CP Ch. 20 Electronic Evidence Flashcards
Police may not intercept cell phone communications without:
a warrant.
Do police have a right to searched an ABANDONED cell phone?
Police may immediately search an abandoned cell phone.
Ex. defendant placed cell phone on an outdoor window sill and told detectives he did not want it anymore- valid to search
Police may immediately search a lost or misplaced cell phone to the extent:
the extent necessary to determine its owner. Beyond that, consent or warrant.
Ex. officer at scene of drug store break in found a cell phone in a snow bank; the officer properly searched it to locate the phone owner’s photo which, he realized, matched the man he had seen earlier.
May police search a cell phone incident to arrest?
No. Police may not search a cell phone incident to arrest. They need separate consent or a warrant because citizens have a significant expectation of privacy.
Police may not search a cell phone incident to arrest. They need separate consent or a warrant because citizens have a significant expectation of privacy. The author recommends: (5)
- Check for weapon- make sure phone is not disguised weapon
- View phone exterior (not a search) for texts and other information. Do not open or manipulate phone
- Answer or search if exigent circumstances (bomb threat, child abduction, etc)
- Secure if probable cause.
- Obtain consent or warrant
Is it a “search” to text a suspects phone?
No.
Officer may answer an offenders phone during a drug distribution or sexual enticement investigation to:
avoid losing evidence.
Investigator must testify why getting a warrant was impractical before answering suspects cell phione.
Absent exigent circumstances, police may seize a phone only if they have:
probable cause that it contains evidence.
At this point, officer may take steps to prevent the loss of evidence- such as turning off the device.
Is seizure justified if the cell phones, by themselves, can help prove an accomplice connection?
Yes.
Is seizure of a cell phone justified if it was likely used during the crime?
Yes.
Is an investigators opinion that criminals often use cell phones to communicate enough for probable case?
No.
Need additional facts to provide probable cause.
Once a cell phone is secure, officers should inform the defendant of his two options: (2)
Consent, or search warrant.
phrase in a way that lets them know phone will be seized for a longer period of time if warrant
If an officer tells a defendant that, if he doesn’t consent to a search, the officer will seek a warrant, eliminate the possibility of voluntary consent?
No.
voluntary consent may follow an officers statement that, if the suspect refuses, he will seek a warrant.
In order to ask for consent on the basis police will otherwise apply for a warrant , police must have:
Probable cause for a warrant to begin with.
Is signing a consent form necessary for the consent to be valid, even if given during a recorded interview.
No.
Ex. If a suspect consents clearly during a recorded interview, there is no need to have him or her sign a form. The recording is positive proof.
Cell phones:
Consent to search ends when:
the officer returns the phone.
Are general descriptions of possible evidence probable cause to search a cell phone?
No.
Affidavit including statements such as “the cell phone may contain..” or “may reveal information” are speculative and do not provide probable cause. Need specific information linking the cell phone to the crime.
Can police use internet research to gain information that supports a search warrant?
Yes.
Ex. detective researching “pen cameras” on amazon.com in Sexual surveillance case
True of false:
Police need separate warrants in order to seize AND search a cell phone.
False.
Only one warrant is necessary to seize AND search a cell phone.
Search warrants for cell phones:
The affidavit should state a date range for the relevant dates. An affidavit must mention:
a beginning and end date for potential evidence.
- The affidavit should also specify the type of files that will contain evidence relating to the crime under investigation.
Search warrants for cell phones:
Must the affidavit specify the types of files to be search (photographs, text messages, contact information, etc)?
Yes.
Search warrant for cell phone:
The best practice is to incorporate a (blank) into the warrant application or, atleast, document the one used during the warrant’s execution.
Minimization protocol.
Note: Describing how investigators plan to limit their electronic search is important to courts.
This describes the manner in which technicians limit their inspection to potentially relevant information. It often includes the software and “search terms”.
Minimization protocol.
A warrant for a phone with an assigned number permits police to:
conduct a quick search to confirm its number. (check call log, call the phone and see if it rings, etc.)
Electronic evidence, including cell phones, may be examined beyond:
beyond 7 days.
Officer simply need to list the seized phones on their warrant return. The forensic experts then have a reasonable period of time, beyond 7 days, to complete their examination.
