20. Electronic Evidence Flashcards
Intercepting calls, cell phones, and digital devices
The police may not intercept cell phone communications without a warrant
Abandoned or lost phones
Police may immediately search an abandoned cell phone. Police may immediately search a lost or misplaced cell phone to the extent necessary to determine its owner.
Phones seized by police
Police may not search a cell phone incident to arrest. They need separate consents, or a warrant, because citizens have a significant expectation of privacy.
Never assume a phone is a phone
Any hard object may be seized as a weapon during a search incident to arrest, and the physical characteristics of a cell phone may be checked due to determine whether it conseals a weapon
View phones, exterior
It is not a search to view the outside of a suspect phone or for texts or other information. It is also not a search to text a suspect phone.
Answer or search a phone, if exigent circumstances exist
Exigent circumstances may justify answering a phone, and or conducting a warrantless search page 20–2
Secure a phone only if probable cause
Absent, exigent circumstances, police may seize a phone only if they have probable cause that it contains evidence. At this point officers may take steps to prevent the loss of evidence, such as turning off the device.
Seizure of phones justified when
Probable cause exists.
By themselves can help proof accomplice connection also justified if cell phones likely used during the crime
Once the phone is secured through probable cause, then…
Obtain consent to search or insist on a warrant. you should inform the defendant of those two options
In order to ask for consent, what level of information do you need?
In order to ask for consent on the basis, that police will otherwise apply for a warrant, police must have PROBABLE CAUSE for a warrant to begin with
Consent to search a phone ends when
The officer returns the phone
How many warrants do I need to search & seize a cell phone?
Only 1 warrant is necessary to seize and search a phone. The affidavit should state a date range for the relevant events. The affidavit should also specify the type of files that will contain evidence relating to the crime under investigation.
Best practices when applying for a warrant for a cell phone (type of protocol described)
Incorporate a MINIMIZATION PROTOCOL which describes the manner in which technicians limit their inspection to potentially relevant information. It often includes the software and search terms, describing how investigators plan to limit their electronic search
A warrant for a phone with an assigned number
Permits Police to conduct a quick search to confirm its number
Cell phones and electronic evidence timeframe for examination
May be examined beyond 7 days. forensic experts, have a reasonable period of time beyond 7 days to complete their examination
Court order for access to decrypt computer files, level of information needed to compel suspect entry into device
PROOF BEYOND A REASONABLE DOUBT that a defendant can access the device in order to obtain a court order, directing him to decrypt computer files, enter his passcode or apply his finger to a scanner.
This is known as a Gelfgat order.
If you find out the suspect attorney has his phone
Get a WARRANT not a subpoena to search a lawyers office for evidence page 20–6
Digital camera searches & level of information needed.
The search of a digital camera image requires a warrant. Digital camera, images likely contain, and document, the nature of a relationship which provides PROBABLE CAUSE for a warrant, a domestic violence murder.
What document is needed for phone or computer records and what is the level of information needed?
An Administrative Subpoena
Attorney, general, district attorney, or one of their assistance may obtain records from a telephone or computer service company based on REASONABLE SUSPICION This demand must come from a prosecutor and not a police officer.
When is an administrative subpoena is not necessary?
If voluntary disclosure based on exigent circumstances.
A subpoena is not required, unless there is a demand for records sometimes a company provider can supply in good faith that exigent circumstances warranted producing the documents.
Out of state records by warrant how many days for a response?
14 day response required.
Massachusetts court may issue a search warrant to an out of state corporation for records of electronic communications and computer services. The corporation must respond within 14 days and the corporation must provide an affidavit of authenticity for the records. Massachusetts must comply with this request from other out-of-state agencies.
Computers associated with an IP address
Police may search any computers associated with an IP address. They do not have to determine who is using the IP address and the electronic evidence.
May be examined beyond 7 days page 20–8.
Social media
Under article 14, a defendants post on social media require privacy analysis by police
Defendants possession of a firearm in Snapchat video, supported a search warrant
See page 20–9 for more information
Linking communication to defendant
Confirmation is necessary to prove that the defendant wrote an email instant message text Facebook or other electronic communication
Third-party electronic evidence
Police do not need a warrant when evidence already observed by a private party.
