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

Posted on December 15, 2016 by W.F. Casey Ebsary

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

cellphone Archives – Law Office of W.F. ”Casey” Ebsary Jr

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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 …

Search Warrant | I Phone | Cell Phone | Florida Attorney – Law Office …

/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.

Search Warrant for Cell Phone Handset – Required Florida Supreme …

/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 …

Defense Attorney on Cell Phone Search | Evidence Suppressed …

/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), …

Cell Phone Search – Law Office of W.F. ”Casey” Ebsary Jr

/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?

Cell Phone Searches – Supreme Court to Rule on Warrant …

/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 …

Cell Phone Search Incident to Arrest – Law Office of W.F. ”Casey …

/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 …

Search Warrant | Cell Phone Update – Law Office of W.F. ”Casey …

/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 …

Cell Phone and GPS Location Data in Criminal Prosecutions – Law …

/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 …

Cell Phone Tower Data Admissible – Law Office of W.F. ”Casey …

/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 …

Spend 600 Months In Prison When Police Search Lost Cell Phone

Posted on December 3, 2015 by W.F. Casey Ebsary

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 Even More About Search And Seizure of A CellPhone Here.

History of Cell Phone Searches

Posted on July 4, 2014 by W.F. Casey Ebsary

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

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.”

Cell Phone Search opinion is posted here .

Computer Law

Computer Law and Computer Crimes Lawyer in Tampa, Florida

In Tampa, Florida, having a Computer Law and Computer Crimes Lawyer is of paramount importance in today’s digitally driven landscape. These specialized attorneys are equipped to handle legal matters related to technology, data privacy, and cybercrimes. They play a crucial role in assisting individuals and businesses in navigating the complex web of computer laws and regulations.

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Computer Forensics

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Intellectual Property Theft

Intellectual Property Theft, often referred to as IP theft, is a grave violation of creators’ and innovators’ rights. It encompasses the unauthorized use, reproduction, or distribution of intellectual property, including patents, trademarks, copyrights, and trade secrets. IP theft can occur in various forms, such as counterfeiting products, plagiarism, software piracy, and corporate espionage.

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Unlawful Access to Networks and/or Data

Unlawful access to networks and/or data, commonly known as hacking, is a serious and pervasive cybercrime in the digital age. It involves unauthorized entry into computer systems, networks, or databases with the intent to steal, manipulate, or compromise sensitive information. These malicious activities can lead to significant harm, including data breaches, financial theft, privacy violations, and even national security threats.

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Search Warrant for Cell Phone Handset – Required Florida Supreme Court Says

Posted on May 2, 2013 by W.F. Casey Ebsary

Cell Phone Search, iPhone Search Warrant

Search Warrant for Cell Phone Handset –
Required
Florida Supreme Court Says

Search Warrant for Cell Phone Handset Required

Florida Supreme Court Says a police officer is not authorized to search through photographs and information within a cell phone that was on defendant at time of arrest. Cell phone had been separated from defendant at time of search. Factually, images from defendant’s cell phone depicted a weapon that resembled the gun stolen from convenience store, as well as defendant and his fiancee posing with stolen money packaged in manner described by the victim, a convenience store clerk.

Cops in the case properly separated and assumed possession of cell phone from defendantin search incident to arrest. The Florida Supreme Court held a warrant was required before information, data, and content of cell phone could be accessed and searched by law enforcement. Notwithstanding decisions of other courts, Conformity clause does not meanFlorida courts must apply U.S. Supreme Court’s holding in United States v. Robinson in this case.

The Florida Court reasoned that Robinson not factually or legally on point. Then in a stunner, the court found that the Good faith exception to exclusionary rule does not apply, since no bright-line rule exists for law enforcement officers to rely upon with regard to searches of electonic devices under facts of this case.

Search Warrant Gibson Guitars

Posted on September 2, 2011 by W.F. Casey Ebsary

Search Warrant, Gibson, Gibson Guitar, Gibson Search Warrant

Gibson Guitar Search Warrant

Gibson Guitars and The Lacey Act, 16 U.S.C. § 3372(a)(2)(B)(iii)

Gibson Search Warrant? Feds with nothing better to do spent a lot of time and money drafting this Affidavit for Search Warrant. Somehow, I don’t feel any safer.

