evidence, close the phone and prosecute
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
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Aludra, 19 Jun 2017 @ 1:04pm

Re: Re: Re: Obvious Question

That's not a good definition of "common law."

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.
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BJC (profile), 19 Jun 2017 @ 1:42pm

Re: Re: Re: Re: Obvious Question
Your definition of "common law" is true for basically every system of law that has judges.

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.
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Chuck, 19 Jun 2017 @ 1:54pm

Re: Re: Obvious Question
Well, it's good to know that, as crazy as the law is here in Alabama sometimes, it's still almost always much stupider in Florida.

(I'm a paralegal in Alabama.)
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Aludra, 19 Jun 2017 @ 2:19pm

Re: Re: Re: Re: Re: Obvious Question

Your definition of "common law" is true for basically every system of law that has judges.

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.
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Anonymous Coward, 19 Jun 2017 @ 7:19pm

Re: Re: Re: Re: Hypothetical question:
Given the accuracy of 2$ drug tests... the results would not be pretty to say the least.
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Zem, 19 Jun 2017 @ 7:28pm

And what if the password was correct and they entered it incorrectly 3 times locking the phone for good? Or the phone was already locked from previous attempts to guess the password?
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PaulT (profile), 20 Jun 2017 @ 3:07am

Re: "the only explanation is that Wheeler lied"
Indeed. Just off the top of my head, I can think of at least a few possible explanations:

- 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.
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Anonymous Coward, 21 Jun 2017 @ 12:27pm

Fact: everyone forgets passwords.
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