Introduction: Understanding Cell Phone Searches in Criminal Cases

Cell phones are more than communication devices—they hold a detailed record of our lives. In Florida and across the United States, courts have recognized the sensitivity and depth of this information. At the Law Office of W.F. “Casey” Ebsary Jr., we stay at the forefront of privacy law developments, especially those concerning cell phone searches in criminal investigations.

🎥 Featured Video: Expert Defense When Police Search Your Phone

Click the video above to watch a breakdown of why to choose an expert to protect your rights during a phone search.

If your phone has been searched, it may have been done unlawfully. This landing page explores the legal landscape of cell phone searches, Florida and federal rulings, constitutional protections, and what defenses may be available to you. To speak directly with Attorney Casey Ebsary, visit our contact page or view his biography to learn more.

🔎 Frequently Asked Questions About Cell Phone Searches

📈 Chart: Warrant Requirements for Cell Phone Data Types

✉️ Call to Action: Protect Your Digital Privacy Now

Have your digital rights been violated by law enforcement? Was your phone searched without a warrant? You may be able to fight the charges and suppress unlawfully obtained evidence. Let W.F. “Casey” Ebsary Jr., a Florida Board-Certified Criminal Trial Lawyer, evaluate your case. Contact us now or learn more about Casey here.

🌐 Legal Resources and Statutes

• Riley v. California (2014) – Justia
• Carpenter v. United States (2018) – Justia
• Smallwood v. State (Florida 2013) – Justia
• Rule 3.190(h), Florida Rules of Criminal Procedure

Meta Description : Florida attorney explains cell phone search laws, warrant rules, and digital privacy rights after Riley v. California and Carpenter.

Learn More About Cell Phone Searches

Cell Phone Tracking(Opens in a new browser tab)

Defense Attorney on Cell Phone Search | Evidence Suppressed(Opens in a new browser tab)

Cell Phone Search Incident to Arrest(Opens in a new browser tab)

Search Warrant | Cell Phone Update(Opens in a new browser tab)

Cell Phone Searches – Supreme Court to Rule on Warrant Requirement(Opens in a new browser tab)

Original Post From 2014

Cell Phone Search Warrant

Up until quite recently, there were exceptions to the general requirement that police get a Search Warrant for a cell phone. Cell phones have been a window into suspects’ activities, as police used these exceptions to get their hands on information found inside mobile devices. Obtaining a Search Warrant for a cell phone is not that hard to do. You can review a Search Warrant for a Cell Phone here:  Here is an actual iPhone Search Warrant. GPS or Global Positioning Satellite information found in mobile phones has also been used by police.

Up until around 2014, police could and did search digital information on a cell phone seized from an individual who was arrested. Defense Attorneys would frequently challenge such searches. These searches were frequently based upon “helping” arrested citizens by making sure their property was properly inventoried by the arresting officers for safekeeping by jail personnel or by the evidence unit at the arresting agency’s office. This rationale remains a frequent flier in broad invasive “inventory” searches of automobiles during traffic stops.

Phone Search, Search and Seizure, Search Warrant

Florida had outlawed warrantless phone searches before the US Supreme Court. That ruling is discussed here. Now prohibited will be mobile device and cell phone searches without a warrant. Before the 2014 United States Supreme Court ruling here was another Court’s Ruling on a Phone Search. Searches Incident to a lawful arrest were previously justified by cops using issues of police officer safety and prevention of destruction of evidence.

Now under Florida law, a Motion to Suppress Evidence can be filed pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure. Illegal Search and seizure now applies to phones and the Courts may exclude illegally obtained evidence including, photographs, video, text messages, directory and location data, voice mails, and emails.

Case Summary: The US Supreme Court’s ruling is that a properly obtained and issued search warrant is generally required before search of a phone. Here is some language from the Court’s ruling.

“Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras,video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”

“The sum of an individual’s private life can be reconstructed through a thousand photographs labeledwith dates, locations, and descriptions; the same cannot besaid of a photograph or two of loved ones tucked into a wallet.”

“To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter.”

“[T]he search incident to arrest exception does not apply to cell phones . . . .”

Some Excerpts from Florida Cell Search Cases:

“However, we express great concern in permitting the officer to search appellant’s cell phone here where there was no indication the officer had reason to believe the cell phone contained evidence.”

“We are equally concerned that giving officers unbridled discretion to rummage through at will the entire contents of one’s cell phone, even where there is no basis for believing evidence of the crime of arrest will be found on the phone, creates a serious and recurring threat to the privacy of countless individuals.”

Introduction

Cell phone tracking has become a crucial tool in modern forensic investigations. This technology can provide valuable data in legal cases, helping to establish the movements and locations of individuals. However, understanding the nuances of cell phone tracking, especially in legal contexts, requires careful consideration. This guide will help you navigate the complexities of cell phone tracking, its legal implications, and how to choose the right attorney for your case.

