Man jailed for not unlocking iPhone adds fuel to device search warrant debate
A Florida man was thrown in jail for 44 days for refusing to unlock two iPhones in his possession during a traffic stop, an incident fuelling the ongoing privacy debates over how law enforcement can legally gain access to a smartphone's contents via passcode or biometrics, without being unconstitutional.
Last June, William Montanez was pulled over by police in Tampa, Florida and questioned over his possession of marijuana. Montanez, whom had previously been pulled over over similar matters in the past, confirmed his usage and did not attempt to hide the drug in the vehicle, resulting in his arrest for possession of marijuana, the felony of two small bottles thought to contain THC oil, and for having a firearm in the glovebox while committing the felony.
At the time of the arrest, NBC News reports two iPhones were seized, and the text message appeared on one lock screen stating "OMG, did they find it?" The police demanded the passcodes, advising they were intending to obtain a warrant to search, but Montanez declined to do so, believing they would not only be fishing for evidence of other illegal activities, as well as not wishing for personal data to be revealed, such as intimate photographs.
After being bailed from jail, a Hillsborough County Sheriff's Office deputy served a warrant to Montanez for the passcodes five days later. Montanez refused again, prompting prosecutors to convince a judge he was in contempt of court and being put in jail a second time.
For the second spell in jail, Montanez spent 44 days before the charges relating to the oil and firearm were dropped, and the contempt order was voided. Eventually, he pleaded guilty to a misdemeanor charge for pot.
Despite the loss of his freedom for an extended period of time, Montanez believes he was taking a stand against what he thought was an abuse of his rights.
The report goes on to highlight the issues and ongoing debate surrounding the need for the police to acquire evidence in a digital world, but being caught up in constitutional amendments that prevent access to locked devices, despite the relative ease of biometric security like Face ID and Touch ID to gain access.
There is the argument in some cases that a warrant could be denied due to the fourth and fifth amendments, such as the case in Idaho in May. A warrant to search a device of unknown ownership was considered as under the fourth amendment it would be lawful if it was "reasonable," namely if it didn't violate the person's constitutional rights, but the fifth protecting against self-incrimination meant the device could not be unlocked as it would identify the person as its owner, which also brought into play the fourth.
The alternative is for the police to employ hacking techniques, like the "GrayKey" tool from 2018 that some regional police forces used to access the contents of smartphones, but at a cost of thousands of dollars to license the technology.
Due to the expertise required, the unreliability of the techniques, and the cost, there is an increased pressure for law enforcement to get the suspect to unlock the smartphone, but the trouble with acquiring access due to current law is said to give more of an edge to criminals.
"It would have an extreme chilling effect on our ability to thoroughly investigate and bring many, many cases, including violent offenses," said Hillar Moore, district attorney for East Baton Rouge, Louisiana. "It would basically shut the door."
In the case of Montanez, authorities used a 2014 upskirting case as a guideline for how to interpret the law. While ultimately the suspect pleaded no contest in exchange for probation and did not provide access to the smartphone, it is used by prosecutors as a precedent to threaten people with jail time for not unlocking their devices.
The interpretation of the law changes from county to county, as well as varying between individual investigations, as the circumstances can dictate what parts of the constitution are needed to be taken into account.
Last June, William Montanez was pulled over by police in Tampa, Florida and questioned over his possession of marijuana. Montanez, whom had previously been pulled over over similar matters in the past, confirmed his usage and did not attempt to hide the drug in the vehicle, resulting in his arrest for possession of marijuana, the felony of two small bottles thought to contain THC oil, and for having a firearm in the glovebox while committing the felony.
At the time of the arrest, NBC News reports two iPhones were seized, and the text message appeared on one lock screen stating "OMG, did they find it?" The police demanded the passcodes, advising they were intending to obtain a warrant to search, but Montanez declined to do so, believing they would not only be fishing for evidence of other illegal activities, as well as not wishing for personal data to be revealed, such as intimate photographs.
After being bailed from jail, a Hillsborough County Sheriff's Office deputy served a warrant to Montanez for the passcodes five days later. Montanez refused again, prompting prosecutors to convince a judge he was in contempt of court and being put in jail a second time.
For the second spell in jail, Montanez spent 44 days before the charges relating to the oil and firearm were dropped, and the contempt order was voided. Eventually, he pleaded guilty to a misdemeanor charge for pot.
Despite the loss of his freedom for an extended period of time, Montanez believes he was taking a stand against what he thought was an abuse of his rights.
The report goes on to highlight the issues and ongoing debate surrounding the need for the police to acquire evidence in a digital world, but being caught up in constitutional amendments that prevent access to locked devices, despite the relative ease of biometric security like Face ID and Touch ID to gain access.
There is the argument in some cases that a warrant could be denied due to the fourth and fifth amendments, such as the case in Idaho in May. A warrant to search a device of unknown ownership was considered as under the fourth amendment it would be lawful if it was "reasonable," namely if it didn't violate the person's constitutional rights, but the fifth protecting against self-incrimination meant the device could not be unlocked as it would identify the person as its owner, which also brought into play the fourth.
The alternative is for the police to employ hacking techniques, like the "GrayKey" tool from 2018 that some regional police forces used to access the contents of smartphones, but at a cost of thousands of dollars to license the technology.
Due to the expertise required, the unreliability of the techniques, and the cost, there is an increased pressure for law enforcement to get the suspect to unlock the smartphone, but the trouble with acquiring access due to current law is said to give more of an edge to criminals.
