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Big Brother Tracking You in 2015 – Your Cell Phone Activities on Paper, in Electronic Data and in the Cloud

Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.

It is almost impossible to prosecute or defend a serious criminal case today without one side or the other seeking to introduce or bar the introduction of some type of electronic surveillance or electronic “footprint” evidence. In so many cases the prosecution and/or defense seek to establish the historical financial activities of an individual through a review of credit card, ATM or other electronic purchases, review the travel activities of a person through the use of EZ Pass records, track an individual’s activities through a review of the often seemingly omnipresent governmental and private video cameras, explore a person social media activities or, as in the subject of this article, use information derived from cell phones.

Cell phone related evidence requires an awareness of a variety of issues that will affect the issue of the admissibility of such evidence. The prosecution must be prepared to address challenges to the legality of the acquisition of such evidence according to the Fourth Amendment. Both the prosecution and the defense must then deal with the foundational requirements for the admissibility of such evidence including authenticity, whether the records are hearsay, and the need for expert testimony for interpretation.

Consider the following questions:

1. Was the information obtained historical or “real-time” information at the time of its acquisition?

2. Was a probable cause warrant, a “reasonable suspicion” application, a subpoena or some other form of legal authority required to obtain the information/records?

3. Are there statutes that control the proper way to obtain the information/records? Both the federal and Maryland electronic surveillance statutes have provisions that address differently the proper and lawful acquisition of electronic surveillance information based upon whether there is a “real-time” tracking device being utilized, whether the information is detailed recent cell site location information, or whether the information is historical call detail information. In 2014 Maryland enacted new legislation found in C.P. § 1-203.1 addressing the requirements to obtain “real time” location information. The federal statute authorizing such devices is 18 U.S.C. § 3317. The process for acquisition of stored electronic surveillance evidence is addressed in C.J.P. § 10-4A01 et. seq. and 18 U.S.C. § 2701 et. seq. Pen registers and trap and trace devices are authorized as provided in C.J. § 10-4B-10 and 18 U.S.C. § 3121.

4. Once the information has been obtained, what are the authentication requirements for the admissibility? The testimony of a police officer as to what he observed when searching the physical cell phone is going to be different from the evidentiary foundation required if the information comes from the business records of a large communication company. Not only will there be a need to authenticate the supporting records, there may be a need for a corporate representative to explain the records. While the records may be admissible as business records with a Rule 5-902(b) certification, it is likely that a “live” witness will be required to explain technical records whose meaning is not readily apparent.

5. Is expert testimony required to discuss the significance of the records, how the technology operates to record the information, etc.? If the information was acquired as a result of “real-time” tracking, it is likely that an expert will be required.

6. Whatever electronic device is involved, does there still need to be an evidentiary link between the device and the person whose activities are sought to be established through the introduction of such evidence? Often the connection to the owner or possessor of the device may be self-evident. A careful analysis of how the link is proven should be undertaken. A cell phone subscribed in the name of a suspect is a good start and may be sufficient. A prepaid or “drop phone” with no documentary connection to the suspect may require a different evidentiary connection to establish the link to make the admission of the evidence relevant.

The Supreme Court in Riley and Jones has addressed a number of these issues, as have both of Maryland’s appellate courts and the Fourth Circuit. United States v. Graham, is a Fourth Circuit case decided August 5, 2015, an opinion summarized in this article. Graham is a “must read” for those interested in this subject.

Another “must read” opinion not summarized in this article is the published 60 page opinion of United States Magistrate Judge Susan Gauvey in In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d 526, 571-2 (D. Md. 2011) in which, she identifies various types of electronic surveillance evidence:

Following adoption of the ECPA, courts have recognized that, there are four broad categories of electronic surveillance, each with its own well- established standard for obtaining court ordered disclosure or monitoring. Those categories (arranged from highest to lowest order of legal process) are: (1) wiretaps, which are authorized pursuant to 18 U.S.C. §§ 2510–2522, upon what could be called a “probable cause plus” showing; (2) tracking devices, which are authorized pursuant to 18 U.S.C. § 3117, upon a standard probable cause showing; (3) stored communications and subscriber records, which are authorized pursuant to the Stored Communications Act upon a showing of specific and articulable facts showing that there are reasonable grounds to believe that the data sought is relevant and material to an ongoing criminal investigation; and (4) pen registers and trap and trace devices, which are authorized pursuant to 18 U.S.C. §§ 3121– 3127 … upon the Government’s certification that the data sought is relevant to an ongoing criminal investigation.

