On 21 June, a Florida cop pulled over William John Montanez for failing to come to a stop before he pulled out from a business’ driveway into the road.
It’s a minor infraction, but it was the first step on what’s turned into a Fifth Amendment meltdown: one that earlier this month led to Montanez being jailed for failing to unlock his cell phones.
The officer who pulled Montanez over decided he wanted to search his car. Montanez refused: which he is perfectly within his rights to do, and, legally speaking, doesn’t constitute suspicious activity. Refusing a search is merely the exercise of Fourth Amendment rights to be free of unreasonable searches and seizures.
Regardless of Montanez’s right to refuse the search, a K-9 unit was called in. A police dog sniffed his car and hit pay dirt: a small amount of marijuana, along with some THC oil and a handgun, was allegedly found. Montanez admitted that yes, the marijuana was his, however the gun was not – he said it was his mother’s.
According to court documents, police claim that when they took Montanez’s phones, they saw this text come in:
OMG, did they find it
Regardless of what “it” was, Montanez declined to agree to another police request: this time to search his phone. That led to police getting a warrant, and that’s how Montanez wound up in court, in front of Judge Gregory Holder, on 5 July.
Montanez’s lawyer, Patrick N. Leduc, claimed in court that police are on a fishing expedition. Fox News 13 quoted Leduc:
There is no information that the state can show, until I can challenge the warrant itself, that says, ‘Hey, what’s on these two cell phones are directly related to a possession of misdemeanor marijuana.’
Prosecutor Tony Falcone argued that the warrant is, in fact, lawful.
I think it’s appropriate the court order the defendant to show cause.
Holder wound up ruling that the police could indeed search for any evidence that might be found on Montanez’s phones. But when the phones were brought out from the evidence bag, Montanez told the judge that they were new and he couldn’t remember the passwords to unlock them.
I don’t know the code, sir.
Holder then found Montanez in civil contempt and threw him into jail – a sentence that could be as long as six months. He also ruled that if Montanez were to suddenly remember his passwords, he’d be released.
Leduc said that this could happen to any of us:
If they arrest you for anything – whether it’s drugs, guns, you name it – and an electronic device is nearby, they can get a search warrant and search it. And if you don’t provide that information to search it, to unlock, because you want to keep the information private, we’ll put you in jail.
Leduc has filed an emergency petition to challenge the contempt ruling and the warrant itself.
The petition includes details about the initial traffic stop and arrest, which Leduc claims contain a number of constitutional violations. According to the search warrant affidavit, Montanez’s two iPhones will apparently contain evidence of the crimes Montanez is charged with, in spite of the fact that those charges are already supported by the marijuana and THC oil that are, allegedly, already in police 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.
This case is much more complex than a simple traffic stop and (relatively minor) drugs bust. TechDirt’s Tim Cushing has done a thorough analysis of the case’s many legal complexities:
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.
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… the judge tossed him in jail to, I guess, jog his memory.
The US Supreme Court recently ruled that law enforcement must get a warrant to search cell phones in most cases.
Leduc said that his client was never cited for his initial, alleged failure to yield in traffic: the crime that purportedly started this whole thing.
Source : Naked Security