General Cell Phone Tracking Questions:

If you or a loved one is facing legal challenges involving cell phone tracking, call W. F. Casey Ebsary Jr. at 813-222-2220 or use our online contact form to schedule a free consultation.

What is Cell Phone Tracking?

Cell phone tracking refers to the process of identifying the location of a cell phone using various methods. This can include GPS tracking, triangulation using cell towers, and analyzing call data records (CDRs). Law enforcement agencies often use these techniques to gather evidence in criminal investigations.

Questions and Answers on Hiring a Lawyer and Defense Strategies:

How Cell Phone Tracking Works

GPS Tracking

GPS tracking involves using satellite signals to determine the precise location of a device. This method is highly accurate and can provide real-time location data.

Cell Tower Triangulation

Triangulation uses the signal strength from multiple cell towers to approximate the location of a phone. While less precise than GPS, it can still offer valuable location information.

Call Data Records (CDRs)

CDRs contain metadata about phone calls, such as the time and duration of calls and the cell towers used during the call. Analyzing this data can help determine the general location of a phone over time.

Legal Considerations in Cell Phone Tracking

Q and A Legal Considerations and Admissibility:

Admissibility of Evidence

Courts have generally accepted cell phone tracking data as admissible evidence, provided it meets certain reliability standards. For instance, in United States v. Morgan, the court noted that experts do not need in-depth knowledge of the algorithms underlying their technological tools to testify about the outputs of those tools. Here are a few quotes from important cases in the cell phone tracking space.

Defendant also objects that because Agent Horan “cannot explain how the data collected during a drive test is translated into the shaded areas on the drive test maps, SA Horan is not qualified as an expert to speak about the accuracy of those maps.” (Post–Hr’g Br. in Supp. of Def.’s Mot. in Limine, ECF No. 80, (“Def.’s Post–Hr’g Br.”) at 2.) However, this Court does not require an expert to have an in-depth knowledge of all the algorithms underlying their technological tools—such as hardware and software—to reliably testify about the outputs of those tools.

https://casetext.com/case/united-states-v-morgan-290

Forensic investigation increasingly requires the use of computer software or other technological devices for the extraction of data. While an investigator must have specialized knowledge in the use of the particular software or device, it is not required—nor is it practical—for an investigator to have expertise in or knowledge about the underlying programming, mathematical formulas, or other innerworkings of the software.

https://casetext.com/case/united-states-v-morgan-290

State v. Pratt , 200 Vt. 64, 128 A.3d 883, 891–92 (2015) (surveying multiple cases involving the use of computer software and other technological devices for the extraction of data); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig. , 978 F.Supp.2d 1053, 1080 (C.D. Cal. 2013) ; see also Gardner v. Gen. Motors Corp. , 507 F.2d 525, 528 (10th Cir. 1974) (noting that an expert “should not be required to satisfy an overly narrow test of his own qualifications”).

United States v. Morgan, 292 F. Supp. 3d 475, 484-85 (D.D.C. 2018)

Expert Testimony and Court Rulings:

Reliability of Data

The reliability of cell phone tracking data can be affected by several factors, including the technology used and the expertise of the analyst. In Williams v. State, the court found that the lack of knowledge about the error rate of the methodology did not impact the reliability of the analyst’s opinions.

Expert Testimony

Experts in cell phone tracking must demonstrate proficiency in using the relevant technology, though they are not required to understand every technical detail. This principle was upheld in multiple cases, including McMillian v. State and United States v. Hill.

Top Five Things to Consider When Hiring a Cell Phone Tracking Lawyer

If you or a loved one is facing legal challenges involving cell phones, call W. F. Casey Ebsary Jr. at 813-222-2220 or use our online contact form to schedule a free consultation.

Top Five Defenses Against Cell Phone Tracking Evidence

1. Challenging the Technology’s Reliability

• Argue that the technology used to track the cell phone is unreliable or outdated.
• Highlight any lack of peer-reviewed validation for the specific methods used.

1. Questioning the Expert’s Qualifications

• Scrutinize the qualifications and experience of the expert witness presenting the cell phone evidence.
• Argue that the expert lacks the necessary expertise to provide reliable testimony.

1. Highlighting Errors in Data Collection

• Point out any potential errors or inconsistencies in the data collection process.
• Argue that these errors could significantly affect the accuracy of the tracking data.

1. Arguing Lack of Specificity

• Emphasize that tracking cannot provide an exact location, only a general area.
• Argue that this lack of specificity undermines the prosecution’s case.

1. Questioning the Chain of Custody

• Examine the chain of custody for the tracking data.
• Argue that any breaks or inconsistencies in the chain of custody could compromise the integrity of the evidence.

