November 2009, Page 28

An Approach to Cell Phone Evidence for Criminal Defense Attorneys
By Daniel K. Gelb

One need only walk down the street or through a mall in order to come to the conclusion that cell phones are widely used. The proliferation of electronically stored evidence (ESI) that resides on cell phones will have increasing importance when the prosecution alleges that cell phones were used in the commission of crimes. As a result, familiarity with electronic discovery (e-discovery) is a necessity for effectively defending a client in a criminal — as well as civil and regulatory — matter.

The purpose of this article is to provide a framework for understanding cell phone evidence in order to substantiate a client’s defense or to suppress or rebut the prosecution’s case.


I. Determining the Existence Of Cell Phone Evidence
Counsel must determine exactly what kind of phone the defendant used during the time frame of the offenses alleged, the features available and used by the defendant, and whether the defendant is the subscriber on the account. It is very difficult to challenge the prosecution’s ability to subpoena cell phone evidence in its entirety because the information that resides with cell phone carriers is not protected by a heightened expectation of privacy.1 This is particularly the case with the advent of the Communications Assistance for Law Enforcement Act (CALE) in which Congress codified a statutory scheme for prosecutors to access information beyond the scope of the actual content of a wireless communication.2

Use of a cell phone may supply evidence in a criminal prosecution. Notably, the Federal Communications Commission has promulgated regulations requiring wireless communications carriers to have the capability to determine the location from which a mobile phone call originates to within 125 meters; however, additional information (and potential evidence) resides with the cell phone carriers (e.g., the location of each cell phone every few minutes during the period it is turned on). This regulatory requirement may result in a cell phone feature that has evidentiary value associated with it. For example, cell phone usage in many criminal cases are tied into “911” emergency calls, recordings of which are a standard item of evidence to which a defendant is entitled in most jurisdictions. These 911 emergency calls to the police are typically the first point of contact an alleged victim or witness has with law enforcement.

Phone calls to contemporary 911 response systems are answered by an emergency operator dispatch at a centralized Public Safety Answering Point (PSAP).3 If the call is from a traditional landline telephone, the local telephone company’s switching software automatically associates the calling telephone number with address information stored in a phone company database and forwards both pieces of information to the emergency operator. The emergency operator transmits the information to local first responders such as law enforcement or the fire department. Alternatively, if the emergency call to 911 is made from a cell phone, neither the phone number nor the location of the caller was available to the 911 operator until recently when GPS capabilities made it possible to locate a particular cell phone.

It has been argued that cellular call location information is sufficiently different from information about the phone numbers dialed from a telephone (i.e., that location information reveals more about an individual’s private life) that the analysis applied by the Supreme Court in Smith v. Maryland is inapplicable.4 Importantly, there are state and federal statutes that demand attorneys have an understanding of e-discovery surrounding telecommunications and other forms of ESI that may fall within the penumbra of “communications” protected by privacy statutes such as the Electronic Communications Privacy Act (ECPA).5


II. Statutory Overview For Accessing Cell Phone Evidence
The law governing cellular and electronic evidence in criminal investigations has two primary sources: (1) the statutory privacy laws codified at 18 U.S.C. §§ 2510-22 (Wiretap Statute), 18 U.S.C. §§ 2701-12 (ECPA) and 18 U.S.C. §§ 3121-27 (Pen/Trap Statute); and (2) the Fourth Amendment of the U.S. Constitution. This legal framework and the manner in which it will likely (but not necessarily always) be applied are discussed below.

