Can the police force you to give up the Password to your phone?

iPhonePassword

Can Police Force You to Give Up iPhone Password?


“we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones “

 

A court in Florida just ruled that a defendant could be forced to provide the password to his iPhone. A distinction is important – they got a search warrant. Without a warrant, the case may have been decided in favor of protecting the phone owner’s privacy. The phone had a cracked screen and had been allegedly used to take photographs that would have been useful in the prosecution of the phone’s owner. You can review a typical  iPhone Search Warrant here. At the bottom of this article are numerous other articles we have written on this topic.


Right to Remain Silent

 

Usually, we think that we have a right not to incriminate ourselves. However, this Florida Court in the Tampa Bay area ruled that providing the password did not constitute testimony against one’s self. In a convoluted 19-page ruling the court found that while there may be evidence of a crime, providing the passcode was not testimonial.

Here are some excerpts from the iPhone Court’s ruling.


“That an accused may be “forced to surrender a key to a strongbox containing incriminating documents,” but he cannot “be compelled to reveal the combination to his wall safe,” Doe, 487 U.S. at 219 (Stevens, J., dissenting), is another often repeated quote. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 210 n.9; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. Despite the many cases referencing the quote, we have found none that provide details of “surrender[ing] a key.” We question whether identifying the key which will open the strongbox—such that the key is surrendered—is, in fact, distinct from telling an officer the combination. More importantly, we question the continuing viability of any distinction as technology advances. See Fisher, 425 U.S. at 407 (“Several of Boyd[ v. United States, 116 U.S. 616 (1886)]’s express or implicit declarations have not stood the test of time.”). In that respect, we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number . . . . ”


“In this case, the communication was sought only for its content and the content has no other value or significance.11 By providing the passcode, Stahl would not be acknowledging that the phone contains evidence of video voyeurism. See Doe, 487 U.S. at 215. Moreover, although the passcode would allow the State access to the phone, and therefore to a source of potential evidence, the State has a warrant to search the phone—the source of evidence had already been uncovered. See id. Providing the passcode does not “betray any knowledge [Stahl] may have about the circumstances of the offenses” for which he is charged. See id. at 219 (Stevens, J., dissenting). It does not implicitly “relate a factual assertion or disclose information.””


“The Fifth Amendment privilege against self-incrimination has been held to apply not only to verbal and written communications but also to the production of documents, usually in response to a subpoena or summons, because the act of production itself could communicate incriminatory statements. See Fisher, 425 U.S. at 410. The courts that have addressed the Fifth Amendment implications for providing decryption keys and passcodes have largely applied the act-of-production doctrine and the foregone conclusion exception. See, e.g., Sec. & Exch. Comm’n v. Huang, No. 15-269, 2015 WL 5611644, *1 (E.D. Penn. Sept. 23, 2015); United States v. Fricosu, 841 F. Supp. 2d 1232, 1235 (D. Col. 2012); In re Grand Jury Subpoena to Boucher (In re Boucher), 2:06-MJ-91, 2009 WL 424718, *2-3 (D. Vt. Feb. 19, 2009); Gelfgatt, 11 N.E.3d at 612; Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014). But see United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (concluding that providing the password was testimony protected by the privilege against self-incrimination).”


“Invoking the privilege still requires the accused to establish compulsion, a testimonial communication, and incrimination. And as we have said, in this case compulsion and incrimination are not at issue, leaving only the testimonial element. Testimonial elements of production include (1) the existence of the documents, (2) the accused’s possession or control of the documents, and (3) the authenticity of the documents. Hubbell, 530 U.S. at 36.”


” “The difficult question whether a compelled communication is testimonial for purposes of applying the Fifth Amendment often depends on the facts and circumstances of the particular case.” Doe, 487 U.S. at 214-15. Here, the trial court rested its determination that producing the passcode would be testimonial exclusively on the concept that production would require “the use of the contents” of Stahl’s mind. The phrase “the contents of the accused’s mind” has often been repeated in cases discussing the privilege. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 211; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. And although the trial court correctly quoted the Eleventh Circuit’s statement in In re Grand Jury, that “[t]he touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact,” 670 F.3d at 1345, the trial court did not consider the law as stated in Hubbell and Doe—that the contents of the accused’s mind must be “extensive[ly] use[d]” in creating the response, Hubbell, 530 U.S. at 43, or must “relat[e] him to the offense,” Doe, 487 U.S. at 2013.10 That is, “it is not enough that the compelled communication is sought for its content. The content itself must have testimonial significance.” Doe, 487 U.S. at 211 n.10 (emphasis added) (first citing Fisher, 425 U.S. at 408; then citing Gilbert v. California, 388 U.S. 263, 267 (1967); and then citing United States v. Wade, 388 U.S. 218, 222 (1967)). ”


