Can Police Track Your Phone?

January 8, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

The short answer is yes – but there are ever increasing legal hurdles in law enforcement’s way.  The issue is highly complex, evolving and will continue to evolve as technology changes society.  No page-long blog will do the topic justice but I hope to give you at least a basic legal primer.

The 4th Amendment to the US Constitution is your right to be free from “unreasonable” searches and seizures from your government.  Tracking a person’s phone either in real-time or after the fact has been the subject of intense legal scrutiny for some time now.

Is Tracking Your Phone a Search Within the Meaning of the 4th Amendment?

Courts agree inspecting the contents of your phone, wiretapping a phone call, or affixing a GPS monitor to a persons vehicle are “searches” within the meaning of the 4th amendment.  It’s taken some time for courts establish these norms but they have all one by one been accepted.

Much of what constitutes a “search” hinges on what we consider our own “expectation of privacy.”  We all have a much higher expectation of privacy in our night stand drawer than in our bag we’re bringing on a plane.  So the courts have had to answer the question of where does the smart-phone and the information rank between the two extremes?

The answer is different today than it was in 2005 because of the advances in technology and because of our reliance on smart device technology… and because of both of those things we have different expectations of what is or isn’t private about our phones.

Courts now recognize the contents of our phones today contain work information, banking information, medical information, information about the books we read, the historical figures we admire, who we’re angry with in our family, where we’ve been, where we plan on going in three months or in an hour…  In short we have developed an intense dependency and sense of privacy about our phones and the courts know this to be true.

Is Tracking a Phone an “Unreasonable” Search?

Again – what is reasonable changes.  A “reasonable” search at an airport on September 12, 2001 might not have been considered as such on September 10, 2001.  Our more intense reliance and privacy with the phones make them harder and harder for police to justify tracking or searching.

But understand an “unreasonable” search becomes reasonable if law enforcement can legally and procedurally justify attaining whatever it is they’re looking for.  The legal question is just how much justification do they need and whether it requires attaining a warrant?

What Information Can Police Attain About Your Phone & How They Get It

I’m not a technology expert so I don’t know what and how the police can track.  I’m sure if they’re not tracking phones in real time already then at some point I’m sure there will be the capability for them to do that.  Probation departments and supervision departments can require either software or hardware downloads which allows them to track usage – but that’s not the same thing because in those instances the individual knows – and has often agreed – to being tracked.

Phone Dumps and Downloads

The law is more clear in this area – police need a warrant to get into your phone if you don’t consent to it being searched.  What they can get once they get in your phone is a technology question which I don’t have the qualifications to answer… but I’m sure this is an evolving cat and mouse game like everything else in the law/ technology realm.

Records

Police can and often do obtain records from data providers and other third parties such as apps from their private offices.  The mechanisms may vary from State to State but the providers may be able to voluntarily provide records to law enforcement based on the terms and conditions of the usage – or as is more often the case – law enforcement can subpoena the records.  In some instances the federal government requires third parties to report certain activity to the National Center for Missing and Exploited Children.

Also, third parties who may have records the police want such as Facebook or Twitter or some of your other tech giants can be extraordinarily difficult to deal with for both law enforcement and the defense due to nothing more than their sheer size, amount of data they mine, and amount of users they have.  They have legal compliance departments but even Court Orders have the ability to sit in someone’s pile or in-box for who knows how long.

Courts are moving in the direction of requiring warrants to accompany the requests but this is an intensely complex and evolving area of the law.  Many of the third-party companies host apps and aren’t in the United States.  This adds yet another layer of complexity.

Bottom Line

For the police or law enforcement to track your phone after the fact or in real time is currently and will be one of the great battle-lines in courtrooms for the 21st century going forward.  This question is truly the convergence and intersection between radically evolving civil liberties and radically evolving technological capabilities.

Stay tuned.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

 

 

 

 

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Probation Officer Recommendations

January 5, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Probation officers are often the gatekeepers between their probationers and ultimate freedom.  Probation officers are often asked about recommendations for things like travel, removal of an interlock ignition or deep lung device from a vehicle in DWI cases, or even early release from probation.

When folks visit with me wanting to change something about their probation, it’s very common for them to tell me their probation officer is “not opposed,” or “on board with” or even “recommends” something.

In truth – when I do pick up the phone to ask the probation officer their views I hardly ever get much of anything useful.  I’m usually told the probation department opposes our request to the judge or takes no position on our request to the judge (usually citing department policy).  I can’t remember the last time a probation officer actually told me they supported our motion.

Probation officers also make recommendations for revocations and adjudications.  It’s a bit of a different topic – but remember it is the Judge who ultimately determines what happens in a case, not the probation department.

Probation Officers Don’t Like Making Recommendations

Probation officers work in a bureaucracy. I’ve been in the Army, the District Attorney’s Office, and and have worked alongside government my entire career.  My blog is anything but political but probation departments with their bureaucracies come with some flawed cultures I’ve noticed.

I find there are three cultural problems I’ve seen with probation departments struggle with.  First, there is a climate of fear surrounding decision making.  Personnel are collectively intimidated about sticking their neck-out and making an uncommon or unconventional decision which has any potential at all to backfire.

