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?
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.
Your proposal is also unworkable. Should companies not be required to hand over corporate records, because those might implicate them in a crime? Should a murder suspect be allowed to deny police access to his shed, where the murder weapon might be hiding? A bedrock principle of law is that “the law is entitled to every man’s evidence.” The whole point of warrants is to reconcile that principle with private property—to create a structured way for police to access private property to get access to evidence. Your proposal isn’t a “check” or “balance”—it obliterates that principle. It allows wrongdoers to hide evidence of their crimes even against a valid warrant.
Most people think they can make a better adversarial system by tweaking this or that rule, but the unwanted outcomes are baked into the adversarial approach. What works between individual humans (more or less) doesn't translate well to conflicts between individual humans and collective entities which constitute facets of the state, bth because of the yawning asymmetries involved and because the state is necessarily and unavoidably schizoid due to the distributed nature of its consciousness and that of those who comprise its cellular elements.
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?
> 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.
> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
He’s not being asked to testify against himself at trial, which is literally what “being a witness” means. The Fifth Amendment has already been stretched far beyond its text, to encompass lots of scenarios where a person is ordered to reveal potentially incriminating information. It’s being turned into something very different from what it was written as—a general purpose right not to be compelled to aid in your own prosecution.
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.
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-con...
And if not, what is the difference between being ordered to confess and being ordered to produce evidence harmful to yourself?
Courts should have the right to seek evidence, no one is disputing that, nor is anyone disputing the rights of the court to seek that evidence unmolested, but there is a difference between seeking evidence and mandating compliance.
As far as I am concerned courts should not have any right to compel any action, particularly specific action. They should only have a right to compel inaction. In short, the court can issue warrants that permit their officers to conduct actions that would otherwise be illegal, for example entering my house without my permission, and they may even compel me to stand outside and not interfere while they do so, but they should never be able to compel me to open the door for them.
If they have a warrant and don’t open the door, they will break it down with a sledge hammer.
One has constitutional protection from the fifth amendment and the other doesn't.
Remember, it's up to the prosecutor to build on the evidence they have. If they don't have your phone they don't have much evidence. And it is my belief your passcode is your thoughts.
What if he gave them the codes? They would have noodled around his phone until they found something else. That traffic stop could have become felony possession and that felony possession could have been upgraded to felony distribution if someone had sent him a message to pick up something on the way back.
Perhaps a spoken phrase from the user that initiates the lock within the lock?
-ok ill let you know how to find me when i hear the safe word
or alexa play hide n seek.
https://www.legalmatch.com/law-library/article/can-the-polic...
The answer is yes, with a search warrant. Therefore, I see no reason that a phone should be treated differently.
I haven't really used the feature yet but thought it was a really cool idea. https://www.pcsteps.com/18454-second-android-user-account-xi...
Maybe a tertiary duress code that starts a timer and performs predefined actions after {n} minutes. i.e. send control code to a server, notify friends, family, lawyer you are under duress with GPS coordinates, wipe phone at the risk of destroying evidence, start sending audio to youtube, transfer / delegate data to a different predefined device, etc... Might be useful if you are being mugged.
Cell phones routinely keep a log of who you've been talking to, when, and a big chunk of the actual contents. They also will often collect location history, or broadcast the location to third parties as part of their normal operation.