“Although the phrase “the use of the contents of the accused’s mind” has been used in act-of-production cases, we note that the case cited by the Eleventh Circuit for its proposition that the use of the contents of the accused’s mind is the touchstone of whether an act of production is testimonial does not so hold. Curcio v. United States, 354 U.S. 118 (1957), provides that there “is a great difference” between compelled production of documents and compelled testimony, specifying that testifying as to the location of documents “requires him to disclose the contents of his own mind.” Id. at 127-28. ”

Source: STATE OF FLORIDA v AARON STAHL Case No. 2D14-4283  Opinion filed December 7, 2016.

Previous Coverage of Cell Phone Searches

 

www.centrallaw.com/tag/cellphone/
Dec 3, 2015 Search Warrant for an Abandoned Cell Phone. Police search lost cell phone – The cops waited 23 days to get a search warrant. A Florida Court …
www.centrallaw.com/search-warrant-i-phone-cell-phone-florida-attorney/
Jul 17, 2010 Search Warrant for a Cell Phone? Tell Me Your Story Toll Free 1-877-793-9290 or Click the Call Me Button to Your Right at the top of this page.
www.centrallaw.com/search-warrant-for-cell-phone-handset-required-florida- supreme-court-says/
May 2, 2013 Search Warrant for Cell Phone Handset Required – Florida Supreme Court Says a police officer is not authorized to search through …
www.centrallaw.com/defense-attorney-on-cell-phone-search-evidence- suppressed/
Apr 27, 2011 Criminal Defense Attorney / Lawyer notes a recent Cell Phone Search ruling on a Motion to Suppress Evidence, filed pursuant to Rule 3.190(h), …
www.centrallaw.com/police-search-lost-cell-phone/phone/
Dec 3, 2015 Search Warrant Cell Phone. Search of Lost Cell Phone. What happens when you lose a cell phone and it has illegal material on it?
www.centrallaw.com/cell-phone-searches-supreme-court-to-rule-on-warrant- requirement/
Jan 21, 2014 One friend has said, “Wow, the Supremes are taking a serious look at cell phone searches! There’s been talk for a while now about the …
www.centrallaw.com/cell-phone-search-incident-to-arrest/
May 6, 2011 One Florida court has just ruled in a 33 page opinion that pictures in a cell phone obtained from a suspect who had been arrested were …
www.centrallaw.com/search-warrant-cell-phone-update/
May 21, 2013 Wurie, Cell Phone, Search, Warrant. Florida Criminal and DUI Defense Attorney notes a Federal Court has lined up with the Florida Supreme …
www.centrallaw.com/cell-phone-and-gps-location-data-in-criminal- prosecutions/
Dec 15, 2011 Board Certified Criminal Trial Lawyer at Law Office of W.F. ”Casey” Ebsary, Jr. notes recent developments in Cell Phone Location Data used in …
www.centrallaw.com/cell-phone-tower-data-admissible/
Sep 11, 2010 Historical cell phone records of the tower sites used by a defendant were deemed admissible and efforts to suppress the records were for …

Computer Crimes Experts, Mobile Phones, Devices, and SD Card Storage

Computer Crimes Experts Cell Phone SD Forensics

Computer Crimes Experts, Cell Phones and SD cards

Recently I reviewed a computer crime case where the dates on files on an SD card seized by the police, examined by the police computer forensic laboratory, and by a defense expert in computer forensics showed some unusual patterns in the dates of files that allegedly contained contraband. Those files on the SD-card were later the basis of criminal charges and an arrest. There were claims of evidence spoliation. “Spoliation” is a fancy word for tampering. Sometimes a Computer Crimes Experts can come in handy. During a lengthy interrogation by the Prosecutor there were some answers given that may apply to virtually any cases involving data stored on a mobile phone SD card.

Questions and Answers from Computer Crimes Expert testimony on SD Storage Devices in Mobile Devices

 

What are hash values in SD cards and stored files?

 

“These are the hash values of that. That is a method that I use to be able to correlate that picture with the picture on the SD cards, things like that; but it’s a fingerprint. Every file has a unique fingerprint.”