"It would have an extreme chilling effect on our ability to thoroughly investigate and bring many, many cases, including violent offenses," said Hillar Moore, district attorney for East Baton Rouge, Louisiana. "It would basically shut the door."
In the case of Montanez, authorities used a 2014 upskirting case as a guideline for how to interpret the law. While ultimately the suspect pleaded no contest in exchange for probation and did not provide access to the smartphone, it is used by prosecutors as a precedent to threaten people with jail time for not unlocking their devices.
The interpretation of the law changes from county to county, as well as varying between individual investigations, as the circumstances can dictate what parts of the constitution are needed to be taken into account.
Comments
His track record is irrelevant.
I've lived in a police state and we had no rights. Everything was against the law if the police wanted it to be.
However, forcing an individual to unlock their phone is clearly a violation of 5th Amendment protections against self incrimination. I would even go so far as to argue that the use of "hacking tools" to unlock or decrypt phones, and other devices or documents, is inherently a 5th Amendment violation as there is a reasonable expectation that locked and encrypted devices and documents are essentially private in the same way that one's thoughts are. If that makes life difficult for law enforcement, so be it. The founders did not, nor did subsequent generations of lawmakers, include a clause or amendment that waives individual rights to privacy or self incrimination in cases where that makes life difficult for law enforcement.
I'm Latino (Mexican-heritage) and trust me that there's a lot of 100% legal activity I can do that will attract the attention of police officers. Do I do it? No. Can I do it? Sure. Do I want the hassles of explaining myself to a cop, particularly a nervous one? No. You'll probably imply that restricting my legal but attention-getting behavior I'm somehow being oppressed by a police state. No... I just have better, more productive things to do with my time and police officers have enough stress to deal with that I don't want to contribute to that.
PS it is totally ridiculous for Florida to still have pot be illegal. Take over distribution, regulate it, tax it, and let this largely-harmless (certainly much more harmless than cigarettes, alcohol, or gambling) recreational drug take its place among life’s other simple pleasures for those who enjoy it.
Forgot to mention, in the police state I lived in if you took video of police they'd take your phone and delete it.
More reason to stand up for your rights. Giving up your rights helps no civilian.
Go ahead though... smoke a big blunt, loiter in your car while blasting music, and have a generally pissed-off motif going on. See how well that works for you in the long run. Oh yeah... citizens walking by your car will feel completely safe knowing you had a pistol in your car cuz.. hey... charges dropped right?
Legally issued and executed warrants are expected to be limited in scope, and not open-ended. That is not the case with accessing digital devices.
His "numerous run-ins with the police" sound like intentional targeting to me:
Where does it say he was loitering and plastic music smoking a big blunt while pissed off? None of that is in the article. Sounds to me like he was completely cooperative.
Likewise, the car and handgun belonged to his mother:
The suspected THC oil tested negative.
So, he was basically arrested for having a joint in the car. Yet you're painting him out to be some kind of thug criminal. Incredible.
It's fairly obvious sflocal subscribes to the philosophies of acquiescence and conformity. A lot of people do. It's an easy way to live I guess. No judgement. I do have judgement for his fan fiction version of the guy in the article though.
https://www.nbcnews.com/news/us-news/give-your-password-or-go-jail-police-push-legal-boundaries-n1014266
There are several issues. First, I'll assume the stop was legal. If it wasn't then everything is moot. After that, he had a marijuana joint - you can argue whether that should be legal or not, but if it is illegal in FL then that's the law. That gave the police a clear legal basis to search his car. During the search, they found what they suspected was THC oil. Again, it doesn't matter what your view is, it is apparently a felony to possess it in FL, so now as far as the police are concerned, they have a potential felon. The gun in the glove box was legal until the THC oil came into the picture. Then they see a text saying "OMG! Did they find it?" In those circumstances, any reasonable person could assume that there may have been something more. The fact that the vials later turned out not to be THC oil doesn't matter as long as it was reasonable for the police to think that they were.
The only real question I see here is the court order for Montanez to unlock his phone. The 5th amendment is clear about the right not to self-incriminate. Most people and many courts take the view that supplying a passcode to a device is tantamount to self-incrimination. I was not aware of this, but this has never come up on a federal or Supreme Court level, so different states have different precedent cases, and some have none. In FL, there was such a case in the state appellate court where it was ruled that an individual can be compelled to unlock their device. Until this is challenged to either to the state Supreme Court or the Federal Supreme Court, or the state legislature creates a different law, that is the law that is governing FL.
In this case, as things progressed, it became clear that most of the charges were baseless and they were dropped. The main point that kept Montanez in jail was the contempt charge which was never fully litigated. I would have preferred to see it challenged in either the state or federal Supreme Court, unfortunately (for my curiosity, at least; fortunately for Mr. Montanez) the case fell apart and everything was dropped before that could happen.
There are many people here posting about 'police states.' There is a big difference between a police state, in which the police have virtually unchecked power to do as they please, and the United States where the police power is very clearly regulated and limited by the courts. The simple fact that the police make or attempt a search that you might disagree with does not make it a police state. I certainly hope no one would argue that the police should never have the right/authority to search personal property - the constitution is clear on this as well. After that it becomes a question of how much authority they should have and how it is regulated. This question comes up on a daily basis in the courts across the country and cases routinely get thrown out. I don't think we should give up our right to privacy, but I do feel strongly that the police should have appropriately regulated authority to perform searches when necessary. I don't have a good answer for how that should be managed in the digital age.