Case Study: Understanding the Application of Cell Phone Tracking in Court

The Detective’s Testimony

In a recent cell phone tracking case, a detective testified about using a cell phone tracking program to map the defendant’s movements. The program created an illustration based on an algorithm “using field scans or radio frequency coverage and other field tests that are used to provide a cellular network pattern based off handoffs, subscriber density, tower density, network capacity, elevation, and terrain.” Although the detective did not know the underlying algorithm, he was able to demonstrate the technology’s reliability through his field tests.

Court Rulings on Cell Phone Evidence

Courts have consistently ruled that experts are not required to have in-depth knowledge of all the algorithms underlying their technological tools to testify about the outputs of those tools. This principle was upheld in United States v. Morgan, where the court found that the detective’s lack of knowledge about the error rate did not impact the reliability of his testimony. Similarly, in Williams v. State, the court concluded that the plotting software’s error rate did not affect the reliability of the analyst’s opinions.

The Morgan court ruled, “The detective testified that the program creates an illustration based on an algorithm “using field scans or radio frequency coverage and other field tests that are used to provide a cellular network pattern based off handoffs, subscriber density, tower density, network capacity, elevation and terrain.” The detective did not  know the underlying algorithm used to create the mapping output. An expert is not required “to have an in-depth knowledge of all the algorithms underlying their technological tools—such as hardware and software—to reliably testify about the outputs of those tools.” United States v. Morgan , 292 F. Supp. 3d 475, 485 (D.D.C. 2018).”

“Forensic investigation increasingly requires the use of computer software or other technological devices for the extraction of data. While an investigator must have specialized knowledge in the use of the particular software or device, it is not required—nor is it practical—for an investigator to have expertise in or knowledge about the underlying programming, mathematical formulas, or other innerworkings of the software.”

https://casetext.com/case/walker-v-state-122484

Id. (citation omitted).

https://casetext.com/case/walker-v-state-122484

Importance of Reliable Testimony

The reliability of testimony based on cell phone tracking data has been affirmed in several cases. In McMillian v. State, the court noted that the basic principles of cellular technology have been widely accepted and admitted into evidence.

Under section 90.702, Florida Statutes (2010), expert testimony is defined as “scientific, technical, or other specialized knowledge.” Additionally, “[t]he basic principles of cellular technology have been widely accepted and admitted into evidence.” Gosciminski v. State , 132 So.3d 678, 697 (Fla. 2013). Moreover, this Court has held that non-experts may testify about phone records. See Gordon v. State , 863 So.2d 1215, 1219 (Fla. 2003) (stating that testimony about cell phone records and comparing them to locations on cell site maps was not expert testimony and was properly admitted); Perez v. State , 980 So.2d 1126, 1131–32 (Fla. 3d DCA 2008) (ruling that cell phone records, cell site maps, and testimony explaining them was properly admitted and did not constitute expert testimony).

McMillian v. State, 214 So. 3d 1274, 1288 (Fla. 2017)

In United States v. Hill, the court found that district courts have almost universally admitted historical cell-site analysis.

District courts that have been called upon to decide whether to admit historical cell-site analysis have almost universally done so. See United States v. Jones,918 F.Supp.2d 1, 5 (D.D.C.2013) (collecting cases). Ironically, one of the few exceptions involved Agent Raschke himself. See United States v. Evans,892 F.Supp.2d 949, 956 (N.D.Ill.2012) (admitting traditional historical cell-site analysis, but rejecting Raschke’s novel and “wholly untested” theory of “granulization”). The government argues that the numerous district court decisions to admit historical cell-site analysis constitute “general acceptance” of the technique. But judicial acceptance is not relevant; what matters is general acceptance in the relevant expert (scientific or otherwise) community. See Daubert,509 U.S. at 594, 113 S.Ct. 2786; Gen. Elec. Co. v. Joiner,522 U.S. 136, 148, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (Breyer, J., concurring) (“[J]udges are not scientists and do not have the scientific training that can facilitate the making of such decisions.”).

United States v. Hill, 818 F.3d 289, 297 (7th Cir. 2016)

Conclusion

Tracking is a powerful tool in modern forensic investigations, but it comes with its own set of legal challenges. Understanding the technology, its limitations, and how it is treated in court is crucial for anyone facing legal issues involving cell phone tracking.

Choosing the right attorney is vital. Ensure they have the necessary experience, a strong track record, and the ability to communicate complex technological concepts clearly. If you or a loved one is facing legal challenges involving cell phone tracking, don’t hesitate to seek expert legal advice.

Call W. F. Casey Ebsary Jr. at 813-222-2220 or use our online contact form to schedule a free consultation.

Understanding your rights and having the right legal representation can make all the difference in your case.

Questions and Answers on Selecting an Expert Attorney