What is the creation date on a file stored on an SD card?

 

“I have seen instances where if a file was moved to another system, the creation date is what the current date is of that system. Because, as far as that system’s concerned, hey, it was created on my system today.”

What about iPhone, where there are no SD storage devices?

 

“For example, with iPhone being a proprietary system, you’re — you’re talking about something that’s an encrypted system and we constantly stay abreast . . . . “-

Do both police and forensic examiners use Cellebrite?

 

“[W]e — as a company, in general, stay abreast of that, the changes there, as I’m sure your group has the same — same challenges. With that, we’re — we ‘ re always challenging our vendors. There’s three primary vendors we use, including Cellebrite, which you guys use, as well. But challenging them to stay abreast of it.”

What is the job of a computer forensic examiner in case involving cell phone data and SD storage devices?

 

“To look at it with the eyes of a computer forensic expert to determine whether the evidence being portrayed was accurate or if there was evidence being omitted or not looked at from a different way and we all know that when you’re looking at it from a prosecution point of view, you look at evidence from that angle. If you’re looking at it from a defense point of view, since I work both sides, I know I’m going to look at the evidence differently in cases because in one you’re trying to find underlying causes one way or another. So I felt my job in this was to look at the evidence to determine whether or not everything was being described accurately and completely.”

Are there different types of files stored on mobile device SD cards?

 

“When you talk about system files, it’s a little bit more complex. The system does many, many things to make your life work better on a computer. And storage locations could be temporary areas; the system just uses and works with. That’s very beneficial to us in a forensic area because that can be very telling as far as how the system was used, what the system is doing, who’s doing what and what’s automatic, what’s not, what’s user initiated, what’s system initiated, all that is good. You can tell that from the temporary areas. There’s also caching areas.”

What are Cache files on an SD card?

 

“Caching areas are when the computer does something and then it goes and does something else, it caches it out, caches something back in; that’s very telling of what’s going on in the system to us. Who initiated, whether it’s automatic, whether it’s deliberate, stuff like that. There is allocated resources, unallocated resources, deleted areas; there’s just a — just a plethora of stuff that the system does and there’s a lot of different storage locations. Now the ones that I’m focusing in on, for this particular case and this particular report, are the ones that, you know, give us telltale sign of something. And I would have to read it real quick here to know what we’re getting at. I was hoping you were going to ask something specific in here, but that’s basically an overview of what storage locations are.”

What is the significance of where files are stored on an SD Card?

 

“So storage locations, I gave you an example to help you understand how storage locations work, the difference between pictures and documents, stuff like that. The system is the same way. It does certain things, it will store them in different places. The other key point here then, also is that in — when you’re talking about the system storage locations, they’re not accessible by the user. These are areas that obviously if the user could access those, you could — you could destroy your system. But these are typically areas that are not accessible by the user. By us, yes, from a forensic point of view.”

Why are system storage files important?

 

“Because, depending on how the device acquired a particular piece of information, whether it be media or text or whatever, how it was — how it came to exist on the phone matters. And system storage can help us to determine that.”

Can date meta data on an SD storage device used on a phone be altered?

 

“I’ve seen people fool that and they’ll put a cell phone in a shield bag in which case it doesn’t make connection; and there is an app, I think, that can change the date. So there’s people that could do things like that but in these particular cases, these were active and that’s really not the issue that I want to get into. The problem is that depending on the software use or how things come about — and it’s called a feature. And there’s a feature that when you take a file and you put it onto a system, that it maintains the original creation date that that particular, let’s say photograph you made, was maintained. And it’s a feature because you want to know that the Christmas of 2004 occurred on December of 2004, not when you happened to move it over there. So it is a feature of something. But then there are some operations when you move things over, and I’ve seen it before because I’ll see stuff come to be on a system, and they’re milliseconds apart, the creation date. And I know that those were — that was a copy operation performed.”

“You plug in the SD card and the metadata is put on the SD card. Last access date in — in doing the correlation was — would be updated on the phone, as well. But let’s say, for instance, if you put
an image, a brand new image on there, and the creation date was last year and you put another image on there, maybe you copied three images and the way you copied it it happened to pick up the date of the computer which was, you know, maybe you changed the date of the computer and you wanted to show it to be last month. Then when you take that SD card and you plug it in the phone, you’re going to see one image with that date from last year as a create date and then you’re going to see three images, milliseconds apart, that are from last month. What I’m saying is that the phone becomes slave to the SD card as far as the metadata –“

Can computer crimes experts discover data files placed on a mobile device without the user’s knowledge?

