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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Posted by niftybrady

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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Posted by niftybrady

Domestic Violence Charges – Blog 16:  Areas of Defense Focus

December 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

It’s tough to quantify or discuss all possible defenses to all possible cases in one neat blog.  There are some cornerstones, though, and areas which any defense lawyer should look for acquittals.

You can read my index to other domestic violence charge blogs here.

A Note on Legal & Factual Sufficiency

It’s obvious I wasn’t watching any given couple’s quarrel which lead to someone getting arrested.  I couldn’t be a lawyer in those cases because I’d be a witness.  I don’t evaluate cases for what I personally think happened, rather, I evaluate them for what I think a jury may or may not believe.

What I evaluate to prepare for a trial, then, is what we call legal sufficiency and factual sufficiency.  Just remember when I discuss possible outcomes below – what I mean to say is “will the evidence be enough to show….”

Legal and factual sufficiency are confusing appellate terms which I’m evaluating for when I hear a case.  Maybe I’ll blog about that one day on it’s own if I want to put everyone to sleep… but not today.

What you do need to know about legal and factual sufficiency for the purposes of this blog is this:  A judge cannot allow a jury to deliberate at all if the evidence is legally and/or factually insufficient.  If the evidence shows the crime was committed by an apple and it’s an orange charged with the offense – then the judge acquits the orange before a jury can deliberate.

If there is Evidence Assault Occurred, Can the Prosecution Get it to a Jury?

The Texas Rules of Evidence dictate what a jury can hear.  If a jury isn’t allowed to hear something under the rules – then it could render the evidence insufficient and require acquittal.

Example #1:  Complaining witness told a neighbor who told their hairdresser they got choked by their spouse.  Can the hairdresser come in and prove-up the assault for the prosecution?

  • No.  The rules of evidence (specifically the hearsay rule) would prevent this testimony.

Example #2:  Neighbor routinely sees police coming to the house next door and sees the defendant yelling at children on Halloween.  Can the neighbor come to court to prove-up assault because “everyone knows he beats her?”

  • No.  The rules of evidence prohibit speculation of this sort.

The Confrontation Clause

Another topic which could easily take three or four lectures of a law school course in constitutional law is the confrontation clause.  Any lawyer defending domestic abuse cases has to be extremely up-to-date on these issues no differently than a physician has to keep up with the latest medical research on studies and pharmaceuticals.

The confrontation clause under the 6th Amendment of the US Constitution normally requires the accuser themselves to come into court and testify to secure a conviction.  But this isn’t always the case and the exceptions are constantly changing.

If the Jury Can Hear Evidence of an Assault, Can We Persuade the Jury Otherwise?

If the evidence might be legally and factually sufficient to sustain a conviction then we can’t count on a judge throwing it out before it gets to a jury.  In these cases we have to get to work proving the accusers account is incomplete, exaggerated, or otherwise wrong.

This is where a lawyer has to get into the dirt of a case knuckle-deep.  Who said what to one another, who was standing where, who was holding what object, who is on what medications, who consumed alcoholic beverages, who has a history of of doing what… etc, etc.

Do we have reason to believe the accuser exaggerates?  Do they have a history of exaggerating such claims or bringing false claims?  Does the complaining witness have psychological disorders such as manic episodes which might contribute to them giving a falsified account to police?

Are There Any Applicable Defenses?

I’ve blogged about the main defenses to assault – which apply regardless whether the complaining witness is a family member or in a dating relationship or not.

Can we show the jury this was self defense?  Who hit first and can we prove it?  Did they place the other person in fear of imminent bodily injury?  If so – how?  What does the physical evidence show?

Did the accuser “consent” to or otherwise invite the assault by their conduct?  Did they stand in a doorway and refuse to allow the other to leave?  Did they somehow dare the other one to hit them?

Each Case is Unique

Again — every case which comes in is unique.  But the good news for defending cases like these is they are rarely cut and dried.  The police have the difficult job of showing up to a scene and keeping the peace.

It often results in someone going to jail for no other reason than the police don’t know the couple — they just don’t want to come back later the same evening and pick up a dead body.