Second, there is a “default to no” culture at most probation departments.  This means the default answer requests is typically “no.”  The answer is “no” if they don’t understand the request, “no” if they are 50/50 on the request, and especially the answer is “no” if they find a teeny-tiny reason the request could somehow backfire.

Third, if one decision maker is good – then seven are better.  And then they’ll come up with better reasons for saying “no.”

I’m probably jaded, but my view is probation officers simply don’t want to make decisions or recommendations which help their probationers.  They might claim to be in support in closed quarters with no one listening but they often quickly back off any such boldness.  They often claim they are bound not to make recommendations by office policy.  That could be true in some instances but those policies have never limited them from making recommendations against my clients… so I tend to view the policies skeptically.

Often I find a probation officer will claim they are not taking a position – yet they passive/aggressively oppose our requests in open court.  So I never take for granted they are in our corner or neutral on an issue.

I know I’m making many generalizations here.  There are plenty of probation officers I’ve worked with who break this mold and are very forthcoming on their views whether they are helpful or not to my client.

A Probation Officer’s Recommendation Isn’t Everything

It’s okay probation officers if don’t want to make recommendations.  Judges are comfortable making difficult calls granting things the probation department doesn’t like or want.

It’s the Judge who controls terms and conditions of probation – and Judges disagree with probation officers all the time.  Many judges have far more antagonistic relationships with the probation department than you may think.

For these reasons when I’m asked to help someone modify their probation – I just don’t put much stock in what the probation officer reportedly recommends.  If they are in our corner all the better.  But we can still win without it.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

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What is Cyberbullying and When is it a Crime?

January 3, 2021

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Texas laws on cyberbullying are somewhat smattered in different places.  Some laws are civil and could result in being sued, other infractions may result in school discipline and others are actually criminal.

Cyberbullying Defined

Harassment or stalking is what most people would consider cyberbullying behavior but online conduct aimed at demeaning, harming or threatening others and may take a variety of forms.

The Texas legislature has tried to address cyberbullying in criminal contexts but – there are balances with the first amendment and there is always the problem of keeping up with the ever-changing technological and social norms.

How the Education Code Defines Cyberbullying:

“Cyberbullying” means bullying that is done through the use of any electronic communication device, including through the use of a cellular or other type of telephone, a computer, a camera, electronic mail, instant messaging, text messaging, a social media application, an Internet website, or any other Internet-based communication tool.

It’s extremely important to remember, though, the Texas Education Code doesn’t make cyberbullying a crime.  It only gives school authorities enhanced abilities to deal with the problem.  The reason for this approach is likely the First Amendment which makes it more difficult for the government to actually punish someone for speech or a communication.

How the Penal Code Defines Cyberbullying:

Texas Harassment statute (Texas Penal Code 42.07) was intended to protect against cyberbullying and it reads (in relevant part),

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;

(2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person’s family or household, or the person’s property;

…

(6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; or

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

(b) In this section:

(1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine;

This law makes it a class a misdemeanor under 42.07(a)(7) punishable up to 1 year in the county jail and a fine not to exceed $4,000 if the victim is under 18 and the conduct attempt to get the child to either harm themselves or commit suicide.  Otherwise it is a class b misdemeanor punishable by 180 days of jail and up to a $2,000 fine.

Defending Cyberbullying Charges

There is always the first amendment – but not many folks want to take their case all the way up to the Supreme Court.  The First Amendment guarantees the government cannot stop people from free communication and expression.  There are, of course, limits to free speech.  The textbook example is you can’t yell “fire” in a movie theater.

Intrinsic to the statute is the bullying needs to be “reasonably” likely to cause the alarm sufficient to convict.  This just means the criminal charges have to pass the smell test – though allowing a jury to debate an issue like this can be scary.

Juvenile Courts and Cyberbullying

Also many cyberbullying cases take case in juvenile courts who have jurisdiction over offenders who are younger than 17 years old.  Those courts tend to take more of a collaborative or therapeutic approach to curb future behavior.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by the Thomson Reuters.

 

 

 

 

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When Being Drunk is a Crime & When it’s a Defense to a Crime

January 2, 2021

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

When Being Drunk is a Crime

The rule of thumb with intoxication in Texas is this:  it’s perfectly legal until you’re dangerous.  The threshold changes depending on what you’re doing.

For public intoxication (a fine-only offense) you’re guilty if you’re dangerous to yourself or others just being in public.

For driving while intoxicated it’s if you’re dangerous being behind the wheel of a motor vehicle which weighs a few tons and can go 100 mph.  DWI offenses range from class b misdemeanors (up to 180 days county jail) to 2nd degree felonies for intoxicated manslaughter (2 to 20 years in prison).

When Being Drunk is a Defense to a Crime

Voluntary intoxication is specifically excluded as a defense to a crime in Texas under Tex.Pen.C. 8.04.  Involuntary intoxication may be a defense – but it is extremely rare and difficult to prove.

This topic gets very legally complex very fast – so I’ll do my best to help it make sense.