 

“[J]ust realize that when I’m talking about the push, that the technology is there, that the . . . potential is there for stuff to be pushed on your computer. And of course, the user is oblivious to all this going on. And that’s why you could actually go to a website that had unfortunate information on it and your computer now is a recipient of that information and you, the user, are none the wiser.”

“Sometimes the user doesn’t even know they went somewhere. Sometimes in — in this world of malware and viral attacks and exploitation of compu — of people’s identities, there’s a lot of times — like, and I use the term unfortunate, is if you do a search, one thing these search engines do not do is assess where it’s going to take you and you could click on something and then it could actually take you to a site that doesn’t display anything but it certainly puts stuff on your computer and then redirects you to something else to show you what you think you wanted to see. There’s a lot of smoke and mirrors going on behind the scenes that the user’s not aware of. That’s the push technology I’m
talking about . . . .”

“Whether or not you saw it, whether or not you meant to go there, that’s — that does not — those two statements don’t come into play when it comes to push. . . . Push includes whatever the — and I’ll call it malicious in some cases, but whatever the site, or whatever the originating prospect that might be. It could be a server, it could be a site, it could be almost anything. Whatever it is, it will push on there
and I can’t tell you what that will be. In — I can tell you in general what it is. In general it’s thumbnails.’

“The fact that Windows does that, is a feature to allow you to operate better. But how many times have we heard about there being a hole, an exploited hole in Windows that Microsoft had to go in
and patch with a new release or with — with a new update they patched this hole or they discovered this — this whatever was open and they come in. You take a feature on something and you get a
website that exploits that feature, I think you kind of then answered your question because then okay, well whose fault is it? Well, it’s a feature of Windows to do this. But they’re — the reason it was written was to optimize web browsing, that’s it. Now to push big stuff on there, and push other stuff on there, when people are taking it to its limit and exploiting it and doing the wrong thing, then I’d say it’s the fault of the site.”

Spend 600 Months In Prison When Police Search Lost Cell Phone

Search Warrant Cell Phone

Search of Lost Cell Phone

What Happens When Police Search Your Lost Cell Phone That Has Illegal Material On It?

 

The story begins in a Walmart in Florida. The owner lost their phone at Walmart. After he left the phone, it was found, and the owner agreed to pick it up from the store. The owner of the phone failed to pick the phone up from the store. The store manager looked at the phone in an effort to find a photo of the owner. When the manager found contraband on the phone, she called the cops – police search lost cell phone.

Search Warrant for an Abandoned Cell Phone

 

Police search lost cell phone – The cops waited 23 days to get a search warrant. A Florida Court ruled that this did not constitute an unreasonable delay to obtain a search warrant. First, the court found that the defendants had hoped the store manager would not report the materials found on the phone to the police. Second, the phone owner had filed an insurance claim and replaced the phone with the exact same model. The decision to not retrieve the phone from the store, coupled with the filing of an insurance claim, and replacing the phone with the same model constituted an abandonment of ownership of the phone. Search and seizure law requires that those who challenge a search and seizure must have standing to challenge the search. In this case, the phone owner had no standing to challenge the search, the phone and any rights the owner had to challenge the search and seizure were gone. The court also addressed the Private Search Doctrine that supports searches by citizens, that otherwise might be illegal if performed by the police or the government.

Sentenced to 600 Months in Federal Prison

 

By the way, the court found that a 600 month sentence for the materials found on the phone was just fine. The phone owner entered a written plea agreement and the sentence was a possible outcome that while it was as harsh as the judge could impose, it was within the terms of the plea agreement.

Case Excerpts

 

“When Vo [store manager] failed to meet Sparks [phone owner] with the phone as the two had previously agreed,  Defendants knew how to find Vo to get their phone back. But Defendants did not return to their Walmart store and look for Vo. Nor did they ask for Walmart’s assistance in obtaining their phone, found in its store, by its employee. They also did not file a report with Walmart or the police complaining that Vo would not return their phone, despite their requests. Instead, they made a conscious decision to stop pursuing the phone, even though they knew how to get it back with reasonable effort. That decision—whether because Defendants hoped that Vo would not report them if they did not continue to seek the phone or because Defendants simply thought recovery of the phone was not worth their reasonable effort—can be viewed only as a deliberate decision to abandon the phone. Because Defendants abandoned their phone within three days of having lost it, they lack standing to challenge law enforcement’s 23-day delay between recovering the phone and obtaining a search warrant to search it.”

