Guy Gets Tossed In Jail For Contempt Charges Because Cops Say They Need To Unlock His Phones To Get Evidence Of Drug Possession
from the power-hungry-idiots-on-a-fishing-trip dept
There's a Fifth Amendment case developing in Tampa, Florida revolving around cellphones, passcodes, and contempt charges. (h/t Dissent Doe)
William Montanez has just been jailed for 180 by a Florida judge for refusing to unlock two phones seized from him by police. This happened in an extremely unorthodox fashion. In court, the judge said "Unlock them," and Montanez was handed both phones. He claimed he couldn't remember the passcodes, saying they both had been recently purchased. No passcode, no freedom, the judge instantly ruled.
The police have a warrant and claim that's all they need to demand access to the phones' contents. But that's predicated on a string of events that seem constitutionally-dubious, to say the least.
An emergency petition [PDF] (via Florida You Judge) to challenge the judge's contempt ruling (and the warrant itself) has been filed by Montanez's attorney, Patrick Leduc. The petition details the traffic stop and arrest of Montanez, which appears to contain a handful of constitutional violations.
Montanez was pulled over for failure to yield. During this stop, a K-9 unit was brought to the scene to sniff Montanez's car after he refused to consent to a search. This is already questionable. The Supreme Court's ruling in Rodriguez makes it clear regular traffic stops aren't supposed to be fishing expeditions. If no reasonable suspicion presents itself (and refusing consent isn't suspicious activity), officers aren't allowed to extend stops to further badger drivers into relinquishing consent or bring a dog to scene to ask its permission for a search.
At this point, it's unknown how much time elapsed between the initiation of the traffic stop and the drug dog's arrival. All that's clear from the petition is that the dog wasn't there when the traffic stop began. Whatever the case, Montanez was never issued a citation for the infraction supposedly triggering the stop.
After the dog told the cops it was ok to perform a warrantless search, officers found a misdemeanor amount of marijuana, supposed THC oil (tested only with a drug field test, so…), and a handgun. The passenger of the car was a felon, so it was illegal for him to have it. The same can't be said for Montanez. Again, this may have been mooted by Montanez's mother claiming to own the handgun -- something the state has yet to disprove or even offer an opinion about.
Montanez did claim possession of the marijuana and alleged byproducts. Open-shut misdemeanor offense… except that officers seized his two cellphones and obtained a search warrant for them. This was predicated on one thing: a text message saying "omg did they find it" being received on one of the cellphones during the traffic stop.
Whatever "it" is, the officers appear to have found it. Since all the evidence needed to support the misdemeanor possession charges was already in the hands of law enforcement, why the compelling need to search the seized phones? According to the search warrant affidavit [PDF], the phones will apparently contain evidence of the crimes Montanez is charged with, which would seemingly be entirely supported by the marijuana and (alleged) THC oil already in their possession.
[T]here is now being stored on said Cellular iPhone certain evidence, to-wit: images, text messages, files, telephone numbers, call logs, graphic files, digital media and/or digital files, and any other media that can store digital files and/or digital media. Phone records, records of Internet Service Providers, E-mails and other electronic data, including but not limited to passwords telephone numbers, Emails, Instant messages or text message storage, computer images, computer programs and system documentation; documents files or any other computer data relating to passwords.
Which can provide evidentiary value in proving a violation of the Laws of the State of Florida, to-wit:
the Laws prohibiting: Possession of Cannabis Less Than 20 grams, Possession of Drug Paraphernalia and Possession of a Firearm During the Commission of a Felony
The felony listed here would be carrying the possession of a firearm by a felon. The only felon in the vehicle was the passenger, but it looks like prosecutors want to hang this on Montanez, despite the only other possible felony available being drug trafficking -- and the evidence on hand simply doesn't support that charge.
In any event, there's zero chance Montanez's phones will carry additional evidence of the charged criminal acts, which are all predicated on evidence the police have already obtained. The warrant appears to be a fishing expedition to try to prove Montanez is actually a drug dealer so the felony charge sticks. The two misdemeanor charges already have all the evidence prosecutors need, so police are pressing forward with zero probable cause to nail Montanez with a felony. The problem is, the probable cause has to come before the search, not after it, and that's why his lawyer is challenging the warrant.