UPDATE: “Gibson, fearing a bankrupting legal battle, settled and agreed to pay a $300,000 penalty to the U.S. Government. It also agreed to make a “community service payment” of $50,000 to the National Fish and Wildlife Foundation — to be used on research projects or tree-conservation activities. The feds in return agreed to let Gibson resume importing wood while they sought “clarification” from India.” According to Investor’s Business Daily.

Jump to End of Article to see Previous Federal Guitar-related Prosecutions.

Gibson Search Warrant Excerpts:

“The Lacey Act, 16 U.S.C. § 3372(a)(2)(B)(iii), makes it unlawful for any person to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant taken, possessed, transported or sold, in violation of any limitation under any law or regulation of any State, or under any foreign law, governing the export or transshipment of plants. Section 3371 defines the term plant and plants to mean any wild member of the plant kingdom, including roots, seeds, parts, or products thereof, and including trees from either natural or planted forest stands.

Gibson Guitar Affidavit for Search Warrant Download Here

8. Title 18, United States Code, Section 545, makes it unlawful for anyone to knowingly import or bring into the United States any merchandise contrary to law, or to receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law.

9. Countries generally establish laws and regulations related to the harvest (logging) and export of wood, timber or plants (forest products) in order to manage natural resources and regulate the commercialization of their nation’s natural resources.

10. The international community uses an “International Tariff Code” system or ITC, also known as the “Harmonized Schedule” or HS, to simplify international trade in commodities including plants and plant products. Most relevant to this case is HS Code 4407, “Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded, or end jointed, or a thickness exceeding 6mm.” India prohibits the export of products classified under HS Code 4407 for all plant species harvested in India, without exception.”

“14. Guitar bodies utilize veneers of various wood species. Veneers are typically large pieces of uniformly cut thin sheets of wood, defined by the harmonized tariff codes under the HS series 4408. Veneers are defined as being less than 6mm thick”

Gibson Search
Warrant
Affidavit

“The plant product imported was “Ebony fingerboards for guitars: Diospyros ebenum, harvested in India”. The final consignee was declared as GIBSON GUITAR, 641 Massman Dr, TN, with Herb Jenkins listed as the point of contact.”

“34. According to Matthews, since January 2010, GIBSON CUSTOM has used only Indian rosewood. Eugene Nix initially receives and inspects all the GIBSON CUSTOM rosewood and ebony upon import. Nix then kiln dries the wood andlor conditions the rosewood and ebony to prepare it for the manufacturing process. The rosewood and ebony is then shipped to GIBSON CUSTOM from the GIBSON ELECTRIC facilities when it is ready. Gibson purchasing managers are responsible for the order placement and purchase of specific species of sawn wood from selected venders. The following GIBSON GUITAR CORPORATION employees are responsible for the sourcing and procurement of rosewood and ebony for manufacturing at the different GIBSON GUITAR CORPORATION Divisions . . . .”

“31. SA Seiler conducted an interview with GIBSON GUITAR CORPORATION employee, Eugene Nix, on November 17, 2009. Nix is the wood products engineer for GIBSON GUITAR CORPORATION and is responsible for sourcing types and species of wood for manufacturing use by GIBSON GUITAR CORPORATION. In addition, Nix is responsible for inspection of the imported wood to evaluate its condition, properties, and quality. Nix also accomplished all kiln drying for imported wood received at the GIBSON ELECTRIC manufacturing facility in Nashville, Tennessee, including rosewood and ebony. Nix shipped dried wood to other Gibson divisions when the wood was ready for further manufacturing. The kiln used for drying wood is located in the rough mill, an adjacent building to 641 Massman Drive. The rough mill is marked as building 653 on Massman Drive. Nix stated that Gibson uses only Indian ebony in Gibson products (containing ebony). Nix further stated the following: Rosewood used by Gibson is Indian rosewood, although Gibson had used Madagascar rosewood and ebony in the past. According to Nix, all ebony and rosewood was stored at Red Arrow Delivery Service upon import and delivery to Nashville until GIBSON GUITAR CORPORATION was ready to have it picked up. Gibson’s purchasing managers are responsible for actually placing orders for rosewood and ebony from suppliers and Herb Jenkins was the senior purchasing manager at GIBSON ELECTRIC. Nix confirmed he kept electronic files and email correspondence concerning the sourcing, receipt, and use of rosewood and ebony by GIBSON GUITAR CORPORATION on his computer. ”