The Private-Search Doctrine

 

“The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. The protection the Fourth Amendment affords, however, extends to governmental action only; “it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S. Ct. 2395, 2404 (1980) (Blackmun, J., dissenting)). So once an individual’s expectation of privacy in particular information has been frustrated by a private individual, the Fourth Amendment does not prohibit law enforcement’s subsequent use of that information, even if obtained without a warrant. Id. at 116, 104 S. Ct. at 1656; see id. at 117, 104 S. Ct. at 1658-59.”

Read Complete Opinion Here: https://media.ca11.uscourts.gov/opinions/pub/files/201412143.pdf

Read More About Search And Seizure of A Cell Phone Here.

Read Even More About Search And Seizure of A CellPhone Here.

No Phone Zone – Jurors Must Log Off Says Florida Court

 

jurors, Cell Phone, iPhone, computer, cell phones, smartphones, tablets, laptops, computers, electronic devices

Jurors and Cell Phones

No Phone Zone for Jurors

“electronic devices will be removed from all members of a jury panel before jury deliberations begin”


Jurors and Cell Phones


In a mere 43 pages, the Florida Supreme Court has told judges, civil, and criminal defense lawyers how to address widespread use of electronic devices by jurors in courts. We now have guidance on what is meant by turning off these devices. There are very specific instructions to be given during trials. The instructions now tell jurors what to do with computers, tablets, and cell phones during breaks and recesses. Jurors also receive an explanation of why they are to be disconnected with the outside world during jury service.
 

What has Florida told lawyers and Judges about use of electronics by Jurors?


“The rule provides that electronic devices will be removed from all members of a jury panel before jury deliberations begin.  The presiding judge may remove the jurors’ electronic devices at other stages of the trial.  If electronic devices are removed from members of the jury panel during trial, the judge may order them returned during recesses.  If a jury panel is sequestered, the judge may decide whether to remove electronic devices during the entire period of sequestration.  The rule also makes clear that during court proceedings, jurors cannot use their electronic devices to take photos or videos, or to transmit or access data or text.  At all times, jurors are prohibited from using the devices to research information about the case or to communicate with others about the case or jury deliberations.”

What does the Court mean when Jurors are told to turn off electronic devices?


“All cell phones, computers, tablets or other types of electronic devices must be turned off while you are in the courtroom. Turned off means that the phone or other electronic device is actually off and not in a silent or vibrating mode.”

What are Jurors told about use of electronics in Court?


“Many of you have electronic devices such as cell phones, smartphones, tablets, and laptops, computers, and other electronic devices.  Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers.”
“When you are called to a courtroom, the judge will give you specific instructions on the use of electronic devices.  These rules are so important that the judge may tell you that you must turn off your cell phone or other electronic devices completely or that you cannot have your cell phone or electronic devices in the courtroom.  If someone needs to contact you in case of an emergency, the judge will provide you with a phone number where you can receive messages.”
“If the trial judge allows you to keep your cell phones, computers, or other electronic devices, you cannot use them to take photographs, video recordings, or audio recordings of the proceedings in the courtroom or your fellow jurors.  You must not use the many device to search the Internet or to find out anything related to any cases in the courthouse.”

Why are Jurors told to log off of cell phones, smartphones, tablets, and laptops, computers, and other electronic devices.?


“Why is this restriction imposed?  This restriction is imposed because jurors must decide the case without distraction and only on the evidence presented in the courtroom.  I know that, for some of you, these restrictions affect your normal daily activities and may require a change in the way you are used to communicating and perhaps even in the way you are used to learning.”
“If you investigate, research, or make inquiries on your own, the trial judge has no way to make sure that the information you obtain is proper for the case.  The parties likewise have no opportunity to dispute or challenge the accuracy of what you find.  Any independent investigation by a juror unfairly and improperly prevents the parties from having that opportunity our judicial system promises.”
“Between now and when you have been discharged from jury duty by the judge, you must not provide or receive / discuss any information about your jury service to / with anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications.”
“In this age of electronic communication,I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all.  Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.”
“After you are called to the courtroom, the judge will give you specific instructions about these matters.  The / A judge will tell you when you are released from this instruction.  Remember, these rules are designed to guarantee a fair trial.  It is important that you understand the rules as well as the impact on our system of justice if you fail to follow them.  If it is determined that any one of you has violated this rule, and conducted any type of independent research or investigation, it may result in a mistrial.  A mistrial would require the case to be tried again at great expense to the parties and the judicial system. The judge may also impose a penalty upon any juror who violates this instruction.  All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case. “

What happens with electronics when jurors take a break or recess?