The prosecution's request for contempt of court charges cites another state case as support for compelled passcode production. But the case cited here couldn't be more different than this one. While it does deal with compelled password production and contempt charges, it also deals with charges of voyeurism and an unchallenged warrant.
First off, there's a significantly better chance evidence of voyeurism might be contained in a seized cellphone. Second, the warrant in this case is being challenged, which makes it an entirely different judicial animal than the case cited.
As it stands now, Montanez is going to spend six months in jail for preventing police from rooting around in seized cellphones for evidence they don't need and which would likely be highly irrelevant to these criminal proceedings. The police can't show probable cause for this search because none exists. And yet, the judge trying the case demanded Montanez unlock the phones in court and when he failed to do so (Montanez claimed he could not remember the passcodes), the judge tossed him in jail to, I guess, jog his memory.
This case stinks all over. Nothing should move forward until the cops give a better accounting of their actions during the stop and come up with something better than "we just really want to look at his phones" under the heading "input probable cause." But chances are this will all end in Montanez spending an indefinite amount of time in jail without ever having been convicted of a crime.
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, contempt, encryption, illegal search, locked phones, william montanez
Reader Comments
Subscribe: RSS
View by: Time | Thread
Sounds like his new job is giving up his rights
[ link to this | view in chronology ]
Re: Sounds like his new job is giving up his rights
[ link to this | view in chronology ]
Re: Re: Sounds like his new job is giving up his rights
Like former IA governor Brandstad who got a state trooper fired for DARING to pull his vehicle over for going 20mph+ over the posted speed limit.
[ link to this | view in chronology ]
Re: Re: Re: Sounds like his new job is giving up his rights
[ link to this | view in chronology ]
Re: Re: Sounds like his new job is giving up his rights
Which is unlikely since they rubberstamp civil forfeiture cases by the 10s of millions.
[ link to this | view in chronology ]
Re: Sounds like his new job is giving up his rights
[ link to this | view in chronology ]
Re: Re: Sounds like his new job is giving up his rights
The taxpayers elected and empowered the asshats in question.
Therefore they deserve to pay.
Don't want to pay for asshats? Don't elect people who'll pass asshat laws and hire asshat officials.
[ link to this | view in chronology ]
Re: Re: Re: Sounds like his new job is giving up his rights
Maybe we should look at the system of elections...hard. Parties, money, patronage, get rid of them. Then we might get somewhere.
[ link to this | view in chronology ]
Re: Re: Re: Re: Sounds like his new job is giving up his rights
Yesssss. Give in to your anger, strike me down and your journey to libertarianism will be complete.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
[ link to this | view in chronology ]
Re: Re: Re: Re: Sounds like his new job is giving up his rights
The majority decides the rules that everyone lives under, including those who lost the election.
Is this news to you?
If you're uncomfortable with it, perhaps you'll see the merit in limited government, and rights that majorities can't take away.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
Bad laws are ignored by the populace, this also is how democracy works even when it has been hijacked. If you're uncomfortable with it then perhaps you will see the merit in ... wait a sec - "rights that majorities can't take away." What does that mean?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
Is this news to you?"
STFU u POS
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
To be fair, he's right. The problem lays with how they get there. See!
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
In reality, money decides the rules, the more money you have, the fewer rules you get.
People without the money have the most “rules” to follow.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
Well, yes, it is. Because under both the U.S. and our state constitutions, there are many things set beyond the power of the majority to change. The Bill of Rights, for instance, provides several protections which appear largely to protect against the will of the majority.
In our state, due to an amazingly dishonest bit of wheeling and dealing by development interests, it takes 60% of the voters to amend. Thus majorities can be spited and ignored in some cases.
[ link to this | view in chronology ]
Tyranny of the majority.
The problem is we haven't really had a chance to test it, thanks to gerrymandering and the American aristocracy choosing our nominations since time immemorial.
So, while the United States has been (so far) a step toward democracy, it never actually was, and that's obvious with things like the 3/5 rule, the lack of women's suffrage and the Electoral College.
