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>The officers demanded his passcodes, warning him they’d get warrants to search the cellphones. Montanez suspected that police were trying to fish for evidence

>The officers demanded his passcodes, warning him they’d get warrants to search the cellphones. Montanez suspected that police were trying to fish for evidence of illegal activity. He also didn’t want them seeing more personal things, including intimate pictures of his girlfriend. The police have a right to attempt you trick you into giving up information you shouldn't. Plead the fifth/don't talk to the police. >So he refused, and was locked up on the drug and firearms charges. This is fair. >Five days later, after Montanez was bailed out of jail, a deputy from the Hillsborough County Sheriff’s Office tracked him down, handed him the warrants and demanded the phone passcodes. Again, Montanez refused. Prosecutors went to a judge, who ordered him locked up again for contempt of court. This is also fair. The police acquired a warrant and presented the warrant legally. The man refused, committing the crime of contempt of court, which is a fair and just punishment for refusing to heed a court-issued warrant. It's also within his right to decide to serve the time for contempt of court rather than providing the password. Yes, there are lots of bigger issues touched upon in this story, but the headline seems sensationalist. Didn't the police do the right thing by obtaining a warrant for the password?

RandomBacon 7y ago
I agree with you, however... > spending 44 days behind bars before the THC and gun charges were dropped, the contempt order got tossed and he pleaded guilty to a misdemeanor pot charge. And yet he regrets nothing, because he now sees his defiance as taking a stand against the abuse of his rights. However failing to comply with the police and then a court order seemed to work in his favor. I imagine the consequences of him committing felonies and allowing the police to get even more evidence would have been worse than just 44 days and a misdemeanor and whatever he paid his attorneys.
iandanforth 7y ago
Legal yes, right no. In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidence. I would go further and say that in all cases you shouldn't be required to provide such information. It should be recognized as a basic right that you do not have to aid those who are trying to convict you of a crime. Our system of justice is adversarial for good reason and it is explicit in forcing those with the most power to limit the use of that power for the benefit of the accused. Without those checks and balances (and frequently even with them) abuse of that power, under the auspices of a greater good, would be common.
- oarabbus_ 7y ago
  >In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidence. I would go further and say that in all cases you shouldn't be required to provide such information. If you have illegal materials in your home, and the cops present a warrant to search your house, should you have the right to shut the door and not let them in?
  - rbritton 7y ago
    You should not be required to assist them. If they can get in on their own with a warrant, that's fair game.
    - oarabbus_ 7y ago
      An online persona soliciting child pornography has their IP traced to an individual with a criminal history, registered on a sexual offender database. The police have probable cause to believe this individual has and distributes child pornography. A judge signs a warrant to perform a forensic search of the individual's hard drive. The individual refuses. So then, it's just tough shit for the police right? Given that they can't get in on their own with a warrant.
  - cannonedhamster 7y ago