“We are about to take [our first] [a] recess. Remember that all of the rules I have given you apply even when you are outside the courtroom, such as at recess. “
“Remember the basic rule:  Do not talk to anyone, including your fellow jurors, friends, family or co-workers about anything having to do with this trial, except to speak to court staff.  This means no e-mailing, text messaging, tweeting, blogging, or any other form of communication.”
“You cannot do any research about the case or look up any information about the case.  Remember to observe during our recess the other rules I gave you. If you become aware of any violation of any of these rules at all, notify court personnel of the violation.”
“After each recess, please double check to make sure [that your cell phone or other electronic device is turned off completely] [that you do not bring your cell phone or other electronic device into the courtroom or jury room].”

Cell Phone, cell phones, computer, computers, electronic devices, iPhone, jurors, laptops, smartphones, tablets,

Jury Instructions on Cell Phones and Electronic Devices

Read the Complete Criminal and Civil Instruction for Jurors and Cell Phones Here

Tampa Computer Trial Attorney – Lawyer on Computers in Court

Tampa Computer Trial Attorney on Computers in Court

Law Enforcement and attorneys for the other side have a team working against you. Why not have your own Forensics Team working for you? More than ninety percent (90%) of documents are now created electronically, and less than thirty percent (30%) of those electronic documents are ever converted to paper. Rules on preserving electronically stored information and strategies to recover that data make having a Forensic eDiscovery team more important than ever before.

 

Tampa Computer Trial Attorney - Lawyer
Police have specialized equipment analyzing original digital media such as hard drives, disks, and flash drives, and optical disk drives in the computer forensics lab. There is special hardware and software that retrieves evidence from cell phones, including text messages (SMS) and pictures. For computers, specialized software is used to examine the computers and extract the evidence. We can too.

 

We use a team of attorney(s) and forensics expert(s) to help sort through data used in prosecution of federal indictments and state charges, fraud, hacking, theft of trade secrets, and other forms of cybercrimes.

 

With surge in popularity of mobile devices we can now forensically retrieve Information from mobile devices.  We also provide help in searching corporate e-mail, personal e-mail, Short Message Service (SMS) text messages, personal notes, calendar entries, photographs, address books, and inbound and outbound call logs. This type of information can be invaluable to prove certain facts for a case.

Remember – an expert can help preserve the chain of custody and this data can then be used in litigation.

Computer in Court? Tell Me Your Story 813-222-2220 .

History of Cell Phone Searches

Cell Phone Search Warrant

Cell Phone Search Warrant, Cell Phone Search, Search and Seizure

Search Warrant
Cell Phone

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.


Cell Phone Search, Search and Seizure, Search Warrant


Cell Phone Search, Search and Seizure, Search Warrant

Cell Phone Search Warrant

Warrant Required
Mobile Devices
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 Cell 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 Floridalaw, 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 cell 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 cell 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 Phone 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.”

 

Cell Phone Searches – Supreme Court to Rule on Warrant Requirement

Cell Phone, Cell Phone Search

Cell Phone, Cell Phone Search


Cell Phone Searches – Supreme Court


Update: “Chief Justice John Roberts delivered the opinion of the Court, concluding that a warrant is required to search a mobile phone.[8] Roberts wrote that it fails the warrantless search test established in Chimel v. California.”


 

“The Supreme Court granted certiorari review in two similar cases, both used with evidence obtained by means of a warrantless search of a cell phone during a lawful arrest.

One friend has said, “Wow, the Supremes are taking a serious look at cell phone searches! There’s been talk for a while now about the problems courts have applying old standard to modern technology.   We may get a sea change in S&S law. Of course, we may not, too, but it’s really worth watching.  If you have a cell phone search case now, for goodness sake make your 4th Am motion and/or objections (track the language in these 2 cases).” Thanks DE for your thoughts on this issue.



In Riley v. California, No. 13-132, a state case, the question presented is:

Whether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone violated petitioner’s Fourth Amendment rights.

In United States v. Wurie,No. 13-212, the Feds appealed, the question presented is:

Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.
 The cases are Riley v. California, No. 13-132, and United States v. Wurie,No. 13-212.