A. Government’s Use of ECPA To Pursue Evidence
Previously, at the federal level, law enforcement could not obtain a wiretap order to intercept wire communications (those involving the human voice) for violations of the Computer Fraud and Abuse Act under 18 U.S.C. § 1030. However, Section 202 of the USA Patriot Act of 2001 amended 18 U.S.C. § 2516(1) by expanding the felony violations of 18 U.S.C.
§ 1030 to the list of predicate offenses providing a means for law enforcement to obtain a wiretap order.6 As a result, Congress has broadened the government’s ability to investigate suspected criminal activity through the use of information derived from telecommunications.
The ECPA provides statutory guidelines on how the government may acquire information from telephone companies concerning customer accounts, Internet service providers, and similar entities.7 Inasmuch as there is no Fourth Amendment right of privacy in such records, ECPA “creates statutory privacy rights” in this information. Prosecutors can use a grand jury subpoena to acquire the following information about a telephone service subscriber:
  • Name;
  • Address;
  • Local and long distance telephone connection records, or records of session times and durations;
  • Length of service (including start date) and types of service utilized;
  • Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
  • Means and source of payment for such service (including any credit card or bank account number).
In certain circumstances, prosecutors can obtain the information — and potentially evidence — without providing prior notice to the phone service subscriber. Government officials can obtain such information plus its contents stored electronically for more than 180 days if they use a subpoena and either: (1) inform the customer of the subpoena; or (2) utilize a statutory procedure permitting the government to delay notifying the customer about the subpoena and its requirements for a period of up to 90 days.8

To obtain such an order, the prosecutor must show that notifying the customer about the subpoena could: (1) endanger someone’s life or physical safety; (2) cause a guilty person to flee prosecution; (3) cause evidence to be destroyed or altered; (4) generate efforts to influence potential witnesses; or (5) otherwise seriously jeopardize the investigation.9 If the government so requests, a court can extend the 90-day period during which the company is barred from informing its customer about the subpoena.10 If a court enters an order barring the company from notifying its customer, the government is then obligated to advise the customer about the subpoena once the period encompassed by the court’s order (and any extensions of the order) has expired.11

One of the many challenges the ECPA presents to defense counsel is the government’s ability to seize electronically stored evidence in the control of third parties that provide the capability for a defendant to communicate in the first instance (cell phone carriers, Internet service provider accounts, Web-based e-mail accounts).12 Such third parties have authority to access evidence provided relating to stored communications, and it is very difficult for a defendant to challenge its seizure.13


B. Fourth Amendment Protections
Because of the growth of fiber optics and wireless services, CALE expands the coverage of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 to include call-identifying information, electronic messaging and information services, and telecommunications carriers. It also incorporated additional mechanisms for increasing privacy rights.14 However, the status of the cell phone user may have an impact on whether there was an expectation of privacy, and analyses should be conducted on a case-by-case basis. For example, as with a computer issued by an employer, an individual user of a personal cell phone would likely have a higher expectation of privacy than one issued by a private employer.15

With respect to public sector employees, counsel must remember that searches conducted by governmental employers of information created by its employees may trigger the Fourth Amendment.16 One could argue that information created on a wireless device issued by a public sector employer for business and personal use may create standing for challenging its seizure. For example, one may challenge seizure of ESI contained on the handheld itself; however, as with seizure of electronic evidence in the private sector, the government can utilize a subpoena to a wireless communications or Internet service provider that will likely furnish similarly corroborative evidence in a different form. The major distinction, of course, is that it is highly unlikely that an actual conversation between a defendant and witness was recorded without wiretap implications; however, voicemail may be equally accessible via the cell phone service carrier as via the handheld itself.

Although Title III’s protections have been increased for cordless and cell phones, there is no protection “from the government acquiring by a grand jury subpoena noncontent-related billing information about local calls.”17 In addition to CALE, the Telephone Records and Privacy Act of 2006 functions, inter alia, to protect private information concerning customers maintained by telecommunications carriers.18 Despite legislative intent to provide law enforcement with a means of accessing telecommunication evidence, CALE should not be interpreted as preempting the ECPA. Furthermore, counsel must continually pay attention to what kind of evidence the government is seeking (or has already acquired) from cell phone carriers. CALE supports law enforcement efforts; however, it does not relieve the prosecution from conforming to the Fourth Amendment when recovering cell phone evidence from a defendant.19