However, they do need a warrant to expand their search of the device.
Body worn camera video surveillance
When done for a new investigation, police must get a search warrant to review a BWC recording made inside a home
SJC’s 3 reasons to record police encounters with citizens.
Body worn cameras.
P-Protect Police
E-Ensure Accountability
P- Preserve Record
PEP
- Protect police officers, from false allegations of misconduct.
- Ensure police accountability.
- Preserve a record of police civilian interaction.
BWC recordings during a domestic and/or where lawfully present. Is this a search?
BWC recordings where lawfully present is not a search however, a warrant is required to review body camera video for an unrelated investigation
SJC proper purposes for viewing BWC recordings without a warrant
An officer writing a report of an incident may review a BWC video in order to write accurately, a supervisor may access video to assess a Citizens complaint, or an officer’s performance
Non-targeted surveillance
The SJC notes that officers appropriately have relied on non-targeted videos to identify and apprehend suspects.
Non-targeted surveillance cameras, view or record activity in public in private spaces constantly.
Witnesses may testify to observations made while viewing the video monitor. an officer’s testimony may authenticate his cell phone recording of a surveillance video. Police may present evidence about the quality of video surveillance.
Targeted surveillance
Police may install a pole camera to obtain evidence of crime, or to aid in the apprehension of criminal.
Do you need a warrant for pole camera that closely monitors a dwelling?
Article 14 requires a warrant for a pole camera that closely monitors a dwelling.
Court considerations for targeted video surveillance depends on
Its duration, 13 DAYS for pole camera is search requiring warrant. Whether it’s continuous or intermittent, whether it’s may be monitored by a live, user whether it can gather information in quantities, and the level of visual detail captured
How many days duration for pole camera needed for search warrant?
13 days
Facial recognition
Under chapter 6 section 22 officers shall only request a facial recognition search in writing from the registry of motor vehicles, state police, or FBI.
Facial recognition requirements & level of information.
Officers need a court order, supported by reasonable suspicion that a facial recognition search is relevant and material. However, officers do not need a court order to identify a deceased person, or to prevent a substantial risk of harm to any individual or group, provided the written request to the agency performing the search presents reasonable suspicion of an emergency.
Facial recognition, state police exemption
The state police do not have to obtain a court order or provide a written request when performing investigatory functions related to the issuance of identification documents by the RMV.
State police assigned to the RMV are able to assist, law-enforcement officers with proper request for facial recognition.
Facial recognition, documentation
Law-enforcement agencies must document each facial recognition search and provide information quarterly to EOPSS executive office of public safety, and security with details of search.
Automatic license plate, reader, (ALPRS) limited use, do you need a warrant?
Limited use of an automatic license plate reader is not a search requiring a warrant
Automatic license plate, reader on Bourne and Sagamore bridges
The records are preserved for one year and available for law-enforcement. Use the system permits investigators to hold registration numbers to a hot list so that they will get a live notification when the plate crosses the bridges. 
Charlie card data, warrant needed?
No warrant required for limited search of Charlie card data.
Search warrants and cell site location information CSLI
To acquire, historical cellular site, location, information officers must obtain a search warrant.
A police request to a company for CSLI MAY NOT take the place of a search warrant
Typical scope of the CSLI data request, how many weeks?
The SCOPE of the data request depends on the crime being investigated, but it should typically be for NO more than 2 WEEKS
Cell phone pings in emergencies
This is the ability to provide the location of a phone in real time. This is authorized without a warrant, if the police confront an emergency.
Cellular phone pings after an emergency
Once the emergency is over, Police must still obtain a warrant to take formal custody of records related to the ping if necessary. Defendant may not typically challenge CSLI, or the ping of another’s phone CSLI admissible as a business record with expert testimony.
Do you need a warrant for a StingRay cell site simulator?
Yes, warrant needed. This device tricks a phone into sending its location information.