Under Article 12, what is the standard of evidence to prove that a defendant can access the device in order to otain a court order directing him to decrypt computer files, enter his passcode, or apply his finger to a scanner.
Proof beyond a reasonable doubt.
essentially, to get a court order the make defendant unlock his phone, police must prove beyond a reasonable doubt that it is the defendant’s phone that he uses regularly. Multiple other people using the phone is irrelevant under Jones case.
(“Access” here means to unlock/get into the phone)
If the suspects attorney has the cell phone, police need to:
Get a warrant.
Not a subpoena. Get a warrant to search a lawyers office for evidence because there is a risk that they will observe materials protected by attorney client privilege. Always consult with a prosecutor before doing this.
A search of digital camera images requires:
a warrant.
While there is some concern that cell phones will be remotely wiped or data- encrypted, there is less risk with digital cameras.
Digital camera images likely document the nature of a relationship, which provides (blank) for a warrant following a domestic violence murder.
probable cause.
Administrative subpeona for phone or computer records:
The Attorney General, a district attorney, or one of their assistants may obtain records from a telephone or computer service company based on reasonable suspicion that the records:
“are relevants and material to an on going investigation”
The demand must come from a prosecutor, not a police officer.
Administrative subpeona for phone or computer records:
The Attorney General, a district attorney, or one of their assistants may obtain records from a telephone or computer service company based on reasonable suspicion that the records “are relevants and material to an on going investigation”. The company must deliver records within:
14 days.
(unless the time period is reduced or increased by court order)
Administrative subpeona for phone or computer records:
The Attorney General, a district attorney, or one of their assistants may obtain records from a telephone or computer service company based on reasonable suspicion that the records “are relevants and material to an on going investigation”. The demand must come from a prosecutor, not a police officer. The company must deliver records within 14 days. The records (ex. subscriber’s name and address, and a log of calls) require no judicial authorization because :
customers have a limited expectation of privacy in the phone and computer records they know a commercial carrier keeps.
** However, no content based information (emails, texts, websites accessed) may be disclosed under an administrative subpoena.
Phone and computer records:
An administrative subpoena is only required if there is a (blank) for records
Demand.
No subpoena necessary if voluntarily disclosed based on exigent circumstances.
Phone and computer records:
Out-of-state records by warrant. 276 Sec 1B provides that a 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 (blank) unless the court orders otherwise; and the corporation must provide an :
affidavit of authenticity for the records.
Note: this law also requires that Massachusetts corporations respond to out of state subpoenas in the same manner.
- this same rule applies to grand jury, trial, and administrative subpoenas- 14 days!
Police may typically search a computer associated with an:
IP address.
Ex. Comm V Molina- search warrant for an entire apartment was proper because anyone in the apartment could have been using the IP address for child porn. Since the files could easily been transferred between devices at the same location, all devices present could be searched.
Do police have to determine who was using an IP address in order to have probable cause for a search warrant ?
No.
The fact that somebody other than the subscriber could be using the same IP address does not defeat probable cause. The issue is whether the physical address contained evidence.
Electronic evidence may be examined:
Beyond 7 days.
Forensic experts have a reasonable amount of time beyond 7 days to complete their examination.
Police selection of targets cannot be motivated by:
Bias.
Under Article 14, a defendant’s posts on social media require:
Privacy analysis.
SJC declined to adopt a bright line rule in the case provided in the book. Instead, the court said the facts concerning:(1) a users efforts to maintain privacy and (2) any attempts by law enforcement at deception are relevant in evaluating whether police surveillance (of social media) was a search necessitating probable cause or a warrant.
(Blank) is necessary to prove the defendant wrote an email, instant message, text, facebook post, or other electronic communication.
Confirmation.
Evidence that a defendant’s name appears as the author, or that the communication originated from his account, is insufficient proof he was the author. There must be additional “confirming circumstances”
Many factors, but included are personal references, writing style, etc.
Confirmation is necessary to prove the defendant wrote an email, instant message, text, facebook post, or other electronic communication. If relevant (blank) must be proven.
timing of communication
Ex. before or after 209A was served
While police do not need a warrant to view evidence already observed by a private party, they do need a warrant to:
to expand their search of the device.