In order to challenge the search and seizure of evidence under the Fourth Amendment, counsel must show that the defendant had a legitimate expectation of privacy in the place searched or the item seized.20 Alternatively, if the government unlawfully seized evidence in a fashion that could exculpate a defendant, the accused is entitled to discover this information and determine its strategic impact on the prosecution.21

Fourth Amendment challenges to the seizure of cell phone evidence are difficult where there are statutory schemes such as the ECPA that provide the government with a medium to secure ESI relating to cell phones that otherwise would be ascertainable only through a search warrant. Counsel should also note that the ECPA expanded Title III to “update and clarify federal privacy protections and standards in light of dramatic changes in new computer and telephone communications technology.”22

Aside from real-time communications between parties, most other information maintained by cell phone carriers about a subscriber’s account is typically accessible to prosecutors. Similar to other business records, a defendant does not have a protected privacy interest in information that may lead to evidence the defendant may attempt to argue should be protected as a reasonable realm of privacy.23

A question counsel may raise is whether ascertaining messaging data residing on a cell phone’s memory card to determine the location of a defendant differentiates from tracking data residing on pagers or beepers. Counsel must bear in mind that law enforcement regularly relies upon cell phone evidence to determine the position of a defendant in order to “place” the accused at a particular geographic area. The U.S. Supreme Court has held that obtaining such evidence does not violate the Fourth Amendment.24 Notably, cell phones have paging capabilities, and therefore, the prosecution may advance the argument that the paging concept is analogous to cell phone messaging and should be treated as such.

The Fourth Amendment protects the defendant’s reasonable expectation of privacy when wireless communication information has been seized merely to engage in a governmental fishing expedition for evidence to hopefully link the defendant to a crime. To pursue cell phone evidence, law enforcement typically must in the first instance seize the hardware either incident to arrest, with consent or pursuant to a search warrant.25 There is arguably no reasonable expectation of privacy in the information relating to calls that are placed to a cell phone at the time that they are made. However, the retrieval of telephone numbers or numeric codes that are stored in a cell phone’s memory without a warrant should be construed as an “interception” of a communication in violation of Title III and should be suppressible.

A 2009 decision in Virginia indicates that courts will require cell phone owners to take steps to protect phone contents before privacy expectations will attach. In Casella v. Borders,26 plaintiff Jessie Casella alleged violations of 42 U.S.C. § 1983 and intentional infliction of emotional distress. The action arose when her boyfriend was arrested and subsequently searched without a warrant. Police officers discovered a cell phone, which Casella claimed she lent to her boyfriend two months before the arrest. The phone contained nude pictures of the couple. Plaintiff alleged that the arresting officers opened the pictures folder of the phone, discovered the pictures, and made them available to other officers and members of the public.

The court in Casella said the pictures could have been exposed to a variety of different parties without plaintiff’s consent under many scenarios, including a police search. Given such possibilities, plaintiff’s lack of possession and control over the phone, and plaintiff’s failure to allege any precautions that she took to exclude others from accessing the cell phone, the court refused to hold that plaintiff’s expectation of privacy in the pictures was objectively reasonable. Thus, she lacked standing to sue under § 1983 for a Fourth Amendment violation.


III. Case Law Permitting Seizure of Cell Phone Evidence
As discussed above, cell phone evidence may be obtained by the government through subpoena pursuant to the ECPA, Pen/Trap statute, or another statute. In the alternative, there are situations where courts have permitted the government to utilize cell phone evidence seized under an exception to the warrant clause of the Fourth Amendment.

The recent holding in United States v. Santillan by the District of Arizona is a good example of how cell phone evidence may be recovered by the prosecution pursuant to an exception to the Exclusionary Rule.