The recent Supreme Court cases of Jones and Riley have altered the Fourth Amendment landscape as to requirements for the acquisition of cell phone evidence as the Supreme Court attempted to determine the proper manner in which to provide Fourth Amendment protection to personal information of a type never envisioned by the drafters of the Bill of Rights. In United States v. Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 (2012) the Supreme Court held that the Government’s installation of a GPS device on a target’s vehicle and its use of that device to monitor the vehicle’s movements, constitutes a “search.” In Riley v. California, 124 S.Ct. 2473 (2014), the Supreme Court held that a warrantless search of the contents of a cell phone was not permissible as a search incident to an arrest and that neither concerns about officer safety nor about possible destruction of evidence justified dispensing with the requirement that such searches must be conducted pursuant to a warrant. Evidence obtained prior to Jones and Riley in violation of those holdings has generally still been held admissible against Fourth Amendment challenges where the officers acted reasonably and in “good faith” on what was, at the time of the acquisition of the evidence, believed to be the law. The timeline when such warrantless searches will be upheld on “good faith” is presumably quickly evaporating as the warrant requirement is now well-established Fourth Amendment law.

The following are some recent representative cases addressing cell phone information acquisition and admissibility.

United States v. Graham – warrant required for cell site location information

In United States v. Graham (No. 12-4659, 4th Cir. 8/5/15), the Court held that the warrantless procurement of cell site location information (“CSLI”) was an unreasonable search in violation of the appellants’ Fourth Amendment rights; however, because the government relied in good faith on court orders issued in accordance with Title II of the Electronic Communications Privacy Act, or the Stored Communications Act (“SCA”), the admission must be sustained.

In this bank robbery prosecution, the government obtained two court orders for disclosure of CSLI for calls and text messages transmitted to and from phones seized during the investigation and used that information at trial to establish the participants’ locations during the time frame of the robberies.

Historical CSLI identifies cell sites, or “base stations” to and from which a cell phone has sent or received radio signals, and the particular points in time at which these transmissions occurred.

The government obtained the CSLI through use of court orders issued under the SCA directing Sprint/Nextel to disclose the information. The SCA provides an avenue for law enforcement to compel a provider of electronic communication services to disclose the contents and records of electronic communications.

The Fourth Circuit explained that absent subscriber notice and consent, the government must secure a warrant or a court order for subscription account records. A warrant from a federal district court for the disclosure of subscriber records must be issued pursuant to the Federal Rules of Criminal Procedure which in accordance with the Fourth Amendment, require a finding of probable cause by an impartial magistrate. By contrast, to obtain a court order the government must “offer[] specific and articulable facts showing that there are reasonable grounds to believe that…the records or other information sought are relevant and material to an ongoing criminal investigation. 18 U.S.C. § 2703(d). This is essentially a reasonable suspicion standard. The statute offers no express direction as to when the government should seek a warrant versus a § 2703(d) court order.

The government obtained two § 2703(d) court orders for the CSLI at issue in Graham. The Fourth Circuit agreed that the government violated the Fourth Amendment in seeking and inspecting the CSLI at issue here without a warrant based on probable cause. The Fourth Circuit held that the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical CSLI for an extended period of time. Examination of a person’s historical CSLI can enable the government to trace the movements of the cell phone and its user across public and private spaces and, thereby, discover the private activities and personal habits of the user. Thus, cell phone users have an objectively reasonable expectation of privacy in this information. Inspection of such information by the government requires a warrant, unless an established exception to the warrant requirement applies.

The Graham court noted that courts have held that tracking the location of an individual and his property inside a private space, as opposed to on a public road, constitutes a Fourth Amendment search. See U.S. v. Karo, 468 U.S. 705 (1984); Kyllo v. U.S., 533 U.S. 27 (2001).

Courts have also held that tracking of an individual and his property continuously over an extended period of time constitutes a search. In Karo, the tracking device was not carried on anyone’s person and therefore not capable of tracking the location of any individual. Likewise, the device was not inadvertently placed in the appellants’ homes on a single instance like in Karo and Kyllo, but rather on several dozen specific occasions over 221 days.

The Fourth Circuit said that the privacy interests affected by long-term GPS monitoring apply with equal or greater force to historical CSLI for an extended time period. A cell phone seldom leaves the user’s presence and is regularly carried into one’s home and other private spaces. Tracking historical CSLI allows the government to track a person’s interests in both privacy of his movements and privacy of his home.

