BY DAVID OVALLE
MIAMI – A Hollywood man must serve 180 days in jail for refusing to give up his iPhone password to police, a Broward judge ruled Tuesday — the latest salvo in intensifying legal battles over law enforcement access to smart phones.
Christopher Wheeler, 41, was taken into custody in a Broward Circuit Court, insisting he had already provided the pass code to police investigating him for child abuse, although the number did not work.
“I swear, under oath, I’ve given them the password,” a distraught Wheeler, his hands handcuffed behind his back, told Circuit Judge Michael Rothschild, who earlier in May found the man guilty of contempt of court.
‘The right call’
As Wheeler was jailed Tuesday, the same issue was unfolding in Miami-Dade for a man accused of extorting a social media celebrity over stolen sex videos.
That man, Wesley Victor, and his girlfriend had been ordered by a judge to produce a pass code to phones suspected of containing text messages showing their collusion in the extortion plot.
Victor claimed he didn’t remember the number. He prevailed.
On Tuesday, Miami-Dade Circuit Judge Charles Johnson ruled that there was no way to prove that Victor actually remembered his pass code, more than 10 months after his initial arrest. Johnson declined to hold the man in contempt of court.
“The judge made the right call,” said his lawyer, Zeljka Bozanic. “My client testified he did not remember. It’s been almost a year. Many people, including myself, can’t remember passwords from a year ago.”
Struggle for judges
Victor and his girlfriend, reality TV star Hencha Voigt, are accused of threatening to release sex videos stolen from Miami social media celebrity YesJulz in exchange for $18,000. Voigt is also facing a contempt of court charge — she provided her pass code, but it did not work.
She’ll appear in court next week to explain why.
Both cases underscore the friction over courts ordering defendants to give up their pass codes, which critics say violates a citizen’s Fifth Amendment right against self-incrimination.
Judges have struggled to determine how much access law enforcement can get to smartphones, tablets and hard drives — particularly ones using increasingly sophisticated encryption technology.
“For me, this is like turning over a key to a safe-deposit box,” Johnson said in ordering Victor and Voigt to give up their pass codes.
Appeals court decision
Both Wheeler and Victor were ordered to give up their pass codes under a Florida appeals court decision out of Sarasota that allowed for police to compel a pass code for a suspected video voyeur. The Florida Supreme Court has yet to take up the issue.
Wheeler was arrested in March on accusations that he hit and scratched his young daughter. He was charged with child abuse.
Detectives believe that his phone contains images of repeated injuries to the child, which could prove evidence in the case. A Broward judge earlier authorized a search warrant for Wheeler’s iPhone, but detectives had been unable to get in.
When a judge ordered him to provide the pass code, it didn’t work. Rothschild held him in criminal contempt earlier this month.
Wheeler will eventually be allowed to post bond pending an appeal. If he gives up a working pass code, he’ll be allowed out of jail, Judge Rothschild told him.