In Santillan, a customs agent observed defendant Manuel Santillan jogging back and forth near the Arizona-Mexico border, paying close attention to traffic, and talking on a cell phone. Santillan was eventually determined to be involved in drug trafficking activity and indicted for conspiracy to possess with intent to distribute marijuana, and possession with intent to distribute marijuana. The defendant moved, inter alia, to suppress evidence derived from the cell phone seized from him that he was using immediately prior to the arrest. The court held that the officers had probable cause for the arrest.27 The defendant argued that federal agents had seized the phone and acquired evidence without a warrant as mandated by the Fourth Amendment. The court disagreed and found that the cell phone was properly seized pursuant to the exigent circumstances and plain view exceptions to the requirement for a warrant.28 Moreover, the court held the search was lawful as incidental to arrest, and that the inevitable discovery and independent source doctrines likewise functioned as exceptions for the federal agents to seize the cell phone and evidence derived from it.29

As discussed above, the government may essentially obtain cell phone evidence either: (1) pursuant to a subpoena or warrant consistent with CALE and ECPA protocol; or (2) by means that either provided consent or provided a well-founded legal exception to the warrant requirement of the Fourth Amendment. Like the Santillan case, the case of United States v. Valdez is another recent example of a court finding governmental authority to obtain cell phone evidence that did not violate a defendant’s constitutional rights.30

In Valdez, the magistrate judge issued a recommendation that the defendant’s motion to suppress cell phone evidence seized by law enforcement in a narcotics case be denied. The defendant objected to the findings by the magistrate judge and pursued a de novo review by the trial judge.31 Although the court adopted the magistrate’s recommendation to deny the motion to suppress in its entirety, Valdez is an interesting opinion that outlines the government’s authority to seize cell phone evidence based on exceptions to the Fourth Amendment’s warrant clause. Detectives searched the defendant’s person and recovered a cell phone, which the searching detective handed to the second detective while the search incident to the arrest was being completed. Upon completion of the search, about one minute after he initially recovered the phone, the searching detective retrieved the cell phone from the second detective and proceeded to open the phone, viewing the phone’s address book and calling history.

During the suppression hearing, the searching officer provided testimony that he immediately searched defendant’s cell phone, concerned that the information contained therein (e.g., call history and the address book) could be erased remotely or lost should the cell phone become deactivated. The detective testified that he had received information from other drug investigators, and recalled that the wireless communications carrier at issue permits customers to remotely delete information on their cell phones, including the call history and address book.32 The court ultimately found that the detectives in Valdez acted properly by seizing evidence incident to a lawful arrest, and where there were exigent circumstances that the cell phone evidence could be lost or destroyed.33


IV. Procedural and Tactical Issues
Since nearly all defendants or witnesses use cell phones, it is highly likely that such evidence will be pursued by the prosecution where it corroborates a prosecution, or in the alternative, sought after by the defense where it could lead to exculpatory or impeachment evidence. Litigating e-discovery issues concerning suppression of evidence, admissibility of evidence, and expert witnesses comes to the forefront whenever ESI resides in wireless communication devices.

A. Moving to Suppress Cell Phone Evidence
As discussed earlier, the prosecution can support its case with evidence from cell phone providers or the phone itself as long as the evidence does not violate the ECPA or the defendant’s Fourth Amendment rights. Suppression arguments are done on a case-by-case basis. The following are just some examples of significant questions counsel should consider in order to determine whether electronically stored evidence seized by the prosecution was lawful and whether the seizure of evidence should be challenged.
  • Was the ESI obtained either pursuant to a search warrant or as a result of gaining consentv Did the law enforcement agency seizing the evidence follow standard guidelines on cell phone forensics?34
  • If it was seized without a warrant or consent, was the ESI seized pursuant to a well-founded legal exception?
  • Is the evidence testimonial and subject to Crawford v. Washington scrutiny and Melendez-Diaz scrutiny?
  • Was the information seized the subject of statutory protection or legal privilege (e.g., attorney-client or patient-doctor privileges or spousal disqualification)?
  • Was the evidence seized described in the affidavit to the search warrant and within its scope?
  • Is the evidence beyond the scope of a grand jury or administrative subpoena?
  • Has the evidence been obtained from a collateral legal proceeding as a pretext for gaining admissibility in a criminal prosecution?
  • Was the evidence obtained from a workplace computer owned by a private or public employer?
  • Does the cell phone evidence contain any additional information that would not have reasonably been either discovered inevitably or as a result of an independent source?
  • Did a constitutional right attach that was violated by the seizure of evidence such as the Fifth Amendment right against self-incrimination or the Sixth Amendment right to counsel?

