Florida Man Jailed for Refusing to Turn Over Cell Phone Passcode

Broward Circuit Court Judge Michael Rothschild found Wheeler in criminal contempt of court in early May. At that time, Wheeler did provide a passcode to authorities, but it proved to be incorrect.

Judge Rothschild sentenced Wheeler to 180 days in jail. This past week, the defendant continued to insist he had provided the right passcode.

The ruling relies in some measure on a December 2016 decision by the Second District of the Florida Court of Appeals. In its ruling, the court found that a passcode is not related to any evidence that may be on the phone, and thus providing it would not be self-incriminating.

 Providing the passcode does not ‘betray any knowledge [Stahl] may have about the circumstances of the offenses’ for which he is charged. Thus, ‘compelling a suspect to make a nonfactual statement that facilitates the production of evidence’ for which the state has otherwise obtained a warrant based upon evidence independent of the accused’s statements linking the accused to the crime does not offend the privilege.”

In a similar case in Florida last week, Miami-Dade Circuit Judge Charles Johnson ruled in a different manner. He noted that the defendant could not be expected to remember his passcode 10 months after his initial arrest.

Critics of the December appeals court ruling still argue that providing a passcode to a cell phone is a clear violation of the Fifth Amendment

The Fifth Amendment to the U.S. Constitution states:

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.”

In Florida the state Supreme Court has yet to weigh in on whether police even have the right to demand a suspect’s passcode.

For Wheeler, there are only two options to get out of jail. He will at some point have an opportunity to post bond, following an appeal. Or he could get temporary release by just providing the passcode.

Balancing the right of the state to gather evidence against an individual’s Fifth Amendment right has entered an entirely different phase with the advent of cell phones. It will take on a different urgency if someone’s safety or life hangs in the balance.

Source: The Free Thought Project