    I mean, you've got the right to not answer the door. They just have the right to break the door down because of the lawful warrant. You don't have to help with your own incarceration, i.e. point out evidence they were unable to find, why would you be expected to do the same thing on their phone? Police can't force people to testify either. If your only evidence of a crime rests on the defendent's compliance you've got a poor case. If you can't tie an IP to a device on a specific date and time without forcing someone to open their own device and admit guilt and ownership, then you're really not trying hard enough. The only way that the police can prove who committed a crime on a cell phone that is encrypted is either admission of ownership or compulsion. Neither of which is evidence of a crime in and of itself. They would still have to prove that the person who owned the phone committed the crime, otherwise why have the burden of proof on the prosecutor? These aren't civil cases we're generally talking about where the evidence requirement is lighter these are criminal cases where, as far as I understand anyways, the burdens are much higher. Add to that a cell phone is essentially a tracking device. While your position is certainly a reasonable one to take, I don't think it truly encapsulates the intent of our court system as designed and in fact expressly works against innocent until proven guilty.
mikeash 7y ago
The warrant that required his passcode seems like a clear Fifth Amendment violation.
- oarabbus_ 7y ago
  If the cops present a warrant to search your house, and you know you have incriminating evidence in your home and you refuse to let the cops in, is the warrant a violation of your Fifth Amendment rights?
  - mikeash 7y ago
    No, but as far as I know you won’t be prosecuted for refusing entry. The police will just force their way in. Strong crypto means the police can’t force their way in. But that doesn’t mean they should sprout new rights to force people to help.
  - Jaepa 7y ago
    If you have a coded book, do you have to read it to them? Obviously you will be detained if you try and prevent lawful execution of a search warrant. But its kind of a false equivalency saw that not providing a passcode is the same. From the Justice John Paul Stevens dissent from Justice John Paul Stevens (487 U.S. 201) A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe — by word or deed. This confirmed in UNITED STATES v. HUBBELL. That being said it has been challenged, and ruled on both sides do to the somewhat ambiguous framing. https://www.law.cornell.edu/supremecourt/text/487/201 https://www.law.cornell.edu/supremecourt/text/487/201 https://caselaw.findlaw.com/us-supreme-court/530/27.html https://caselaw.findlaw.com/us-supreme-court/530/27.html
- alistairSH 7y ago
  To further expound on this, the state cannot compel a person to testify against themselves. Is forcing the revelation of a passcode more akin to speech, or is it more akin to providing a physical key? The former is currently illegal, but being challenged in many jurisdictions. The latter is legal.
kevin_b_er 7y ago
He served time for being secure in his persons and effects. He served in order to not testify against himself. The police and that judge don't respect his constitutional rights, but he is standing up for them.
Zak 7y ago
> * The police acquired a warrant and presented the warrant legally. The man refused, committing the crime of contempt of court* The article also mentions that the law is not settled as to whether, and under what circumstances a court may compel the disclosure of a password. In the 11th circuit, courts are generally not empowered to compel decryption[0]. Being forced to disclose a password or key is treated as equivalent to being forced to testify against one's self, which is expressly prohibited by the fifth amendment. Florida is in the 11th circuit, and Montanez might have grounds for a lawsuit here. [0] https://www.eff.org/press/releases/appeals-court-upholds-constitutional-right-against-forced-decryption https://www.eff.org/press/releases/appeals-court-upholds-con...
johnmarcus 7y ago
not really, they had no probable cause. an eerie text message is not probable cause - it didn't specify the whom or the what. his gun was legal, hence the charges dropped. so basically, he was arrested for having a tiny bit of weed. That's not fair, that's obnoxious and a waste of tax payers money in every obvious regard, and a further waste of taxpayers money for the consequence of police officers pushing too hard.

