Apple iPhones, Defendants, and the 5th Amendments
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Posted on 05/04/2017 5:54:50 PM PDT by Swordmaker
A reality TV actress accused in an extortion case involving sex videos must give up her iPhone password to police, a Miami judge ruled on Wednesday.
In a case being closely watched in legal and tech circles, Miami-Dade Circuit Judge Charles Johnson ruled that Hencha Voigt, and a man charged with being her accomplice, must unlock phones police believe were used in a plot to extort a social-media celebrity.
He ruled that unlocking their phones would not violate their constitutional right against self-incrimination. “For me, this is like turning over a key to a safe-deposit box,” Johnson said.
Voigt and co-defendant Wesley Victor have two weeks to decide whether to comply. If they refuse, they could be jailed for contempt of court.
(Excerpt) Read more at miamiherald.com ...
Is it a warrant ?
If it’s a warrant, it’s like looking in notebooks and file cabinets.
Without a warrant, I would be very cross.
Not sure how you can force someone to remember something they have forgotten....
Basic search and seizure law. Nothing new here at all.
Only difference is the state can’t bust the phone’s door down if the suspect refuses to permit execution of the search warrant. Ergo the order requiring suspect to give password or unlock.
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“Oh, I forgot.”
Or to paraphrase Hillary... “I don’t recall.”
Even with a warrant, the authorities cannot make you show them what they are looking for. They can't make you open the appropriate door and file, and point out the incriminating evidence. They have to open the drawers, look, and find it. They cannot make you do that at all. . . and that includes unlocking it. If there is a physical key, they can compel you to hand them over, but it has to be physical and on your person or in your control. Otherwise, nope.
You can just stand there and watch, you are not required to help them in any way.
“Would not answering that question be compelling a person to be a witness against themselves if there were evidence he or she wished not to reveal?”
No. They can’t force them to testify in court against themselves. But with a warrant, they can search and seize papers, basically anything. “No, you can’t come in my house and search my papers.”
Yes, with a warrant they can.
They have two weeks to forget their password. The court cannot force a person to remember something they forgot. I frankly think that forcing a person to say anything is, in fact, a violation of the 5th amendment. Per the Miranda warning, “You have the right to remain silent...” I would advise them to do just that.
So true, I've forgotten passwords. Just like people losing firearms while boating, plus forgetting where the boat went.
You can't be forced to tell your password. However, you can be forced to use your fingerprint to unlock your phone. There is a difference. So maybe it's better not to enable fingerprint locking if one is concerned about government prying into your secrets.
The Hillary defense is “I don’t recall.”
Doesn’t work for the peasants, though.
Well, yeah, they can try to bust down the door on the iPhone... if they can figure out a way around the built-in protections or the encryption. That's what's difficult, if not downright impossible, but they are welcome to try. Currently, after 10 failed passcode attempts the iPhone will erase the data completely. Not too good a result for what they are after, though.
I think the last sentence of the article is telling, however:
“We were not surprised by the ruling,” Conze said. “But this is not a decision we agree with. We will speak to my client to see if she remembers the pass code to begin with.”
I can predict the answer:
"I can't remember."
“For me, this is like turning over a key to a safe-deposit box,” Johnson said.
Well uhhhh, yer fookin wrong.
If I choose not to hand you a key you can, with a warrant, drill it open to access it.
That there isn’t a plasma cutter for a cell phone isn’t my constitutional problem.
Besides, you jerk offs can obtain a probable cause warrant and upon serving it to my cell phone carrier, they will provide the records you seek.
Zactly.
Lost my passwords in a swimming accident...
I agree they can. . . but if it takes compelling testimony from that person as to WHERE or HOW to get at or find those papers, then they cannot.
"You MUST tell us where you put them and how to find them! Where is the evidence we need to find filed?" the police man cried. clutching his search warrant. "We have ways of making you talk!"
They don’t enlist your help in a search anyway, to preserve chain of custody, ensure their search is limited to the scope of the warrant and prevent evidence tampering...
They can open the phone themselves, if it’s so important
The real danger here is government overreach if criminal suspects all suddenly start to “forget” their phone’s password. That will lead to court approved procedures and all kinds of new laws we don’t want at all.
Potentially huge intrusions on the rights of the law abiding because of lying and subterfuge by criminals.
Francis Rawls tried that and has spent 19 months in jail as a result.
Just lost his appeal.
http://www.phillyvoice.com/jailed-over-locked-computer-ex-cop-loses-again-in-/
Nobody’s saying suspects have to point things out on their phone. Only that they open the door when served with a valid search warrant.
Who the freep are these people? How is this even a thing?
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