I'd say we'd have to wait for the next iteration, when things get miserable enough for a constitutional convention, but I get the feeling the coming ecological collapse and corresponding resource crises are going to kill us back to neolithic technology.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
[ link to this | view in chronology ]
Re: Re: Re: Sounds like his new job is giving up his rights
Where do you live where the politicians and judges are upfront about what they'd do in cases like this and/or have absolutely zero ability to make choices other than what they are told to by the public(telepathically apparently, unless someone's calling up the judge and giving them their marching orders)?
'If elected I promise you that I will absolutely throw people in jail for months at a time for having a faulty memory. I promise to okay fishing expeditions undermining personal privacy on the grounds that everyone is a criminal and the police simply haven't caught them red-handed yet. I promise to do all this not because I want to, but because I have no other choice in the matter.'
Politicians and judges are not mindless dolls, incapable of making any decision on their own and wholly subject to the whims of the voting public. They make decisions, at times bad ones, and the fact that someone may have voted them into their current position should not shield them from personal responsibility for those decisions.
[ link to this | view in chronology ]
Re: Re: Re: Re: Sounds like his new job is giving up his rights
If the authorities break the rules, as given to them by duly elected officials, by all means prosecute them personally.
If they're acting within the rules prescribed by the elected officials, then it's the voters who are ultimately to blame.
You can't have authority without responsibility. If you want democracy, and the voters to ultimately control things, then those voters must accept responsibility for the results of their votes.
Lots of people are idiots. We let idiots vote. We get idiotic policies. This is the fault of the idiots who vote.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
How naive.
"If they're acting within the rules prescribed by the elected officials, then it's the voters who are ultimately to blame."
Again, your simplistic summary here does not make sense.
[ link to this | view in chronology ]
Re: Re: Re: Re: Sounds like his new job is giving up his rights
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
It’s well known that the applicants with degrees or high IQ’s are never hired.
The problem is that when you hire “smart” cops, they will question what they’re doing, and not respond as they’re told, they will see that the “bosses” are up to something or want them to cover for bad decisions.
When you hire “stupid”, they do exactly what they are told to do, and don’t question authority, covering up things done is easy for them, the same as becoming g a gang.
How many cops have turned in the bad cops?
It works it’s way up, corruption breeds corruption, it’s the same with judges, you scratch my back, I scratch yours.
[ link to this | view in chronology ]
Re: Re: Re: Sounds like his new job is giving up his rights
[ link to this | view in chronology ]
Re: Sounds like his new job is giving up his rights
Bullshit.
[ link to this | view in chronology ]
blow me
[ link to this | view in chronology ]
Re: blow me
[ link to this | view in chronology ]
Payback would be nice
[ link to this | view in chronology ]
Re: Payback would be nice
By whom? By President Donald “Rough 'em up” Trump's Department of Justice?
Even the Obama DoJ wasn't going to charge a judge with “contempt of law”. Judges have absolute judicial immunity for their judicial decisions. And “contempt of law” is not a recognized federal crime.
(Footnote omitted.)
[ link to this | view in chronology ]
Re: Re: Payback would be nice
[ link to this | view in chronology ]
Re: Re: Payback would be nice
Higher courts can censure the lower court judge and that could start the process to remove the judge from the Bar, in addition it calls into question all rulings by the Judge if hes flat out ignoring supreme court decisions.
If the judge can get past that the next step is Habeas Corpus which is basically going to the next higher court and saying "this judge is holding this man illegally".
But mostly unless the judge does something outright insane, he has to make a ruling that makes the people in power get mad at him.
[ link to this | view in chronology ]
Re: Re: Re: Payback would be nice
If the Florida legislature is not going to impeach a Florida judge for this decision, then why did you even mention impeachment?
If there's not even the faintest actual chance of impeachment over this, then mentioning it doesn't support your assertion that “there are solutions here.” Rather, the mention deprecates your assertion. You led off with your strongest evidence for the existence of “solutions”, right?
[ link to this | view in chronology ]
Re: Re: Re: Re: Payback would be nice
I am writing a comment on a news site, not a deep fact checked article about how one goes about the removal of judges who fail to follow supreme court case law. So what if my list is out of order.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Payback would be nice
You are peddling a fucking fairy tale.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re: I thought I remembered there being something like a right to
[ link to this | view in chronology ]
Re:
Ah, but he did get a speedy trial, in that he was in and out of court very quickly.