It is objectively reasonable that a cell phone user has an expectation of privacy in his long-term CSLI. Even the Supreme Court in Riley cited “[h]istoric location information” as among the heightened privacy concerns presented in government inspection of cell phones, as such information details the user’s “specific movements down to the minute, not only around town but also within a particular building.”

The government invades a reasonable expectation of privacy when it relies upon technology not in general use to discover the movements of an individual over an extended period of time. Thus, the government engages in a Fourth Amendment search when it seeks to examine historical CSLI pertaining to an extended time period like 14 or 221 days. The Fourth Circuit did not draw a bright line rule as to how long the time period for the historical CSLI can be before its inspection rises to the level of a Fourth Amendment search.

The Fourth Circuit also found that it is constitutionally insignificant that historical CSLI records only disclose a finite number of location data points for certain points of historical time, whereas GPS monitoring permits law enforcement to track in real-time, continuously at every moment. Likewise, it is inconsequential that the CSLI could not pinpoint as precisely the appellants’ location as a GPS could. The Fourth Circuit declined to accept the third-party record document argument by the government that the appellants lacked a reasonable expectation of privacy in their CSLI because the CSLI records were kept by third-party Sprint in the ordinary course of business. A cell phone user does not convey CSLI to his service provider voluntarily or otherwise and therefore does not assume any risk of disclosure to law enforcement. The service provider automatically generates CSLI in response to connections between the cell phone and the network, with and without the user’s active participation.

Although finding that the government violated the appellants’ Fourth Amendment rights, the Fourth Circuit held that the records were not subject to suppression because the government acted in good-faith reliance on court orders issued under the SCA and noted that prior to its ruling in this case, neither the Fourth Circuit nor the U.S. Supreme Court had deemed the government’s conduct unconstitutional.

The court did not accept the defense position that the record custodian’s testimony regarding how cell phones connect with cell sites and the operations and radio frequency range of cell sites was expert testimony. Rather the court found that the testimony consisted of facts acquired based upon the employee’s experience as an employee of Sprint/Nextel.

There were, however, other aspects of the custodian’s lay testimony that the court found more concerning including explanations as to how cell phones connect to a cellular network for the completion of calls and technical details about operations performed by cell sites and how calls are routed through network switches. This testimony was clearly based on scientific, technical, or specialized knowledge within the scope of Rule 702. Under the totality of circumstances of this case, the court held that any such error was held harmless.

The court also reject the defense’s challenge to the testimony offered by the FBI agent regarding his creation of maps based on the CSLI disclosed by Sprint/Nextel holding that such testimony did not amount to expert opinion as he used mapping software that is marketed to the public and simply entered locations of businesses and homes by address, and the cell sites by latitude and longitude as disclosed by Sprint/Nextel.

Kelly v. State – cell phone records admissible

In Kelly v. State, 436 Md. App. 406 (2013), the police, prior to the Supreme Court’s decision in United States v. Jones, 132 S. Ct. 945 (2012), attached a GPS to Kelly’s car, without a warrant, and tracked its movement for 11 days. No Maryland appellate decision had held expressly that the attachment and use of a GPS tracking device is permissible under the Fourth Amendment. The CSA held that the police acted in reasonable reliance on then-binding precedent of United States v. Knotts, 460 U.S. 276 (1983), which allowed the use of a mechanical device, attached to the exterior of a vehicle, to track that vehicle’s movement in public.

Baker v. State – error to admit cell phone records and expert testimony

In Baker v. State, (CSA 7/6/15), the CSA found that the circuit court erred in admitting call records obtained from the Baker’s phone service provider and expert testimony relating to the records.

After obtaining the phone number from the victim, an officer obtained the phone records from AT&T and identified Baker as the subscriber. The records indicated that on the evening of the crime there were several calls from the number the officer identified with the Baker and the victim’s number.

The circuit court issued an order directing AT&T/Cingular to produce certified copies of subscriber information, call detail records, incoming and outgoing text messages and phone numbers, and cell tower locations/records from July 17, 2013 to August 30, 2013 for the cell phone number that the victim identified as belonging to the man who raped her. Pursuant to a court order, AT&T provided a variety of cell phone information which also identified Michael E. Baker as the owner of the phone. In addition to the calls made, the records also showed the cell phone towers from which each call “pinged” to connect the call.