Do you need a warrant for cell phone computer apps that track/locate a stolen phone?
No need for a search warrant OR expert testimony in court
CSLI tower dumps
Officers must obtain a search warrant from a judge before acquiring tower dumps of CSLI tower dumps provide investigators with CSLI, for all phones that are connected to a specific cell tower. This generates a timestamp record known as CSLI.
Tens of thousands of phones connect to these.
Types of CSLI (2 types)
- TELEPHONE
- REGISTRATION
Telephone call CSLI occurs when a person uses their phone to place or receive a call or text.
Registration CSLI, occurs without any action by the user. The reason is that cell phones regularly connect to the nearest cell site by process known as registration.
A TOWER DUMP search warrant AFFIDAVIT MUST contain (level of information):
PROBABLE CAUSE - A high standard, b/c volume of information.
JUDGE ISSUED (doesn’t specify superior or district); unlike wiretap affidavit which is a Superior Court Judge.
…that CSLI, will aid in the apprehension of a criminal or provide evidence of a crime. Provide a factual basis that a suspect use their cell phone during the relevant time. State that the phone number is revealed by CSLI will only be examined as a result of cross, referencing. They relate to more than one location and time or offense occurred present a protocol to dispose of innocent third-party information given to Police as part of the tower dump.
Affidavit must also include:
- State that numbers reveled by CSLI will only be examined as a result of cross-referencing they are linked to more than one location & time where offense occurred.
- Present a protocol to dispose of innocent third-party info given to police as part of the tower dump.
GPS tracking system
Monitors and records, the location of a vehicle without the owners knowledge. Need PC.
GPS tracking police initiated investigation requirements (level of information and number of days authorized to monitor)
Police must obtain a warrant in order to install and monitor GPS tracking device. The affidavit for a GPS warrant must establish probable cause. The GPS warrant may authorize monitoring for no more than 15 DAYS from the date of the warrant issues. Police may renew GPS warrants in additional 15 day increments.
Does a vehicle passenger in addition to the owner and operator have STANDING to challenge GPS monitoring?
Yes because he has reasonable expectation that his movements will not be subjected to extended government surveillance, for this reason officers should obtain a warrant even when they install a GPS unit and their informant’s car during their investigation
Pre equipped GPS system install installation on a vehicle
Massachusetts will probably allow police to tract vehicles pre-equipped GPS system without a warrant example Police used GPS without a warrant to locate the victims truck, which the defendant had purchased with a counterfeit check.
Do I need a warrant for probation GPS records?
NO. Police MAY obtain post-conviction historical GPS data from probation WITHOUT a warrant
Can I obtain pre-trial GPS data without a warrant?
Police probably can obtain pre-trial GPS data without a warrant (page 20–22).
This is because a defendant can be placed on GPS monitoring before trial.
Is it a crime for a private citizen to initiate an investigation in Massachusetts?
At present, it is not a crime in Massachusetts for a private person to electronically monitor the movements of another private person.
However, if there’s sufficient evidence, criminal harassment may be charged.
What is a mosaic analysis?
As new technology increases the information, Police can assemble the SJC limits how much publicly, available information police can obtain without a warrant
Tips for assessing public information without a warrant
Take the smallest bites possible to develop probable cause then get a search warrant for more
Can a private citizen record another private citizen? Secret recordings and the wire tap statute, chapter 272 section 99
No. There are civil and criminal prohibitions against unauthorized recordings,
Chapter 272, section 99 punishes any person who willfully and secretly records or attempts to record oral communications
Chapter 272, section 99 the Wire Tap Statue
Only covers oral communications even when combined with video, it is the audio portion that is a felony
Commonwealth, vs Wright page 20–24
Nonconsensual interceptions
Occur when none of the parties to the conversation know they are being recorded.
Private parties are never authorized to do this law-enforcement officers may only do this with a wire tap warrant per c. 272 s. 99
One-party consensual interceptions
Occur when at least one party knows the conversation is recorded and consents to that fact.
Most secret recordings fall into this category.
