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

Fri, Jul 13th 2018 3:35pm — Tim Cushing

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.

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Filed Under: 4th amendment, contempt, encryption, illegal search, locked phones, william montanez

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Anonymous Coward, 13 Jul 2018 @ 3:48pm

Sounds like his new job is giving up his rights
With the right lawyer, he can easily get paid hundreds of dollars per hour he is forced to stay in jail. The cops and judge will end up having to lose their jobs due to total incompetence and the loss of basic rights.
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Anonymous Coward, 13 Jul 2018 @ 3:59pm

Re: Sounds like his new job is giving up his rights
Cops and judge lose their jobs over incompetence? In TAMPA? Are you freakin' kidding me?
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Anonymous Anonymous Coward (profile), 13 Jul 2018 @ 4:00pm

Payback would be nice
Can the police, prosecutor and the judge be charged with contempt of law? It sure seems that for justice to be done there needs to be some retribution for not following and/or stretching laws to get them to accomplish mere abuse of citizens.
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Anonymous Anonymous Coward (profile), 13 Jul 2018 @ 4:07pm

Re: Sounds like his new job is giving up his rights
Money isn't the answer to everything. It is the answer to some things, but think about who would actually pay. Taxpayers, not the asshats that committed the wrongs. So money isn't the appropriate answer in this case. Personal pain, extreme pain on the other hand...
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Anonymous Coward, 13 Jul 2018 @ 4:14pm

Re: Sounds like his new job is giving up his rights

… he can easily get paid hundreds of dollars per hour he is forced to stay in jail.

Bullshit.
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Anonymous Coward, 13 Jul 2018 @ 4:26pm

Re: Payback would be nice

Can the police, prosecutor and the judge be charged with contempt of law?

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.

[M]isbehavior while performing judicial acts is immune. In the case of Mireles v. Waco (1991), when a defense lawyer failed to appear for a scheduled hearing, the judge not only issued a bench warrant for his arrest, but instructed the police sent to arrest him to “rough him up a little”…

(Footnote omitted.)
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Anonymous Coward, 13 Jul 2018 @ 4:29pm

I thought I remembered there being something like a right to a speedy trial.
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Anonymous Anonymous Coward (profile), 13 Jul 2018 @ 4:33pm

Re: Re: Payback would be nice
I guess my premise is whether or not that is right, considering justice. I do understand that it is not the way we do things now. I am suggesting that justice demands something different.
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OldMugwump (profile), 13 Jul 2018 @ 4:35pm

Re: Re: Sounds like his new job is giving up his rights
I'll say it again.

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.
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OldMugwump (profile), 13 Jul 2018 @ 4:37pm

Re: I thought I remembered there being something like a right to
That was a dream.
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Paul Brinker, 13 Jul 2018 @ 4:47pm

Re: Re: Payback would be nice
There are solutions here, Judges have impeachment processes, but most of those are at the hands of some body that is in favor of what the judge is doing right now.

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.
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Anonymous Anonymous Coward (profile), 13 Jul 2018 @ 4:56pm

Re: Re: Re: Sounds like his new job is giving up his rights
So, I vote against an asshat, then have to pay anyway?

Maybe we should look at the system of elections...hard. Parties, money, patronage, get rid of them. Then we might get somewhere.
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Anonymous Coward, 13 Jul 2018 @ 5:06pm

Re: Re: Re: Payback would be nice

Judges have impeachment processes, but…

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?
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That One Guy (profile), 13 Jul 2018 @ 5:25pm

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.
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That One Guy (profile), 13 Jul 2018 @ 5:28pm

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?
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Uriel-238 (profile), 13 Jul 2018 @ 5:29pm

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.
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Agammamon, 13 Jul 2018 @ 5:41pm

Re: Re: Re: Re: Sounds like his new job is giving up his rights
"So, I vote against an asshat, then have to pay anyway?"

Yesssss. Give in to your anger, strike me down and your journey to libertarianism will be complete.
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That Anonymous Coward (profile), 13 Jul 2018 @ 6:23pm

It is so nice to see that when the cogs decide you are the bad man there is no limit to the latitude judges will provide.

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.
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Paul Brinker, 13 Jul 2018 @ 6:37pm

Re: Re: Re: Re: Payback would be nice
Please stop using the always attack playbook. If I defend my line you will just nitpick something else till you declare yourself the winner of some imaginary internet points.

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.
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Anonymous Coward, 13 Jul 2018 @ 6:56pm

blow me
seems contrived
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Anonymous Coward, 13 Jul 2018 @ 6:57pm

Re: blow me
any video>
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Anonymous Coward, 13 Jul 2018 @ 7:10pm

Re:
If he is a drug user, his long-term memory is most likely impaired as well. Since drugs are bad and all.
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Anonymous Coward, 13 Jul 2018 @ 7:40pm

Re: Re: Re: Re: Re: Payback would be nice
You are peddling a fucking fairy tale.
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Anonymous Coward, 13 Jul 2018 @ 8:22pm

"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.
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Anonymous Coward, 13 Jul 2018 @ 8:51pm

How do you handle being a fascist and a sovcit at the same time?
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OldMugwump (profile), 13 Jul 2018 @ 10:57pm

Re: Re: Re: Re: Sounds like his new job is giving up his rights
That is how democracy works. You don't get to opt out of the results just because your candidate lost.

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.
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OldMugwump (profile), 13 Jul 2018 @ 11:01pm

Re: Re: Re: Re: Sounds like his new job is giving up his rights
Voters give them the power.

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.
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Anonymous Coward, 14 Jul 2018 @ 12:36am

Re:
out_of_the_blue just hates it when due process is enforced.
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G Thompson (profile), 14 Jul 2018 @ 12:51am

Re: Re: Re: Re: Sounds like his new job is giving up his rights
You could start by NOT electing judiciary and high level LEO's in America.. That would instantly improve things
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Anonymous Coward, 14 Jul 2018 @ 6:50am

Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
There is another side to the object in question.