Computers Seized

“38. Your affiant is aware that computers are used to engage in business transactions that involve the trade of wildlife and plant species. A computer may have been used to store, generate, and print documents used in furtherance of the shipments of lndian ebony and lndian rosewood, which are in violation of the laws enumerated hereinabove. For example, THEODOR NAGEL GMBH would direct their United States sales representative, Hunter Trading Corporation, to send email notification to Red Arrow Delivery Service, to authorize the release of sawn rosewood and ebony to GIBSON GUITAR CORPOPRATION upon receipt of invoice payment. In another example, LUTHIER MERCANTILE INTERNATIONAL sent an email notification to Red Arrow Delivery Service to expect arrival of a 24 pallet shipment of lndian rosewood and ebony for GIBSON GUITAR CORPORATION.”

Previous Federal Guitar Cases

Guitar Hero Bandit Sentenced. A man who committed an … www.justice.gov/usao/cac/pressroom/pr2009/029.html

Second Texas man sentenced to 16 months in prison for …… Chinese nationals Fu Yiner and Wang Hong, who smuggled items made from sea turtle shell parts, including guitar picks violin bows, were … www.justice.gov/usao/co/press_releases/archive/2008/June08/6_20_08.html

Second Chinese National Pleads Guilty to …… As set forth in the indictment and acknowledged in today’s plea agreement, Fu knowingly sent four shipments of raw shell and guitar picks made … www.justice.gov/opa/pr/2008/January/08_enrd_018.html

Source for Update: https://www.investors.com/politics/editorials/gibson-guitar-raid-like-tea-party-intimidation/

Cell Phone Search Incident to Arrest

Posted on May 6, 2011 by W.F. Casey Ebsary

Cell Phone Search Warrant

Cell Phone Warrantless Search

Cell Phone Searches

Tampa Criminal Defense Attorney / Lawyer continues to follow recent developments in the search of cellular telephones / cell phones. 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 inadmissible at trial since they had been seized during a warrantless search.

The court ruled:

“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. Were we free to do so, we would find, given the advancement of technology with regards to cell phones and other similar portable electronic devices, officers may only search cell phones incident to arrest if it is reasonable to believe evidence relevant to the crime of arrest might be found on the phone. Here, there was no evidence the officer had such a reasonable belief.”

“Modern cell phones can contain as much memory as a personal computer and could conceivably contain the entirety of one’s personal photograph collection, home videos, music library, and reading library, as well as calendars, medical information, banking records, instant messaging, text messages, voicemail, call logs, and GPS history. Cell phones are also capable of accessing the internet and are, therefore, capable of accessing information beyond what is stored on the phone’s physical memory. For example, cell phones may also contain web browsing history, emails from work and personal accounts, and applications for accessing Facebook and other social networking sites. Essentially, cell phones can make the entirety of one’s personal life available for perusing by an officer every time someone is arrested for any offense.”

The complete Cell Phone Search opinion is posted here for Free.

Cell Phone Search

Feds on Twitter | 2702 Short Cut Search Warrant

Posted on January 10, 2011 by W.F. Casey Ebsary

What about the Feds on Twitter?

Most Twitter multimedia is handled by 3d party links. Twitter allows both public or private updates. On Twitter Direct messages are private and the sender can delete these messages. the feds noted that short URLs used to serve malicious links and code. Today we learned the feds will seek to recover direct messages and that when Twitter receives the request, they will comply and disclose that such a request has been made.