B. Challenging the Admissibility Of Cell Phone Evidence
The seizure of cell phone evidence by the prosecution does not mean that the evidence is admissible.35 Therefore, defense counsel must determine whether the government can properly admit the ESI into evidence. Counsel must analyze whether evidence not excluded by an order on a motion to suppress may still be subject to exclusion pursuant to a motion in limine prior to the start of trial. The following evidentiary challenges could be raised by the defendant concerning the admissibility of cell phone evidence.
  • Relevance: Was the ESI seized from the cell phone the kind of evidence that is truly relevant to the prosecution or is it collateral?36
  • Authenticity: Is the evidence derived from the cell phone or produced by a third party concerning the phone reliable, and can the prosecution establish a proper foundation to support offering the evidence?37
  • Hearsay: Is the cell phone evidence (such as documents provided by a cell phone carrier, text messages derived from a phone, or digital forensic results of an exam of the phone) the kind of information being offered into evidence for its substantive truth and has it met the evidentiary requirements to become admissible?38
  • Best Evidence: Is the evidence being offered the original seized by the prosecution or is it an iteration of evidence that is essentially reconstructed?39
  • Probative v. Prejudicial (Balancing Test): Does the probative value of the evidence being offered become substantially outweighed by the apparent risk to the court of unfair prejudice to the defendant (e.g., cell phone records of calls to unrelated notorious parties to prove guilt by association)?40
  • Appellate Issues: Has the defense strategy surrounding cell phone evidence properly preserved objections and other related arguments (e.g., offers of proof) concerning evidence the defendant seeks to challenge on appeal?

C. Using Expert Witnesses
Expert witnesses are essential resources to consider. If used efficiently and intelligently, they can be important to a criminal defense. It is important early on for counsel and client to decide which “hat” the expert will wear in the course of the defense to assure the client is receiving the most effective legal representation possible. Will the expert be retained as a member of the litigation team? If not, will the expert be an independent third-party witness who will not become privy to attorney-client communications, work product, or joint defense protected documents and communications?

A “consulting expert” may play an important role by educating counsel as to the nature of the ESI and the methods for handling such evidence. Cell phone ESI can be valuable impeachment evidence. Moreover, it can corroborate an alibi or present exculpatory, nonexculpatory, or mitigating defenses. Therefore, proper handling of electronically stored evidence is important. The consulting expert may also assist counsel in litigating cell phone evidence issues. For example, counsel may consider filing a motion for the court to order a subpoena for cell phone records from a third party, which, depending on what is sought, may be more clearly stated to the court if an expert assists counsel with a supporting affidavit. In addition, when defense counsel inspects electronic evidence an expert can guide counsel as to whether the evidence was seized and handled properly by the prosecution.

Another issue counsel should consider is the need for a “testifying expert.” For example, testifying experts can be the deciding factor supporting motions for discovery as well as the suppression or inadmissibility of evidence (e.g., spoliation of evidence, failure to assign taint team, etc.). Admissibility of an expert’s testimony either by way of oral testimony or affidavit is governed by standards articulated in rules and decisions such as Daubert v. Merrell Dow Pharmaceuticals, Inc.41 Therefore, engaging expert witnesses with law enforcement experience who are familiar with best practices, standard operating procedures, and industry protocol for handling cell phone evidence should be considered where law enforcement officers have become reliant on cell phone evidence. One example of this is the Kentucky state prosecution of defendant Robert Drown. State police investigators asserted they were able to tie the defendant to the alleged murders of a female victim and her two daughters through the defendant’s and mother-victim’s cell phone records.42 The Daubert hearing involved questioning of a cell phone evidence expert concerning, among other issues, the concept that “tying cell phone calls to the towers from which they originated was a fairly exact science.”43