RandomBacon 7y ago

I agree with you, however... > spending 44 days behind bars before the THC and gun charges were dropped, the contempt order got tossed and he pleaded guilty to a misdemeanor pot charge. And yet he regrets nothing, because he now sees his defiance as taking a stand against the abuse of his rights. However failing to comply with the police and then a court order seemed to work in his favor. I imagine the consequences of him committing felonies and allowing the police to get even more evidence would have been worse than just 44 days and a misdemeanor and whatever he paid his attorneys.

iandanforth 7y ago

Legal yes, right no. In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidence. I would go further and say that in all cases you shouldn't be required to provide such information. It should be recognized as a basic right that you do not have to aid those who are trying to convict you of a crime. Our system of justice is adversarial for good reason and it is explicit in forcing those with the most power to limit the use of that power for the benefit of the accused. Without those checks and balances (and frequently even with them) abuse of that power, under the auspices of a greater good, would be common.

oarabbus_ 7y ago
>In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidence. I would go further and say that in all cases you shouldn't be required to provide such information. If you have illegal materials in your home, and the cops present a warrant to search your house, should you have the right to shut the door and not let them in?
- rbritton 7y ago
  You should not be required to assist them. If they can get in on their own with a warrant, that's fair game.
  - oarabbus_ 7y ago
    An online persona soliciting child pornography has their IP traced to an individual with a criminal history, registered on a sexual offender database. The police have probable cause to believe this individual has and distributes child pornography. A judge signs a warrant to perform a forensic search of the individual's hard drive. The individual refuses. So then, it's just tough shit for the police right? Given that they can't get in on their own with a warrant.
- cannonedhamster 7y ago
  I mean, you've got the right to not answer the door. They just have the right to break the door down because of the lawful warrant. You don't have to help with your own incarceration, i.e. point out evidence they were unable to find, why would you be expected to do the same thing on their phone? Police can't force people to testify either. If your only evidence of a crime rests on the defendent's compliance you've got a poor case. If you can't tie an IP to a device on a specific date and time without forcing someone to open their own device and admit guilt and ownership, then you're really not trying hard enough. The only way that the police can prove who committed a crime on a cell phone that is encrypted is either admission of ownership or compulsion. Neither of which is evidence of a crime in and of itself. They would still have to prove that the person who owned the phone committed the crime, otherwise why have the burden of proof on the prosecutor? These aren't civil cases we're generally talking about where the evidence requirement is lighter these are criminal cases where, as far as I understand anyways, the burdens are much higher. Add to that a cell phone is essentially a tracking device. While your position is certainly a reasonable one to take, I don't think it truly encapsulates the intent of our court system as designed and in fact expressly works against innocent until proven guilty.

mikeash 7y ago

The warrant that required his passcode seems like a clear Fifth Amendment violation.

oarabbus_ 7y ago
If the cops present a warrant to search your house, and you know you have incriminating evidence in your home and you refuse to let the cops in, is the warrant a violation of your Fifth Amendment rights?
- mikeash 7y ago
  No, but as far as I know you won’t be prosecuted for refusing entry. The police will just force their way in. Strong crypto means the police can’t force their way in. But that doesn’t mean they should sprout new rights to force people to help.
- Jaepa 7y ago
  If you have a coded book, do you have to read it to them? Obviously you will be detained if you try and prevent lawful execution of a search warrant. But its kind of a false equivalency saw that not providing a passcode is the same. From the Justice John Paul Stevens dissent from Justice John Paul Stevens (487 U.S. 201) A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe — by word or deed. This confirmed in UNITED STATES v. HUBBELL. That being said it has been challenged, and ruled on both sides do to the somewhat ambiguous framing. https://www.law.cornell.edu/supremecourt/text/487/201 https://www.law.cornell.edu/supremecourt/text/487/201 https://caselaw.findlaw.com/us-supreme-court/530/27.html https://caselaw.findlaw.com/us-supreme-court/530/27.html
alistairSH 7y ago
To further expound on this, the state cannot compel a person to testify against themselves. Is forcing the revelation of a passcode more akin to speech, or is it more akin to providing a physical key? The former is currently illegal, but being challenged in many jurisdictions. The latter is legal.

kevin_b_er 7y ago

He served time for being secure in his persons and effects. He served in order to not testify against himself. The police and that judge don't respect his constitutional rights, but he is standing up for them.

Zak 7y ago

> * The police acquired a warrant and presented the warrant legally. The man refused, committing the crime of contempt of court* The article also mentions that the law is not settled as to whether, and under what circumstances a court may compel the disclosure of a password. In the 11th circuit, courts are generally not empowered to compel decryption[0]. Being forced to disclose a password or key is treated as equivalent to being forced to testify against one's self, which is expressly prohibited by the fifth amendment. Florida is in the 11th circuit, and Montanez might have grounds for a lawsuit here. [0] https://www.eff.org/press/releases/appeals-court-upholds-constitutional-right-against-forced-decryption https://www.eff.org/press/releases/appeals-court-upholds-con...

johnmarcus 7y ago

not really, they had no probable cause. an eerie text message is not probable cause - it didn't specify the whom or the what. his gun was legal, hence the charges dropped. so basically, he was arrested for having a tiny bit of weed. That's not fair, that's obnoxious and a waste of tax payers money in every obvious regard, and a further waste of taxpayers money for the consequence of police officers pushing too hard.