Search Warrant | Cell Phone Update

Wurie, Cell Phone, Search, Warrant

Cell Phone, Wurie, Search, Warrant


Cell Phone Search Warrant Update


Florida Criminal and DUI Defense Attorney notes a Federal Court has lined up with the Florida Supreme Court in condemning warrantless cell phone searches “on a cell phone, carried on the person. Allowing the police to search that data without a warrant any time they conduct a lawful arrest would, in our view, create “a serious and recurring threat to the privacy of countless individuals .” Gant, 556 U.S. at 345; cf. United States v. Jones, 132 S.Ct. 945, 950 (2012)(“At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ “ (quoting Kyllo v. United States, 533 U.S. 27, 34 (2001))). We therefore reverse the denial of Wurie’s motion to suppress, vacate his conviction, and remand for further proceedings consistent with this opinion.”


 

 

Defense Attorney on Cell Phone Search | Evidence Suppressed

 Search and Seizure, Motion to Suppress Evidence, Cell Phone, Cell Phone Search, Search incident to arrest, text messages

Search and Seizure, Motion to Suppress Evidence, Cell Phone, Cell Phone Search, Search incident to arrest, text messages

Cell Phone Search Suppressed

Cell Phone Search | Evidence Suppressed


Criminal Defense Attorney / Lawyer notes a recent Cell Phone Search ruling on a Motion to Suppress Evidence, filed pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure. Search and seizure law can apply to cell phones. Lately cops have been searching the phones and calling them a Search incident to arrest. Sometimes cops claim they need to search a phone for the safety of the officer. One court just ruled that a cell phone seized incident to defendant’s arrest posed no risk to officer safety. The scope of a search has been limited, since a cellular telephone is not a container that could hold weapon. Sometimes police justify a search claiming that evidence will be destroyed. A court just ruled that once a phone was seized, there was no longer risk that defendant could destroy evidence in phone. The court concluded that a warrantless search of contents of cell phone was unlawful and a Motion to Suppress was granted.


Cell Phone Search Questions? Call Me Toll Free 1-877-793-9290.


Defense alleged an unlawful search of the Defendant’s cellular telephone including: texts, pictures, the call history, and/or observations made by Officer. Testimony showed cop “found the Defendant’s cell phone while searching his person at the scene, but then later examined the cell phone further at the police station while the Defendant was still being processed. Officer Clark testified that he found text messages regarding the sale of cocaine while he was looking through the Defendant’s phone.”


Cell Phone Court Ruling


Court ruled, “When an officer arrests someone who has a cell phone in their possession, here may very well be reason to suspect that the phone contains valuable information, particularly in drug-related arrests. The call logs and address books could help link a defendant to a particular drug transaction and could provide the identities of other persons involved in the illegal activity; however, these are exactly the types of situations where probable cause could be used to obtain a warrant. The reality is that most information stored on a cell phone will remain there long enough for a warrant to be secured and that numbers “lost” from recent call lists are readily obtainable from the service provider. Cell phones are outside the ambit of the search incident to arrest exception‘s reach because of their capacity for storing vast quantities of intimately personal data. If courts continue to allow the unfettered exploration of this personal data, then courts are permitting the government to execute an unwarranted search of the cell phone user’s life and habits. This intrusion cannot reasonably be justified by the rationales of officer safety and evidence preservation; therefore, a simple seizure of the cell phone must suffice until a warrant can be procured.”

The Court’s Ruling on the Cell Phone Search is Here.


Cell Phone Search Questions? Call Me Toll Free 1-877-793-9290.


Source: FLWSUPP 1805GLAS


Criminal Defense Attorney / Lawyer

Cell Phone Surveillance | Cell Tower Data | Judge’s Opinion

ECPA
Electronic Communications
Privacy Act

Author’s Comment: Your cell phone tells police a lot about you. A Judge recently provided written testimony about about the impact of the ECPA (Electronic Communications Privacy Act — that is a law that appears to be about anything but ensuring privacy of electronic communications). Title I of the ECPA 18 U.S.C.A. § 2510 allegedly protects wire, oral, and electronic communications while in transit. It was enacted to set down requirements for search warrants that are more stringent than in other settings. If you have issues or questions about this sweeping federal law, call me toll free at 1-877-793-9290.

Excerpts from the written testimony are below. We will be posting the complete testimony and will link to that for our readers.

“ECPA was passed in 1986 as a laudable attempt to balance the privacy rights of citizens and the legitimate interests of law enforcement, given the communications technology of that day.”