Regardless of the kind of expert witness a defense team may retain, the expert must be able to pass the applicable factors for qualification. The U.S. Supreme Court held that the federal rules supersede the previous Frye test that required novel scientific expert testimony to be based on a scientific principle or discovery that has “gained general acceptance in the particular field in which it belongs.”44 Daubert held that the trial court is the “gatekeeper,” deciding the admissibility of the evidence using the preponderance of the evidence standard.45 Daubert does not trump state courts from determining their own standards of expert witness admissibility consistent with local procedural rules. Nevertheless, it is prudent for defense counsel to determine immediately whether an expert is qualified to support the defense and impeach the testimony of the prosecution’s forensics witness on such issues as cell site location, GPS, text messaging, and other commonly used wireless communication features.

V. The Future of ESI Beyond Cell Phones
It is important for criminal defense attorneys to recognize that as the mobile communications industry continues to grow, audio communications will not strictly be limited to land lines, cell phones, and their respective voicemail systems. With the emergence of enhanced data and “Voice Over Internet Protocol” communications services, the popularity of transmitting voicemail in digital formats is growing, and there are service providers that are able to transcribe voicemail into text to be transmitted to a cell phone or handheld device. Individuals as well as corporations are subscribing to services that provide the ability to leave voicemails for recipients via “wave” or “mp3” files attached to e-mail both on computer terminals and cell phones. As with e-mail, there is a growing likelihood that voicemail recordings and other sources of evidence derived from cell phone use will be maintained by third-party service providers as telecommunication services become more unified.

It is essential for counsel to be familiar with voicemail as a communication medium because, as discussed above, the government can subpoena e-mail documents from independent service providers, and will likely be able to do so with respect to other digitally based communication services such as “electronic facsimiles” and “Web conferencing,” which are services that cell phone carriers are providing as add-on features. Notably, as a result of the publicity regarding the traps inherent in using e-mail, people are more frequently employing other means of electronic communications such as voicemail in their attempts to avoid detection, not realizing that such means do not insulate them from scrutiny by the government through electronic discovery. Therefore, in order to effectively defend criminal matters, defense attorneys must keep abreast of developments concerning electronic evidence and discovery and keep current with respect to both the rapidly evolving legal authorities and technologies used by clients.