The legal system is designed for police to make an arrest with a lower threshold of evidence for exactly this reason — probable cause.  We have plenty of time after the fact to put the pieces together and mount an aggressive defense.

*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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Posted by niftybrady

Domestic Violence Charges – Blog 15:  Affidavits of Non-Prosecution and What Happens with the “Victim” Doesn’t Want the Case Prosecuted?

December 27, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

This most common question I get in domestic violence cases is this:  if the victim doesn’t want to prosecute then won’t the case go away?

The answer is the “victim” or “complaining witness” has the legal power of a witness in a criminal proceeding and nothing more.  The prosecuting attorney makes the decision whether to go forward with a family violence charge.  Will the prosecuting attorney go along with the “victim’s” request to dismiss charges?  This is the million-dollar question which is different in every case.

Some District or County Attorney Offices are policy-driven to reject affidavits of non-prosecution and others take them on a case by case basis and will occasionally not pursue assault charges.

District Attorneys, County Attorneys and occasionally city prosecutors who review assault cases and affidavits of non-prosecution are public servants.  In theory, you would think they would be sensitive to pleasing the person they purport to protect.  Again, sometimes they do listen to victims of domestic abuse and sometimes they don’t.

Here is an index to the other blogs on domestic violence in this series.

Affidavits of Non-Prosecution

An affidavit of non-prosecution (“ANP”) is a statement made, typically under oath, where the complaining witness makes a statement to the effect they do not wish the case to proceed.  An ANP has no real legal power and it’s a very common misconception that it does carry with it a requirement the police or prosecutors obey it.

Why Police or Prosecutors Might Not Care About an Affidavit of Non-Prosecution?

I’ve blogged a lot about the Duluth Model in domestic violence and the “cycle of violence” along with the “power and control wheel.”  Those prevailing thoughts in law enforcement hold the abuser is all-powerful and has taken emotional control over the victim.

When many police and/or prosecutors see an ANP from a victim – it only confirms to them these concepts and theories are true.  They think the affidavit of non-prosecution is either forced, coerced, or done out of self-blaming guilt.  I’m sure sometimes they are right.

Also, as I wrote above, some offices are driven by policy of rejecting affidavit’s of non-prosecution.  They may feel self-assured enough that each and every case of domestic abuse allegations are the same — or they may simply be under pressure from third party advocacy groups such as battered women shelters to have such a policy.

What Happens when the Prosecution Makes one Spouse Testify Against the Other Against Their Will?

This happens.  I’m frequently asked if one spouse can lawfully refuse to testify against the other and the answer is no – assuming that spouse has been lawfully subpoenaed.

The prosecution can cause a subpoena to be issued which is a lawful court order requiring the witness in the case to come to court and testify under oath.  A judge can also compel a witness to testify and answer questions about instances of alleged domestic violence because the marital privilege does not extend to protect one spouse from testifying about the other accused of a crime.

It’s an unusual dynamic because the prosecution is put in a position of cross-examining their own “victim” in a case and in certain cases the complaining witness themselves may be entitled to counsel depending on the specifics of the situation.  You would think a prosecutor would do everything in their power to avoid being in this position but many prosecutors feel they are fulfilling a greater good by conducting a case this way.

The Firewall – The Jury

The good news is if all these things come to pass with the prosecution rejecting an ANP, forcing the case to trial and compelling one spouse to testify against the other — the defendant has the firewall or last resort of having a jury decide the case.

Juries aren’t subject to the DA’s offices policies and they have to be convinced the prosecutors crusade to convict one spouse over the other ones wishes is meritorious — and experience tells me that’s a very hard sell.

Even if the prosecutor doesn’t want to dismiss a case because a complaining witness says so — doesn’t mean the case doesn’t often finish with a two-word “not guilty” verdict.

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

 

Comments Off on Domestic Violence Charges – Blog 15:  Affidavits of Non-Prosecution and What Happens with the “Victim” Doesn’t Want the Case Prosecuted? | Assault, Divorce related crimes, Domestic Violence, Emergency Protective Orders, Police, Police and Prosecutors, Self Defense | 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.

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Posted by Jeremy Rosenthal, Esq.

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