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.

 

 

 

 

 

Comments Off on Can Police Track Your Phone? | Civil Liberties, Computer Crimes, crimes against children, Divorce related crimes, Federal Court, federal criminal defense, Murder, Police, Police and Prosecutors, sex cases, sex crimes, Sexual Abuse of a Child, Uncategorized, Vehicular Homicide | Tagged: , , , , , , , , , | Permalink
Posted by niftybrady

Illegal Searches are More Common Than You Might Think

December 11, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

One of the best weapons in defending many cases is the exclusionary rule.  That rule prevents illegally attained evidence from being used by the prosecution during trial.  The exclusionary rule is the citizens legal protection remedy from illegal police acts.

Isn’t it a Bit Much to Say the Police Acted Illegally?

Think of the word ‘illegal’ in terms of a penalty during a football game such as ‘illegal procedure.’  The word ‘illegal’ has a much lighter connotation when we know it’s just a 5 yard penalty for a player moving the wrong direction before the snap.

Calling a search or particular police action ‘illegal’ is really no different.  As the accused, you’re merely saying there was a foul committed without regard to wether it was intentional or severe.  But the rules are the rules and everyone has to play by them.

Motion to Suppress

A motion to suppress the evidence is a request for the judge to trigger the exclusionary rule and render the illegally attained evidence unusable.  The most common legal grounds are the 4th Amendment to the US Constitution prohibiting illegal search and seizure and Texas Code of Criminal Procedure Article 38.23.

Illegal Searches Can’t be Very Common, Right?

They’re more common than you think.  You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law.  The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling.  Though today’s police might also include teenagers or people who have an alternative appearance in addition to racial minorities – there isn’t much of a difference under the law.  Profiling is profiling.

Articulable Facts vs. Subjective Opinion

You also have to remember police in targeting certain groups are often aggressive in their approach.  Police need to be able to articulate the facts which justify traffic stops and continued roadside detentions.  As an example a police officer saying he stopped a car because “he just knew they were up to no good” isn’t going to fly.  It’s a hunch and courts don’t like that.

Closer examples might include thin and subjective reasoning for keeping someone detained at a routine traffic stop – nervousness, the time of day/ night, or even labeling the area of the stop as ‘high crime’ with little or no proof.  Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts.

Articulable facts, on the other hand, might include “the driver was going 58 in a 45.”  Or the driver smelled like alcohol, said he was on his way to Dallas but was driving the opposite way.

So where an officer can plainly, quickly, and obviously explain the probable cause – the better chance they have of keeping a detention legal.  The more they rely on opinion and conjecture – the more problems they might have explaining it later.

Again, police know they are fighting crime and doing great things by keeping drugs, guns, and drunk drivers off the streets.  They will often push and test the rules for reasons they think are justified.

The end result may be that often they have mis-stepped.

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

Leave a Comment » | Civil Liberties, Drugs, DWI, federal criminal defense, marijuana, Police, Police and Prosecutors, THC, Uncategorized, Weapons | Tagged: , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Can the Police Track Your Phone?

November 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Yes, police can track your phone.

Smart phones, car infotainment systems, and computers have absolutely revolutionized criminal investigation and criminal law.

While these forensic practices are very cutting edge and revolutionary – they are still somewhat impractical depending on the case.  Legally there are obstacles for law enforcement too – but those are typically overcome.

The intersection between liberty and technology is always evolving and it always will.  Courts recognize people have privacy interests in our phones, cars and computers for which we increasingly rely – but the more advanced the technology – the more tempting and simple it is for law enforcement to attain.

For example, cell tower triangulation currently requires not only knowing specific information about the device but also requires getting records from the carrier.  A car infotainment download is very expensive but it can tell law enforcement anything the car has communicated to the driver such as GPS data, lane assist warnings or car door openings.

Tracking cell phones requires lots of work which might include search warrants for records and even fighting with the likes of AT&T or Sprint – but it is possible and can be extremely valuable to police.

I rarely see cell phone tracking in cases such as driving while intoxicated, theft, or even sexual assault.  Cell phone triangulation and tracking are common in homicide cases, kidnapping cases and other high-profile cases.  Also, civil lawsuits might have cell phone tracking evidence because a party is willing to shell out the money to pay for it.

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

Comments Off on Can the Police Track Your Phone? | Civil Liberties, Computer Crimes, DWI, federal criminal defense, Homicide, sex cases, sexual assault, Uncategorized | Permalink
Posted by niftybrady

What does the Term “Forensic” mean?

November 7, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Forensics are when normal scientific principals are utilized for courtroom purposes – normally in a criminal context.  The applications can be fairly broad as far as scientific (and even some non-scientific) disciplines are concerned.