Notes
1. See In re Pen Register & Trap/Trace Device With Cell Site Location Auth., 395 F. Supp. 2d 747 (D. Tex. 2005); see also United States v. Forest, 355 F.3d 942 (6th Cir. 2004) (federal agents tracked defendant’s location by dialing defendant’s cell phone (without allowing it to ring) several times to determine the general vicinity of the defendant).
2. In re Matter of Grand Jury Subpoenas to Southwestern Bell Mobile Systems, Inc., 894 F. Supp. 355, 359 (M.D. Mo. 1995) (finding that the “primary purposes of CALE were to clarify the carrier’s duty to assist law enforcement in light of technological advances in electronics communications and to address various privacy concerns such as increasing the restrictions on the interception of conversations over cordless phones”), citing H.R. 103-827, 103d Cong. 2d Sess., reprinted in 1994 U.S.C.C.A.N. 3489-90.
3. See In the Matter of Revision of the Commission’s Rules to Ensure Compatibility With Enhanced 911 Emergency Calling Systems, Report and Order and Further Notice of Proposed Rulemaking, Fed. Comm. Comm’n, CC Docket No. 94-102, Jul. 26, 1996 ¶ 3.
4. Smith v. Maryland, 442 U.S. 735 (1979). See California v. FCC, 75 F.3d 1350 (9th Cir.1996) (holding that a “phone number is not among the select privacy interests protected by a federal constitutional right to privacy,” and therefore an FCC rule regarding caller identification telephone service does not infringe upon a subscriber’s Fourth Amendment rights).
5. See United States v. Councilman, 418 F.3d 67, 79 (1st Cir. 2005) (discussing, among other issues related to e-mail, the Electronic Communications Privacy Act and the Stored Communications Act, finding an interception of e-mail to be violative of the Wiretap Act, the U.S. Court of Appeals for the First Circuit held: “[T]he term ‘electronic communication’ includes transient electronic storage that is intrinsic to the communication process for such communications. That conclusion is consistent with our precedent.”).
6. Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence Enacted in the USA Patriot Act of 2001; available at http://www.usdoj.gov/criminal/cybercrime/PatriotAct.htm.
7. See U.S. Department of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009), available at http://www.cybercrime.gov/s&smanual2009.pdf.
8. See 18 U.S.C. §§ 2703, 2705(a)(1)(B) (To obtain the contents of electronic communications that have been in storage for less than 180 days, prosecutors must use a search warrant. See, e.g., Guest v. Leis, 255 F.3d 325, 339-340 (6th Cir. 2001)).
9. See 18 U.S.C. § 2705(a)(2).
10. See 18 U.S.C. § 2705(a)(4).
11. See 18 U.S.C. § 2705(a)(5).
12. See L. Camille Hebert, Employee Privacy Law, § 8A:16 (citing 18 U.S.C.
§ 2510(17) defining “electronic storage” as “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof” and “any storage of such communication by an electronic communication service for purposes of backup protection of such communication”).
13. See for comparison United States v. D’Andrea 497 F. Supp. 2d 117, 119 (D. Mass. July 20, 2007) citing Smith v. Maryland, 442 U.S. 735 (1979) (“Smith line of cases has led federal courts to uniformly conclude that Internet users have no reasonable expectation of privacy in their subscriber information, the length of their stored files, and other noncontent data to which service providers must have access”).
14. See 18 U.S.C. §§ 2510-2521, 2701-2711, 3121-3127 (1996).
15. See United States v. Bailey, 272 F. Supp. 2d 822 (D. Neb. 2003) (finding employer had clear e-mail monitoring policy, the court upheld seizure of contents — pursuant to subpoena — of defendant’s e-mail account at his place of employment by employer that were submitted to FBI).
16. See O’Connor v. Ortega, 48 U.S. 709, 715 (1987) (“Searches and seizures by governmental employers or supervisors of the private property of their employees … are subject to the restraints of the Fourth Amendment.”).
17. In re Matter of Grand Jury Subpoenas to Southwestern Bell Mobile Systems, Inc., 894 F. Supp. at 359 (W.D. Mo. 1995).
18. U.S. Department of Justice, First Indictment Filed Under Telephone ‘Pretexting’ Statute (December 30, 2008), available at http://www.cybercrime.gov/andersonIndcit.pdf.
19. See Katz v. United States, 389 U.S. 347, 359 (1967) (“Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored the procedure of antecedent justification that is central to the Fourth Amendment, a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner’s conviction, the judgment must be reversed.”).