... That is what that means, right?
[ link to this | view in chronology ]
Right to a speedy trial
Yeah, there are a lot of rights to stuff which don't matter even when it's down on paper and allegedly the law of the land.
Only when we realize that the feudal system we escaped two and a half centuries ago has come back to bite our asses off will we change it.
But the people of the United States aren't angry enough, so the dereliction of justice will continue.
Maybe when everyone cares about someone who got wrongfully deprived of life or liberty will things turn. Maybe not until it is that bad.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
There is no evidence that supports the OMG THE LINDBERG BABY COULD BE FOUND IF WE COULD UNLOCK THE PHONE!!!!!
They extended a traffic stop.
They used a dog (which raises questions in itself).
They used a field test (which many departments work very hard to avoid hearing they are flawed).
If a mail carrier had arrived at a home during a raid & a post card said OMG DID THEY FIND IT! Would the court allow the home owner to be kept in jail until he agreed to allow them to open his safe deposit box & online accounts?
Drugs are bad 'mmmmmmmmmkay....
Allowing the rules to be bent, battered, abused, broken to ensure the most charges possible is much worse.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
"when they came for the trade unionists, I did not object..."
"... because I wasn't a trade unionist", but a corporatist and want fewer union types getting a fair deal.
Er, excuse the diversion from specific topic.
Anyhoo, was going on: "but when they came for the drug users, I DID object, because a drug user too. -- However, turned out that I squandered my little bit of credibility and resources on people who didn't deserve it, who are actually ALSO participating in the destruction of civil society."
That covers topic. I long ago quit worrying about dopers: they take their own chances in known milieu, and if get tossed into jail, TOO BAD.
Minion, though, asserts there's "ZERO" possibility of evidence on the phone. Sheer assertion. If you carry one of those electronic tattlers while carrying drugs, TOO BAD, again. It's reasonable to suppose that information of use in prosecution is on those. -- WHY TWO, by the way? -- And go to jail rather than exhibit? -- Right or wrong, that's the given choice, and NOT doing so is suggestive. -- You could certainly say was coerced and demand suppression of any evidence later. Even I'd probably go along with that! -- No matter how great the injustice of showing the phone contents if innocent, it's incomparably better to be out of jail when fight, period. -- SO, odd choice when advised by counsel...
Now, larger point: I'm sure most of you alcoholics and dopers are peaceable and no particular harm, but have you SEEN the ravages of meth? And that's the "liberating" direction you want society to go? Then you're a danger to ME.
[ link to this | view in chronology ]
How do you handle being a fascist and a sovcit at the same time?
[ link to this | view in chronology ]
Re: How do you handle being a fascist and a sovcit at the same time?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I'm pretty sure that anyone could write a simple Tasker app to do this on Android but... the destruction of evidence has pretty harsh penalties too. Although, it wouldn't lead to an indefinite time in jail.
[ link to this | view in chronology ]
Re: Re:
Shouldn't that be "unlimited" jail time?
[ link to this | view in chronology ]
Spin
180 what? If it's degrees I hope he manages to turn his life around.
[ link to this | view in chronology ]
Fourth Branch
....if deadlock or grossly ineffective
........if majority has leader
............shoot leader of party in majority
........else
............shoot random member of majority party
[ link to this | view in chronology ]
Re: Fourth Branch
[ link to this | view in chronology ]
Impeachment of Florida judges
[ link to this | view in chronology ]
dog says what?
Might want to fix that
[ link to this | view in chronology ]
Re: dog says what?
It refers to the idea that the dog alerted on the car, which (per court rulings, as I recall) is enough evidence of the presence of drugs to trigger sufficient suspicion for evidence the officers acquire when searching the car to be admissible in court even if they didn't get a warrant first.
[ link to this | view in chronology ]
And how is it that judges can basically throw due process out the window when they charge someone with contempt and jail them indefinitely? They can't beat a confession out of someone, but they can throw them in prison until they comply?
[ link to this | view in chronology ]
police can do anything to get the evidence.
[ link to this | view in chronology ]