Intoxication normally goes to undermine the “intent” requirement of most crimes.  If a person is intoxicated, then, they might not have intended to commit whatever crime, right?  The answer would depend on if the person intended to ingest something intoxicating or not — or if they ingested something via fraud or distress rendering the intoxication involuntary.

Adding another layer of confusion is this: not all crimes require intent anyways.  So drunk or not if the person did the criminal act then they are guilty.  Examples would could be statutory rape, selling alcohol to a minor or even speeding.  The prosecution doesn’t have to prove what you intended in those cases – much less whether a person was in their right state of mind.

Probably the easiest way to summarize this is through a few examples:

  • DWI Where drug was unknowingly put into someone’s drink:
    • Not a defense;
    • There is no “intent” requirement in drunk driving cases so even if it were “involuntary” intoxication it wouldn’t matter.
  • Theft where person was impaired due to prescription drugs;
    • Not a defense
    • The intoxication would be considered “voluntary” even if the person didn’t fully understand the impact of the medication or the medication had an unpredictable outcome.
      • The issue is whether the person “voluntarily” ingested the medication.
  • Robbery where a person had a cup of water spiked with an unknown intoxicant;
    • This would be a rare example of involuntary intoxication being a defense;
      • The impairment was caused by fraud;
      • The involuntary impairment negates the intent element required in robbery.

The effect of intoxication in cases can be obvious in most instances and legally complex in others.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by Thomson Reuters.

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Sexual Abuse Charges – Blog 15: What Advantages does Defense Have?

December 6, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

The short answer to what advantages the defense has over the prosecution in sexual abuse charge is this:  Not many.

Prosecutions for sexual abuse are like freight trains headed towards our clients.  But the Defense does have an advantage here and there.  It goes without saying we have to maximize those advantages is we want a chance.  What few advantages an accused has are the topic of today’s article in my continuing series of blogs on sexual abuse charges.

Unilateral Discovery

The biggest advantage the defense enjoys is unilateral — or one way – discovery.  This means we are entitled to virtually the entire prosecution’s file but the prosecution is not allowed to see ours nor are we required to disclose anything other than if we intend to call expert witnesses.  The Statute controlling discovery in a criminal case is Tex.Code.Crim.Proc. 39.14.

Unilateral discovery is critical for defense work.  I don’t know if my client is innocent or guilty when they walk in my door regardless of what they tell me happened.  I wasn’t with them at the time of the crime or accusation.

But let’s say I was worried anything I learn about my case was subject to me handing over to a prosecutor.  I wouldn’t interview witnesses for fear they’d say damaging things.  I wouldn’t ask for forensic tests to be done for fear it could show my client is guilty.  I wouldn’t have my client take a polygraph test or psychological evaluation for fear I’d have to disclose damaging evidence.

In short – if discovery was reciprocal Defense lawyers simply couldn’t do their job.  We would hide from learning facts instead of aggressively investigating a case.  Clients wouldn’t confide in us the truth and they would see coming to their own lawyer as just giving the prosecution more evidence.

So with unilateral discovery – if we do learn damaging facts then it stays in my file.  To do otherwise would essentially degrade not only the attorney-client relationship but my entire ability to fight for someone’s innocence.

We Have the Ability to Know the Full Story – They Know Half

Along the lines of unilateral discovery – another advantage we have on the defense side is we have the ability to get our side of the story plus theirs.  We already get the state’s file as I discussed above.

Once the accused has a lawyer involved – the prosecution and police’s ability to learn our side of the story is largely cut-off because they are not allowed to talk with the accused.

In cases where the police get a confession – they often have enough of an accused’s side of the story to make it extremely daunting.

Police know interviewing a suspect is a balancing act.  They don’t want to set off any alarm triggers with the accused which will cause them to get a lawyer involved – because that will effectively end their ability to learn information from them.  On the other hand they usually very much want a confession so most interviews are geared towards that goal alone.

We have the ability to sit with our client for hours at a time to learn about witnesses, facts and lines of defense  law enforcement doesn’t know because they were never able to interview the accused or they weren’t interested in asking because it wasn’t on their radar or it didn’t help them get a confession.  We also have the benefit of having friendly witnesses come to us too who don’t want to talk with the prosecution.

We Know Their Playbook – They Don’t Know Ours

Several blogs in this series have dealt with common prosecution tactics in sexual abuse cases.  We have the advantage of knowing how they often take a one-size fits all approach which includes their common arguments and even many of the same witnesses and their tendencies.

The prosecution might know certain experts we use and be prepared for them – but beyond this, they really might not have much of a clue how we intend to defend any particular allegation.

Ex Parte Funding

Defendant has the ability in many cases to ask the court for funds to secure either investigators or experts in Texas if the accused is legally indigent.  This is true whether or not counsel is retained or appointed.  Ex Parte means the defendant gets to approach the judge without the prosecution knowing.

Asking for funding for investigators or experts in fields such as psychology, computers, DNA or any other discipline isn’t so much an advantage as much as it allows defense to offset some of the prosecution’s massive advantage in these areas.

Work Ethic

It goes without saying the harder we work – the luckier we get.  The prosecution and law enforcement are working very hard but we can always out work them.  Make sure your lawyer is doing that.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 

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