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.