Private citizens and secret recordings
May not secretly record other people however, Police may be secretly recorded in the public performance of their duties by private citizens or group entities, such as project veritas
Citizen, recording police openly in public
Citizens may openly record Officers in public as long as they do not interfere with police operations. The first amendment gives citizens the right to document police activities. The right to film may be subject to reasonable place in manner restrictions by the police.
Exception to the non-consensual recording rules.
Recording of police in a public place
If the need for privacy…officer should move to a private location to preserve the conversational privacy of a victim or witness
Response to citizens recording the police in a public space
Investigative detention is a proper response to filming police and suspicious circumstances
Telephone equipment exception to secret recordings
The definition of a device does not include any telephone equipment installed in the ordinary course of business.
An office intercom is exempt. A booking room is exempt and a phone extension with no recording is exempt (page 20–26).
Nonconsensual interceptions by law-enforcement.
Who approves this warrant and what specific offenses does it involve?
For the nonconsensual interceptions of conversations investigators must comply with the strict requirements of chapter 272 section 99 and obtain a wire tap warrant.
This warrant must be presented to a superior court judge, and must involve designated offenses.
Designated offenses for a WIRE TAP investigation:
The various offenses include:
Violence, gaming, prostitution, judicial integrity (not a misprint), narcotics, extortion, and bribery.
Chapter 272, Section 99 Wire Tap warrant requirements:
WARRANT APPLICATION MUST BE PRESENTED TO A SUPERIOR COURT JUDGE
The affidavit must present a REASONABLE SUSPICION that the underlying offense involved organized crime organized crime is a continuing conspiracy among discipline groups to engage in supplying illegal goods and services.
Only specifically designated prosecutors may apply after receiving written authorization from a district attorney, or the attorney general.
Wire Tap: Must prove less intrusive methods are inadequate
Since a wire tap is an extraordinary investigative method the burden is on law enforcement to demonstrate less intrusive methods are inadequate
Chapter 272, section 99 Wire Tap affidavit requirements continued…
The affidavit must identify the particular individuals and phone lines to be monitored.
A wire tap may permit the interception of cell phone calls and text messages.
Prosecutors may apply for a broader coverage. if they learn about new kinds of criminal activity
A warrant may authorize secret entry to install a listening device (In Tony’s Sorprano’s basement)
How many days to execute a wire tap once equipment has been installed?
Wiretap must be executed within 30 days of equipment installation listening time is limited to 15 consecutive days within that 30 day period court may grant 15 day extension upon application
What is the listening time limit in days within the above equipment install has been done?
15 days
Wiretap warrant return times and who does it go to?
Tape return within 7 days…the return goes to the judge issued the warrant.
Wire Tap records for trial
Chapter 272, section 99 mandates that the defendant receive records of the interceptions at least 30 DAYS before trial. This rule is strictly enforced.
Chapter 272, section 99, & Pen registers in Cross Frame Traps
A 272 section 99 wire tap warrant is required for these devices but if a wire tap warrant is already granted, no need to get an additional one for these devices
One-Party interceptions by Law Enforcement
Chapter 272 section 99 authorizes the warrantless interception of oral communication under the supervision of a law-enforcement officer.
The requirements are investigating a DESIGNATED OFFENSE when at least one party participants in the conversation CONSENTS to its interception, and the officer has REASONABLE SUSPICION that the OFFENSE involves organized crime.
However, MSP P&P requires a warrant in one-party interceptions (Comm v. Blood) INV-20, pg. 2
Do I need a blood warrant inside a dwelling in Massachusetts?
YES! Massachusetts Article 14 PROHIBITS Secretly recording conversations inside a suspect’s dwelling without a blood warrant
BLOOD WARRANT NEEDED INSIDE DWELLING!!!!
Exceptions to the blood warrant:
- Federal investigation.
- Officer safety
- Outside the suspect dwelling.
- Exigent circumstances.
Consequences of a UNLAWFUL interception
Unlawful recording by government officials or their agents are suppressed and so is the testimony of any individuals who listen to the unlawful recording