Ex. officer could properly examine materials initially discovered by a private party who was not acting as his agent (computer tech found child porn on customers computer). Officer properly got a warrant to search defendants house for the backed up hard drive/ thumb drive.
Defendant’s friend conducted a private search and showed police what he found on is friends computer. The friend then opened more computer files for the investigating officer. Proper or improper?
Police could not expand the scope of the friend’s initial search. Warrant and resulting evidence had to be suppressed.
True or false:
A defendant cannot complain when police get his email, text, or other information by lawfully accessing another person’s account.
True.
No expectation of privacy in the account of another.
If a letter, email, or text is sent to another, the sender’s expectation of privacy ends on delivery.
True or false:
Police may routinely activate their Body Worn Cameras and review footage prior to writing their reports and testifying in court
TRUE.
Ex. was valid for officer to review footage to confirm the background (bedroom) captured on a call was the same as in a social media post with defendant holding a firearm two weeks later.
**Contradictory to the two reasons an officer may review footage in the book
According to the SJC, there are three reasons to record police encounter with citizens. What are they?
- Protect police officers from false allegations of misconduct.
- Ensure police accountability.
- Preserve a record or police-citizen interaction.
Is body worn camera recording during a domestic response considered a search?
No.
BWC, in areas where officer is lawfully present, is not a search. Recording shows only what officer could see in plain view, while lawfully present.
A Body Worn Camera may be routinely reviewed without a warrant by: (2)
- An officer writing a report and/or preparing for court; and/or
- A supervisor assessing a citizen’s complaint or an officer’s performance.
Is a search warrant required to review body cam video from an unrelated investigation?
Yes.
Whatever the initial justification, a citizen expects that a video created during a lawful police visit will not be reviewed for reasons unrelated to that visit without proper legal authorization.
True or false:
The wiretap statute does not prohibit police use of a Body Worn Camera to record a victim’s statement.
True.
The wiretap statute makes it clear that it’s goal is to prohibit secret eavesdropping on private conversations, not police recording of victims- especially when a victim knows the officer is taking notes during the conversation (as was the case in the book example).
May witnesses testify to observations made while viewing a video monitor?
Yes.
If video is not recording or if the video is lost, witnesses (including officers) may testify based on what they saw at the time of viewing. If officer, must describe how they knew it pertained to the defendant’s criminal case.
What may authenticate an officer’s cell phone recording of a surveillance video?
The officer’s testimony.
May police present evidence about the quality of video surveillance?
Yes.
Ex. video made a dark colored sweatshirt look light. Sgt had an officer walk in front of camera, and showed the images from this in court as a demonstration.
- the trial judge has discretion to admit evidence of this kind, or not.
Police may install a pole camera to: (2)
- obtain evidence of a crime
- aid in the apprehension of a criminal
ex. police had proof defendant possessed child porn, but they needed a pole camera to learn what apartment he lived in.
Note: Article 14 requires warrant for a pole camera that closely monitors a dwelling.
Article 14 requires a warrant for a pole camera that:
closely monitors a dwelling.
Whether police need a warrant for targeted video surveillance depends on: (5)
- Duration (ex. 13 days for pole camera was search requiring warrant)
- Whether it is continuous or intermittent
- Whether it may be monitored live by a user
- Whether it can gather information in quantities that would be difficult for a human to compile and analyze
- The level of visual detail
Officers must request a facial recognition search (blank)
In writing.
Should contact State Police Fraud Investigation Unit.
Facial recognition: Officers need a court order supported by (blank) that a facial recognition search is relevant- and important to an ongoing criminal investigation, or to mitigate a substantial risk of harm to any individual or group of people.
Reasonable suspicion.
Officers need a court order supported by reasonable suspicion that a facial recognition search is relevant.
Officers need a court order supported by reasonable suspicion that a facial recognition search is relevant and important to an (blank), or to mitigate a (blank)
important to an ongoing criminal investigation, or to mitigate a substantial risk of harm to any individual or group of people.
Who does NOT need a court order or a written request when “performing investigatory functions related to the issuance of identification documents by the registry of motor vehicle” ?
The State Police.
Do officers need a court order to use facial recognition to identify a deceased person?
No.
Also do not need a court order to use facial recognition to prevent substantial risk of harm to any individual or groups, PROVIDED the written request to the agency performing the search presents reasonable suspicion of an emergency.