20. Smith v. Maryland, 442 U.S. 735 (1979); Maryland v. Garrison, 480 U.S. 79, 84 (1987) (discussing the warrant clause of the Fourth Amendment the Court held that “[it] ensures that the search will be carefully tailored to its justifications, it will not take on character of the wide-ranging exploratory searches the framers intended to prohibit.”). See also United States v. Comprehensive Drug Testing, Inc., — F.3d —, 2009 WL 2605378 (9th Cir. 2009) (plain view cannot be a pretext for search warrants seeking ESI beyond their scope, and outlining a protocol for seizure and discussing Fed. R. Crim. P. 41).
21. Brady v. Maryland, 373 U.S. 83 (1963).
22. Joel Androphy, 4 White Collar Crime
§ 44:28 (2d ed.) citing S. REP. NO. 541, 99th Cong., 2d Sess, reprinted in 1986 U.S.C.C.A.N. 3555, 3586.
23. See United States v. Whitten, 706 F.2d 1000 (9th Cir.1983) (no Fourth Amendment protection in an audible message left on a telephone answering machine).
24. See United States v. Knotts, 460 U.S. 216 (1983) (“monitoring the signal of a beeper placed in a container of chemicals that were being transported to the owner’s cabin did not invade any legitimate expectation of privacy on the cabin owner’s part and, therefore, there was neither a ‘search’ nor a ‘seizure’ within the contemplation of the Fourth Amendment”). But see People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009), in which the New York Court of Appeals held that the installation and surreptitious use of a GPS device to monitor an individual’s whereabouts require a warrant supported by probable cause. The court of appeals discussed the similarities and differences in the Weaver and Knotts cases.
25. United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009) (gun and drug case holding as a matter of first impression that search of defendant’s cell phone data incident to his arrest was reasonable).
26. Casella v. Borders, — F. Supp. 2d —, 2009 WL 2778102 (W.D. Va. Sept. 2, 2009).
27. See United States v. Santillan, 571 F. Supp. 2d 1093 (D. Ariz. July 14, 2008).
28. Id.
29. Id.
30. United States v. Valdez, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008).
31. See Fed. R. Crim. P. 59(b)(3).
32. Id.
33. United States v. Valdez, 2008 WL 360548, slip. op. (E.D. Wis. Feb. 8, 2008) citing the following courts upholding seizure of ESI contained in cell phone:
United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.), cert. denied, — U.S. —, 127 S. Ct. 2065, 167 L. Ed. 2d 790 (2007) (denying motion to suppress call records and text messages retrieved from cell phone searched incident to arrest); United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278-79 (D. Kan. 2007) (collecting cases upholding cell phone searches incident to arrest); United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005) (upholding seizure of the defendant’s cell phone incident to arrest and accessing of the phone’s call log, phone book, and wireless Web inbox); see also United States v. Dennis, No. 07-008, 2007 WL 3400500, at *7 (E.D. Ky. Nov. 13, 2007) (relying on Finley to uphold cell phone search incident to arrest); United States v. Lottie, No. 3:07-cr-51, 2007 WL 4722439, at *2-4 (N.D. Ind. Oct. 12, 2007) (upholding search of cell phone incident to arrest and based on exigent circumstances); United States v. Young, Nos. 5:05CR63-01-02, 2006 WL 1302667, at *13 (N.D. W.Va. May 9, 2006) (upholding search of cell phone where evidence showed that numbers could be erased or lost when phone was de-activated).
34. See Guidelines on Cell Phone Forensics, National Institute of Standards and Technology (U.S. Dept. of Commerce), available at http://csrc.nist.gov/publications/nistpubs/800-101/SP800-101.pdf.
35. See Fed. R. Crim. P. 16.
36. Fed. R. Evid. 501.
37. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (defendant entitled to witness-analyst confrontation to ensure protection of Sixth Amendment rights). See Fed. R. Evid. 901(a); see also United States v. Hunter, 2008 WL 399150 (9th Cir. 2008) (government properly authenticated the text messages by using the testimonies of the senior manager of the pager’s service provider, the FBI agent who compiled the records, and the defendant’s co-conspirators).
38. Fed. R. Evid. 801.
39. Fed. R. Evid. 1001-1008.
40. Fed. R. Evid. 403.
41. See Daubert.
42. Judge to Rule on Cell Phone Evidence, Daily Independent Newspaper (Apr 22, 2009) available at http://www.dailyindependent.com/local/local_story_111234802.html.
43. Id.
44. 3 Wharton’s Criminal Evidence
§ 13:5 (15th ed.) citing Frye v. United States, 293 F. 1013 (App. D.C. 1923).
45. See Fed. R. Evid. 104(a).


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