Some Science is Purely for the Courtroom

A textbook example are certain sciences where the science itself is almost solely geared at solving crime.  An example could be blood spatter.  There might be a different application of the science of blood spatter than criminal law – but if there is I don’t know it.  Bite marks would be another example of a discipline which is virtually entirely for the purposes of criminal cases (forensic odontology) and there has been tons of criticism of bite mark evidence.

Some Science Can Either be Forensic or Not

Other examples require the injection of legal or investigative principals into the science.  Examples there could be forensic pathology, toxicology, or psychology.

Pathology is essentially the study of tissue as it relates to disease.  Forensic pathology takes it one step further often to either determine causes of death or in other cases – causes of bruising for assault cases.

Toxicology is the study of toxins and poisons and their effect on the body.  Forensic toxicology, then, applies to specific legal principals such as the ability to drive, a person’s level of impairment, or perhaps a foreign substance which caused a person to die in a homicide case.

Forensic psychology is a unique practice where a psychologist applies mental health principals and diagnoses and applies them to individuals either to reconstruct someone’s thought process during a potential criminal episode, their overall psychological profile, or for mitigation purposes.

“Forensic” Disciplines We Might Not Think About Much

Other examples of forensics which are disciplines and areas of expertise we don’t associate with medicine can be:

  • forensic computer exams
  • forensic accounting
  • forensic engineering

Instances Where the Term “Forensic” is Potentially Misused

Police and children’s advocacy centers utilize what they call a “Forensic Interview” of a child in sexual or physical abuse cases.  It’s basically an open-ended interview of a child where they are asked to describe physical or sexual abuse in a non-leading fashion.  The psychological or scientific underpinnings or basis for the technique has never been made clear to me – at least not in the courtroom by any of the practitioners.  But it makes the interview seem official or important to the jury – which is why they label it that way, I’m sure.

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

 

 

 

 

Comments Off on What does the Term “Forensic” mean? | Assault, Computer Crimes, DWI, Federal Court, federal criminal defense, Homicide, Murder, Police, Self Defense, sex cases, sex crimes, sexual assault, Uncategorized | Tagged: , , , , , | Permalink
Posted by niftybrady

What is Mortgage Fraud?

November 6, 2020

By Criminal Defense Attorney Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Mortgage fraud is committed where someone lies to a bank to get a real estate loan.  Mortgage loans are heavily regulated by the US government as evidenced by the mountain of paperwork you do when taking out a mortgage on a house.  Mortgage fraud is prosecuted by the federal government and the controlling statute is 18 U.S.C. Section 225.  The punishment for mortgage fraud can be up to 30 years of prison but as with other federal offenses – the more indicative indicator is the federal sentencing guidelines for any given case. 

Common Types of Mortgage Fraud Schemes:

  • Appraisal fraud – where an appraiser or other party is paid to falsify the value of property to the bank;
  • “Air Loans” – where the borrower basically falsifies everything and pockets the bank’s cash;
  • Occupancy fraud – where the buyer certifies the house is not an investment property but a homestead;
  • “Straw Man” – where a person cannot qualify for a loan (or is barred from receiving a loan) and instead uses another “straw man” to complete the transaction.
  • Underwriting fraud – where phony assets or other falsification occurs when the bank is trying to verify assets.  Examples would be moving chunks of money around to fool a bank into thinking a person has assets when they really don’t.

Any type of falsification you can think of to a bank in the process of a real estate or home loan can probably be characterized as mortgage fraud with the key qualification the mis-representation is “material” in nature.

Conspiracies to Commit Mortgage Fraud

Remember – the federal government is keen on prosecuting what they characterize as conspiracies.  So people such as appraisers, builders, and even the bank employees themselves can be investigated and prosecuted for mortgage fraud if the government thinks they played a role.

Defenses to Mortgage Fraud

Lack of intent – or misrepresentations being a mistake are a main defense to mortgage fraud.  To help show a misrepresentation was an honest mistake and not part of a larger and more sinister plot – the government and potentially a jury need to be shown the broader picture including perhaps forensic accounting of the persons assets and portfolio and the person’s sophistication level when it comes to taking out loans.

As with all federal cases – mitigation and reducing liability also commonly include cooperation with the government if necessary, the amount of the alleged fraud in question, and the scope and degree of the person’s involvement if it is a conspiracy.

*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.

Comments Off on What is Mortgage Fraud? | false statement to secure credit, Federal Court, federal criminal defense, medicare fraud, mortgage fraud, Uncategorized, White Collar Crime | Permalink
Posted by niftybrady

« Previous Entries