At trial, the State did not call the custodian of records from AT&T to introduce the records, nor did the State give expert notice that it would seek to designate the investigating officer as an expert to interpret the phone records. The circuit court held that the officer could not testify about the location of the pings, but that he could discuss the calls made back and forth and the records could be introduced. The officer testified that the phone number that the victim identified as the number of the man who raped her belonged to Baker and that the records showed there were several calls to the victim’s number from Baker’s phone on the night of the rape. The records were then admitted into evidence.

This was the CSA’s first occasion to address whether computer records generally, or call records specifically, constitute hearsay. The CSA was persuaded that computer-generated records generally do not constitute hearsay and it concluded that when records are entirely self-generated by the internal operations of the computer, they do not implicate the hearsay rule because they do not constitute a statement of a “person.” In that situation, the admissibility of such data “should be determined on the basis of the reliability and accuracy of the process used to create and obtain the data.”

While the CSA agreed that the records did not constitute hearsay, there was no evidence presented regarding how the call records were produced and, as a result, the CSA was not able to conclude that the admission of the call logs was proper on the ground that they were computer-generated evidence that did not qualify as hearsay.

Other records that were likely not computer-generated were the portions that supported the trooper’s testimony that the number that called the victim’s phone the night of the rape belonged to Baker. The CSA noted that it was more likely that it was data entered by a person. Such evidence that is generated by a person has been held to be hearsay and thus was inadmissible.

On the record before them, the CSA held that in the absence of testimony from the custodian of records, or any 5-902(b) certification, the circuit court erred in admitting the call record.

Spence v. State & Demby v. State – although a warrant was required to search cell phone, the “good faith” doctrine applies

In Spence v. State, (COA 7/27/15) and Demby v. State, (COA 7/27/15) the COA held that the warrantless search of the digital information of an arrestee’s cell phone incident to a lawful arrest is unreasonable in violation of the Fourth Amendment, except for case-specific exigent circumstances. The police officer may examine only the physical aspects of a cell phone in the interest of officer safety. However, in these cases, the warrantless search of the cell phone incident to the defendant’s lawful arrest was done prior to the Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473 (2014) and was done in reasonable reliance of then-binding precedent United States v. Robinson, 414 U.S. 218 (1973) which established a bright-line rule authorizing police to search any object found within the temporal and spatial scope of a search incident to a lawful arrest. Applying the good faith doctrine, the COA held that the information obtained from the cell phones need not be suppressed.

Stevenson v. StateFrye/Reed hearing not required for cell phone records – expert testimony required

In Stevenson v. State, 222 Md. App. 118 (2015), the CSA held that: (1) Frye/Reed hearing was not required for admission of cellular tower “ping” evidence and (2) trial court did not abuse its discretion by allowing two detectives to testify as experts.

The CSA stated that cell phone location evidence is not novel scientific evidence and the defense did not offer any evidence or argument in the circuit court that such a technique was novel or not generally accepted. However, the court agreed that cell phone location evidence may only be introduced through a witness qualified as an expert which is how the State introduced it in this case.

Wilder v. State & Payne v. State

expert testimony required for cell tower witness

In Wilder v. State, 191 Md. App. 319 (2015) CSA held that the use of cell phone site location evidence and the accompanying testimony of a law enforcement officer who explained its use require the qualification of the sponsoring witness as an expert. The CSA stated that the best approach is to require the prosecution to offer expert testimony to explain the functions of cell phone towers, derivative tracking, and the techniques of locating and/or plotting the origins of cell phone calls using cell phone records. The officer’s description of the procedures he employed to plot the map of Wilder’s cell phone hits was not commonplace and because his explanation of the method he employed to translate the cell phone records into locations was demonstrably based on his training and experience, the CSA held that he should have been qualified as an expert under Md. Rule 5–702, and that the State was obliged to fulfill its discovery obligations under Md. Rule 4–263(b)(4).

In Payne v. State, 440 Md. 680 (2014), the State asserted that expert testimony was not required to interpret cell phone records as the police witness did not render an opinion as to the location of cell phones and that he merely read Sprint/Nextel’s business records and followed its directions in interpreting the data. The COA disagreed noting that the call detail record contained a string of data unfamiliar to a layperson and not decipherable based upon personal experience. The detective relied upon his training and experience to interpret the records and needed to be qualified as expert to offer his interpretation of the cell phone records.

Over 45 years of trial experience as a federal and state prosecutor and as a criminal defense attorney