The Feds frequently use a 2702 request to short cut Search Warrant requirements. On the other hand, as of 2010, Yahoo has the following policy on 2702 requests from cybercrime investigators:

“Under 18 U.S.C. §§ 2702(b)(7) and 2702(c)(4) Yahoo! is permitted, but not required, to voluntarily disclose information, including contents of communications and customer records, to a federal, state, or local governmentalentity if Yahoo! believes in good faith that an emergency involving imminent danger of death or serious physical injury to any person requires such disclosure without delay.”

Cell Phone Tower Data Admissible

Posted on September 11, 2010 by W.F. Casey Ebsary

Search Warrant, Cell Phone, Cell Phone Tower,

Cell Phone Tower Data Admissible

“user of cell phone has no expectation of privacy in cell phone records of the cell towers”

Cell Phone Tower Location Data

Historical cell phone records of the tower sites used by a defendant were deemed admissible and efforts to suppress the records were for naught. The Florida Court found that the user of cell phone has no expectation of privacy in cell phone records of the cell towers used during phone calls. An affidavit by law enforcement stated that the cell site location would show where the defendant was located at the time he was using the phone within a half hour of the alleged crime.

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Source: 35 Fla. L. Weekly D63a

Cell Phone Tower Data Admissible

GPS Tracking Requires Search Warrant

Posted on August 7, 2010 by W.F. Casey Ebsary

GPS, Search Warrant, Tracker

GPS Tracking Needs Warrant

“police violated the Fourth Amendment prohibition of unreasonable searches by

tracking his movements 24 hours a day for four weeks with a

GPS device they had installed on his Jeep without a valid warrant”

GPS Trackers and the Fourth Amendment

Tampa Drug Charge Defense Lawyer, Attorney W.F. “Casey” Ebsary, Jr. reviewed an interesting appeals court decision where police put a GPS Tracking Device on a car and followed him for weeks. The defendant was arrested for Federal cocaine charges. Specifically, “conspiracy to distribute and to possess with intent to distribute five or more kilograms of cocaine and 50 or more grams of cocaine base.” The court summarized the case as involving “Evidence Obtained from GPS Device.”

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On a side note, California, has made it illegal for anyone except law enforcement to use a GPS to determine the location or movement of a person. In some jurisdictions, GPS tracking of a person’s location without that person’s knowledge is a violation of an individual’s reasonable expectation of privacy.” Some law enforcement agencies use “darts” a miniaturized GPS receiver, radio transmitter, and battery embedded in a sticky compound material. Cops shoot the darts at a vehicle and it sticks to the target tracking begins.

The Court further held “the whole of a person‘s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.”

The appeal centered on defense arguments that “his conviction should be overturned because the police violated the Fourth Amendment prohibition of unreasonable searches by tracking his movements 24 hours a day for four weeks with a GPS device they had installed on his Jeep without a valid warrant. We consider first whether that use of the device was a search and then, having concluded it was, consider whether it was reasonable and whether any error was harmless.” The court ruled that tracking with GPS was a search. A Search Warrant was required.

The Government used the GPS data to show a pattern of travels by the defendant. The Court mentioned , “This case itself illustrates how the sequence of a person‘s movements may reveal more than the individual movements of which it is composed. Having tracked Jones‘s movements for a month, the Government used the resulting pattern — not just the location of a particular ― stash house or Jones‘s movements on any one trip or even day — as evidence of Jones‘s involvement in the cocaine trafficking business. The pattern the Government would document with the GPS data was central to its presentation of the case . . . .” The court further noted, “The GPS data were essential to the Government‘s case. By combining them with Jones‘s cell-phone records the Government was able to paint a picture of Jones‘s movements that made credible the allegation that he was involved in drug trafficking.”

The Court also stated, “A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain ― ‘disconnected and anonymous’.” In closing the Court held, “Society recognizes Jones‘s expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation.” The court concluded its forty-one page opinion stating the cocaine trafficking defendant’s, “conviction is reversed because it was obtained with evidence procured in violation of the Fourth Amendment.”

The complete opinion is a free download here.

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