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Search and seizure in the digital age

A recent study I made up for this post shows that 77% of Americans rely on their cell phones as their primary mode of communication.  Hence, the emergence of the Cell Phone Tower Guy.  He's become a fixture in high-profile criminal cases.  Called as a witness by the State, he gets up on the stand and draws a nice little diagram showing the towers that the defendant's cell phone hit off of, and when.  The finished diagram has a lot of dots right near the crime scene, at the time the crime was committed.

We'll talk about how to fight this, what the law looks like, and what could be a game-changer.

First, the science on this is a good bit sketchier than the prosecution would like you to believe, as this article points out.  If Cell Phone Tower Guy shows up on the State's witness list, start looking for your own expert.  If the prosecutor claims that CPTG isn't really an "expert," he's just going to show the jury all the hits, you call bullshit:  the only way that's relevant is if the cell phone hits off the nearest tower, and you need an expert to show that's not true.  Denying expert witness fees is one of the easiest ways to get reversed, and judges know that.  You'll get your expert.

Second, the law is not your friend here.  You are not going to win a Daubert argument, you are not going to win on admissibility, you are not going to win on the expert's lack of qualifications.  I have researched this topic for several cases and I have found a solitary one where the case was reversed because of the admission of cell phone testimony, and that wasn't in Ohio.  So, much as most every other factual issue at trial, if you're going to win the cell phone argument, it'll be in front of twelve people, not three.

Here's the possible game-changer:  in November, the Supreme Court held oral argument in Carpenter v. US.  The case presented a relatively simple issue:  do the police need a warrant to obtain a subscriber's cell phone records from the provider?  The link is to the SCOTUSblog cite for the case.  As you can see, many electrons have been killed to provide a full range of discussion of every conceivable issue that Carpenter presents, and then some; one link teases us with the promise of discussing the competing theories of granular analysis and 4th Amendment doctrine. 

I'm not going to crib off other people's work.  The Argument Analysis is the best one, and offers some hope that the Court is going to rule for Carpenter.

Here's my take:  I think it's all about the justices. 

One of the worst decisions in memory was Whren v. U.S., in which Souter wrote for the majority that if a police officer observed even the most minor traffic violation, and his reasons for doing so were clearly pretextual, it didn't matter.  Then there's Hudson v. Michigan, where Scalia writes the opinion declaring that a violation of the no-knock rule will no longer be subject to the exclusionary rule.  And let's not forget Kentucky v. King, the handiwork of Alito this time, approving the "knock and talk" tactic of police, going from apartment to apartment, knocking on doors to see if evidence of criminal activity might emerge.

What's the common strain there?  Maybe that the chances of any of those nine justices being stopped by the cops on a pretext, or have the police breaking into their house without warning, or pounding on their apartment doors, are the same as Congress declaring March Anal Sex Month.

Now, let's jump ahead a few years.  Then we run into U.S. v. Jones, where Scalia writes for a unanimous court that the police need a search warrant to place a GPS device on a car.  Then a couple years later, in Riley v. California, Roberts wrote for a unanimous Court that the police need a warrant to search the contents of a cell phone.

If you're still in a quandary about the point I'm making, let me add this tidbit.  During the oral argument in Jones, Roberts asked this question:

You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month?

I referred to Carpenter as a game-changer -- apparently, a lot of people who attend symposiums think it is -- but I tend to doubt it.  You know the scenes in Law and Order where Lenny and Nick go in to the judge to get a warrant, but the judge looks over the affidavit and tells them, "I'm  sorry, I just don't see enough here."  You know the scene I'm talking about?  The one that Has.  Never.  Happened.  In.  Real Life?

There are 34 judges on the common pleas court up here.  I'll bet ten of them have never even been asked to sign a search warrant. 

Yes, the prosecution will have to go through a few more hoops to get cell phone records.  A process that used to require five minutes of a secretary's time now takes a couple of hours to talk to the detectives, draft an affidavit, and send them off to look for a judge.  But they're not doing this for a B&E, they're doing it for murders, rapes, and multiple robberies, and that's worth an investment of a couple hours.

Still, if the justices' use of digital technology gives them a deeper appreciation of the concept of privacy, that's all to the good.

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