2. Law Enforcement Uses
Modern cellular phones offer tracking capabilities that may be used by law enforcement. It seems that cell phones (perhaps more than GPS devices) are implicated in a couple of different ways. If they have tracking devices in them, then they could be used to monitor movement. But they also capture content of communications through text messages and phone conversations. It appears that different legal issues arise with respect to the right to privacy and right against self-incrimination, depending on how or which type of cell phone evidence is going used. The ease with which law enforcement can obtain information from such systems raises interesting and new issues in privacy and the constitutional protections of the users of such devices and limitations of those seeking the information obtained by those devices.
•Text message and call data. Cell phone text messages that had been carefully deleted were recovered and used as evidence in a murder trial. A pastor of the Pentecostal congregation in the small community of Knubty was sentenced to life in prison for persuading one of his lovers (the au pair) to shoot and kill his wife and for trying to kill the husband of another mistress. Two days after the murder, the pastor's au pair, Sarah S., claimed that she did it. Despite her claims, the police believed she had an accomplice. The strongest evidence against the pastor was the extensive communication through text messages and voice calls between him and the au pair on the day of the murder and just before that. What they did not know was that their (anonymously sent and) carefully deleted text messages were possible to recover. Burnett & Hard ad Segerstad, The SMS Murder Mystery: The Dark side of technology, Safety & Security in a Networked World: Balancing Cyber Rights & Responsibilities (Sept. 2005) (for the online version of this article, go to http://www.oii.oc.ac.uk/microsites/cybersafety/extensions/pdfs/papers/robert_burnett.pdf), cited in Jansen, Delaitre & Moenner, OVercoming Impediments to Cell Phone Forensics, 41st Haw Int'l Conf on Sys Sciences (HICSS) (Jan. 2008), at htpp://csdl2.computer.org/comp/proceedings/hicss/2008/3075/00/30750483.pdf.
Note: However, the Ninth circuit has decided that users of text messaging devices such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider's network. Quon v Arch Wireless Operating Co, Inc. (9th Cir 2008) 529 F3d 892, rev'd on other grounds in City of Ontario V Quon (2010) _ US _, 177 L Ed 2d 216, 229, 130 S Ct 2619.
•Location Data. Mobile phone evidence led the police to look more closely at a suspect. In one case, the authorities checked a victim's phone and discovered when and where it had been switched off. The only place on that route where the phone could have logged on to the specific location from which it disengaged itself was inside or just outside the suspect's house. This evidence was believed to have forced the suspect to change his story to admit that the victims died in his bathroom. Summer, Mobile Phones - The New Fingerprints, BBC News Online (Dec. 18, 2003), available at htpp://newvote.bbc.co.uk1/hi/uk/3303637.stm, cited in Jansen, Delaitre & Moenner, Overcoming Impediments to Cell Phone Forensics, 41st Haw In't Conf on Sys Sciences (HICSS) (Jan. 2008), available at http://csdl2.computer.org/comp/proceedings/hicss/2008/3075/00/30750483.pdf. In another case, cell tower records placed the defendant along the route the victim had take on the day of his kidnaping and placed the defendant at or near the motel room where the victim had been kept and at the victim's bank the next day. People v Reyes (2009) 178 CA4th, 1188, 101 CR3d 109 (motion to suppress denied).
•Impeachment of alibi Testimony. Prosecution introduced records for defendant's cellular telephone at trial, showing that his location during the critical period was inconsistent with his testimony. People v Walker (2006) 139 CA4th 782, 791, 43 CR3d 257.
The Morales Law firm would like to thank Scientific Evidence in California Criminal Cases for sharing this information with us.
Part III - Posted on 10/23/13