Author’s Comment: The ECPA provides that many of the requests and records are to remain secret. Title II of the ECPA, the Stored Communications Act (SCA) 18 U.S.C. §§ 2701 to 2712 protects communication held in electronic storage, most notably messages stored on computers.

 

“By contrast, the SCA does not require $ 2703(d) orders to be sealed, and allows for “preclusion of notice” to others only if there is reason to believe the investigation would be jeopardized or other adverse consequences would result. 18 U.S.C. §§ 2705(b)(l)-(5).”

 

“There are over 500 federal magistrate judges serving in district courts around the country. In addition to civil matters, our responsibilities on the criminal side generally include almost everything except conducting felony trials.”

 

“One of our chief functions is to issue search warrants and other orders in aid of criminal investigations. These include electronic surveillance orders for pen registers, trap and trace devices, tracking devices, 2703(d) orders for telephone and e-mail account records and activity.”

 

“With rare exceptions, ECPA orders pertain to ordinary crimes and criminals, not national security or terrorism cases.”

 

“The process is exparte, meaning only one party – law enforcement – appears before the magistrate judge. Since this is at the criminal investigation stage, no defendant has yet been charged so no defense counsel is there to challenge the government’s request. Likewise, no representative of the electronic service provider or the target phone’s subscriber is present. In fact, the orders routinely contain gag orders precluding the service provider from advising their customers that the government is accessing their cell phone or e-mail account records. The public rarely learns about these orders, even long after issuance, because they are routinely placed under indefinite (i.e., permanent) seal.”

 

“A reasonable estimate is that the total number of electronic surveillance orders issued at the federal level each year substantially exceeds 10,000”

 

“The application sought “the location of cell site sector (physical address) at call origination (for outbound calling), call termination (for incoming calls) and, if reasonably available, during the progress of a call,” in addition to “the strength, angle, and timing of the caller’s signal measured at two or more cell sites, as well as other system information such as a listing of all cell towers in the market area, switching technology, protocols, and network architecture.” 390 F. Supp. 2d at 749. “

 

“Under ECPA, secrecy is achieved in two-ways: (1) gag orders preventing service providers from informing customers about law enforcement monitoring of their cell phone and e-mail usage; and (2) sealing orders denying public access to judicial orders. Typically, electronic surveillance orders contain both types of provisions, but rarely impose an expiration period; instead, those orders remain in place “until further order of the court.”29 The catch is that there is no mechanism in place for the judge to revisit the sealing order. She does not retain jurisdiction over the case, which is not a “case” at all but an investigation that may or may not ripen into a real case.”

 

“The brunt of such secrecy is not necessarily borne by the surveillance targets who are ultimately charged with a crime. After all, they are entitled to discover the nature and source of the prosecution’s evidence, including electronic surveillance orders leading to arrest. Suppression motions are available in the event of a constitutional violation. But not everyone caught up in the web of electronic surveillance is ultimately charged with a crime. Any target is likely to call or be called by family, friends, associates, or even total strangers who have no connection to a criminal enterprise. Yet by the fortuity of a single call, these by-standers may be swept up in a criminal investigation, their cell phone use monitored and their location tracked in real time. Unlike criminal defendants, however, these presumably law abiding citizens will never find out. The phone company cannot tell them, and courthouse records will disclose nothing. Ordinarily, a citizen whose house or office is searched is provided a warrant duly signed by a judicial officer, giving notice of the particulars of the search.33 When a citizen wishes to challenge the legitimacy of a law enforcement search of his home pursuant to a warrant, the law affords due process for that purpose. But when searches are shrouded in permanent secrecy, as in most cases of electronic surveillance, due process becomes a dead letter. Such secrecy also has a pernicious impact on the judicial process . . . .”

Author’s Comment: There are proposals to restrict the scope of this federal law, but as of today, November 22, 2010, the law and its ability to gather a diverse array of data about your cell phone usage remains a frequently used tool of federal law enforcement, including DHS (Department of Homeland Security) , DEA (Drug Enforcement Administration), FBI (Federal Bureau of Investigation), State, and Local Law Enforcement.

If you have issues or questions about this sweeping federal law, call me toll free at 1-877-793-9290.


Cell Phone, Surveillance , SCA, Stored Communications Act , ECPA , 18 U.S.C.  § 2510, 18 U.S.C. § 2701, ,  Electronic Communications Privacy Act


Cell Phone Surveillance | Cell Tower Data 

 

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