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?
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Anonymous Coward, 14 Jul 2018 @ 6:53am

Re: 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."

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.
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Anonymous Coward, 14 Jul 2018 @ 6:59am

Re:
Apparently such things are no longer needed, according to our esteemed "leader" who thinks due process is not impacted when no case review ever occurs prior to sentencing.
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Anonymous Coward, 14 Jul 2018 @ 7:00am

Re: How do you handle being a fascist and a sovcit at the same time?
Isn't that an oxymoron?
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Anonymous Coward, 14 Jul 2018 @ 8:37am

Re: Re: Sounds like his new job is giving up his rights
Tampa, NYC, Orlando, LA, doesn't matter. Cops don't lose their jobs over things like this unless someone with a great deal of money and power steps in.

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.
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Anonymous Coward, 14 Jul 2018 @ 9:28am

Re: Re: Re: Sounds like his new job is giving up his rights
Funny how some folk blow a gasket when told the law also applies to them .. and then go ape shit when told to check their privilege.
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Anonymous Coward, 14 Jul 2018 @ 9:44am

Re: Re: Sounds like his new job is giving up his rights
The only way TAMPA cops and judge would lose their jobs is if they start costing the state money.

Which is unlikely since they rubberstamp civil forfeiture cases by the 10s of millions.
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Anonymous Coward, 14 Jul 2018 @ 9:55am

We need an app or phone that has one code that unlocks the phone and a different code that initiates a self destruct.
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R.H. (profile), 14 Jul 2018 @ 10:28am

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.
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Anonymous Coward, 14 Jul 2018 @ 12:58pm

Re: 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?"

STFU u POS
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Anonymous Anonymous Coward (profile), 14 Jul 2018 @ 1:57pm

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!
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Anonymous Coward, 14 Jul 2018 @ 3:10pm

Re: Re:
"Although, it wouldn't lead to an indefinite time in jail."

Shouldn't that be "unlimited" jail time?
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Evan Seventeen, 14 Jul 2018 @ 11:40pm

Spin
"William Montanez has just been jailed for 180 by a Florida judge for refusing to unlock two phones seized from him by police."

180 what? If it's degrees I hope he manages to turn his life around.
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Anonymous Coward, 15 Jul 2018 @ 7:25am

Fourth Branch
When the Executive and Judicial Branches collude, and the Legislative has no motive to intervene we're at the mercy of the gov't. Since we seem too lazy to heed the Jeffersonian call to arms, why not establish a fourth, shadow group, the Assassinative Branch to cull the government herd, whenever the grossness of abuses becomes overtly fascistic. It could also break the deadlocks in Congress, following simple rules like:

....if deadlock or grossly ineffective
........if majority has leader
............shoot leader of party in majority
........else
............shoot random member of majority party
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Anonymous Coward, 15 Jul 2018 @ 9:52pm

Re: Fourth Branch
While viscerally tempting on some level to just shoot problems they in themselves would be a path to dictatorship. It would be like adding a backdoor to your system to try to reclaim it if it is ever hacked - even if it technically could work it is a bad idea since it is itself a security vulnerability as bad as what it is trying to prevent.
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thekgb (profile), 15 Jul 2018 @ 11:19pm

Re: Re: Re: Sounds like his new job is giving up his rights
But, it doesn’t matter who you vote for, it’s always the same guys with the same mentality that want the jobs. They’ll kiss every baby and help every grandma across the street until they get elected, then they toss grandma in jail for jaywalking, and say the babies are illegal aliens.
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thekgb (profile), 15 Jul 2018 @ 11:23pm

Re: Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
The majority actually doesn’t decide the rules, the majority thinks they have some say, that’s the game.
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.
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thekgb (profile), 15 Jul 2018 @ 11:32pm

Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
Look into the recruiting process for any police department anywhere.
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.
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oldoldman (profile), 16 Jul 2018 @ 8:26am

Impeachment of Florida judges
Look up Alcee Hastings to see what happens to judges in Florida who get impeached. They get elected to US Congress by Florida voters.
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wut, 16 Jul 2018 @ 8:59am

dog says what?
What did I just read? -> 'After the dog told the cops it was ok to...'

Might want to fix that
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The Wanderer (profile), 16 Jul 2018 @ 3:57pm

Re: dog says what?
No, that sentence is almost certainly phrased as intended.

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.
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Rekrul, 16 Jul 2018 @ 4:16pm

When given the phones to unlock, drop them on the ground and stomp on them. He can't be held in contempt for refusing to unlock phones that now can't be unlocked. They could charge him with destruction of evidence, but do they have enough evidence that the phones were evidence? Even if he got convicted of destroying evidence, at least that would come with a finite jail sentence as opposed to the indefinite imprisonment that judges can impose for a contempt charge.

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?
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Wendy Cockcroft, 19 Jul 2018 @ 2:31am

Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
Good one! Actually, you're both right. A change in the electoral system to proportional representation would resolve the problem and... make democracy work again.
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Anonymous Coward, 19 Jul 2018 @ 2:32am

Re: Re: Re: Re: Re: Sounds like his new job is giving up his rights
Rights that majorities can't take away are enshrined in law. "Limited government" tends to result in the Golden Rule, i.e. he who has the gold makes the rules.
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wells fargo routing numbers, 22 Jul 2018 @ 5:05am

police can do anything to get the evidence.
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Tanner Andrews (profile), 26 Jul 2018 @ 3:55am

Re: Re: 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?"

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.
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Uriel-238 (profile), 26 Jul 2018 @ 10:18am

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.
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