Training Your Defense Team to Win

II. Using Technology for the Win

The key to successfully trying a case is to keep constant and efficient communication with your defense team. Lead counsel should allocate responsibilities among the members of the team, determining, based on the needs of the particular client and case, who will assume the various roles and duties (Miller, The Defense Team in Capital Cases. To accomplish effective communication, the defense team must use technology to its advantage.

An effective solution is creating personal cloud storage. This method creates upfront costs but allows an office to forego subscriptions to a third-party provider to store your clients files. A great alternative to public cloud computing is to create your own cloud with a Network Attached Storage (NAS) peripheral. Every law office, big or small, should have their personal cloud.

An NAS resembles an external drive [b]ut instead of connecting to a computer directly, it connects to a network via a network cable (or Wi-Fi) and offers storage space to the entire network at the same time. The drives will connect wirelessly to your Wi-Fi allowing you and your defense around the clock access to all of your clients files. They are all password protect and best of all, they abjur the need for relying on a third-party to secure your files. With your personal cloud, your files are on location not at some remote server. There are drawbacks at this time, however they are slight.

First, the transfer rate is considerable slower than an internal drive, but that should not be your focus. Rather your focus should be on drive capacity (how much space the drive has). The other drawback is if some office mishap occurs and the drive is destroyed, you will lose all of your files. However, the convenience an NAS will provide your defense team cannot be overlooked. It will assist your team on keeping constant and effective communications. Every office should invest in this technology.

While corporations like Apple may claim that the cloud services they offer is protected and safe, there is no way to be sure. It is important to make sure your communications are safe. While communications from within your office team should be safe from government interference, there is no way to know that communications with your client will be protected over the cloud. In 2012 alone, the government sent Google over 21,000 requests for information affecting over 33,000 users. Microsoft received over 70,000 request affecting over 120,000 accounts.

It cannot be understated that at its core, using the Cloud through Google or Apple means that you are essentially keeping your data on someone else server. Google Director of Security for Google apps, Eran Feignenbaum has said himself that, while he believes that the Cloud is safe for public and sensitive date, it should not be used for top secret data. Should defense attorneys not consider their constitutionally protected communications to be top secret? Or are they only sensitive? Whether our clients are accused of selling pot to their friends or selling arms to Iran, they probably consider the strategy and work of their attorneys to be top secret. At the time of publishing their article in 2011, the ABA would not consider Dropbox a recommendable storage option for confidential documents, due to encryption issues. Due to these security issues, it is a best practice to only use a privately owned cloud or remotely accessible server like the one described above.

III. The Electronic Frontier Post-Jones

A. United States v. Jones, 132 S. Ct. 945 (2012).

In U.S. v. Jones, the Supreme Court held that the installation of a GPS tracking device on a suspects vehicle, as well as the monitoring of the movements of that vehicle, constituted a search under the Fourth Amendment. United States v. Jones, 132 S. Ct. 945, 949 (2012). The Court held accordingly due to the governments physical occupation of private property for the purpose of gathering information. Id.
Antoine Jones, a nightclub owner in Washington D.C., had become the focus of an investigation by the FBI and Metropolitan Police Department. Id. at 947. Based on information gathered from a variety of sources, including visual surveillance of the nightclub and a wiretap of Jones cell phone, the government obtained a warrant for the use of an electronic tracking device to be installed on the undercarriage of the vehicle registered to Jones wife. Id. The warrant authorized the installation of the device in the District of Columbia within 10 days. Id. The GPS tracking device was installed on the 11th day in Maryland. Id.

By use of the device, the government obtained over 2,000 pages of data over a 4-week period. Id. at 948–49. In 2007, after a hung jury the year before, the government used, once again, the data obtained from the use of the GPS device to connect Jones to the location that contained 97 kilograms of cocaine and $850,000 in cash. Id. at 949. Jones was sentenced to life in prison. Id. The U.S. Court of Appeals for the District of Columbia Circuit reversed the conviction of Jones, explaining that the warrantless use of the GPS device was a violation of the Fourth Amendment. United States v. Maynard, 615 F.3d 544, 568 (D.C. Cir. 2010).

The Supreme Court unanimously affirmed the decision of the appeals court. Jones, 132 S. Ct. at 945. The reasoning employed by the Justices, however, differed. Justice Scalia based the majority opinion on the fact that the government had physically occupied private property for the purpose of obtaining information without a warrant. Id. The text of the Fourth Amendment, Justice Scalia explained, demonstrates the close connection to property. Id. The Court explained the common-law trespassory test for what could be described as a Fourth Amendment violation per se. Id. at 952. Looking to language previously used by the Court, Justice Scalia explained, when the government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment. Id. at 951 (citing United States v. Knotts, 460 U.S. 276, 286 (1983)). Essentially, if the government takes up space on private property without a warrant, there is a strong presumption that a violation of the Fourth Amendment has occurred. The Court went on to distinguish the facts in Jones from the previous cases, United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 705 (1984) where the Court upheld government actions in which tracking devices were placed in a defendants care by noting that in both Knotts and Karo, the beeper used by the government was installed in the container to be tracked before the container came into the possession of the defendant. Id. at 952 (As in Knotts, at the time the beeper was installed the container belonged to a third party and it did not come into possession of the defendant until later. (citing United States v. Karo, 468 U.S. 705, 708 (1984))).

Justice Sotomayor noted in her concurrence that in situations involving new forms of electronic surveillance the majority opinions trespassory test would not provide the necessary guidance. Id. at 955 (Sotomayor, J., concurring). With Justice Scalia-like wit, Justice Alito began his concurrence by noting the irony of the majority of the Court deciding a case involving 21st- century surveillance techniques by applying 18th-century tort law and pointing out that in Jones, the government might have provided grounds for a 1791 suit for trespass to chattels. Id. at 957
(Alito, J., concurring).

The main point of difference in the Court was the analysis of when and how to apply the two part test developed in Katz v. United States, 389 U.S. 347 (1967). This test was explained by Justice Harlan in his concurrence and has become the strong point of the Katz opinion. The test inquires if a private citizen can meet two requirements in order to establish that a violation has occurred, first that a person have exhibited an actual (subjective) expectation of privacy and, second that the expectation be one that society is prepared to recognize as ‘reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). The majority opinion in Jones did point out, [s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis. Jones, 132 S. Ct. at 953. Justice Scalia opined that the Katz test added to, not substituted for, the common-law trespassory test. Id. at 952 Justice Alito, on the other hand, stated that Katz finally did away with the old approach, holding that a trespass was not required for a Fourth Amendment violation. Id. at 959 (Alito, J., concurring).

The opinion of the Court did establish that in situations in which officers have physically occupied private property of the purpose of obtaining information, a search within the meaning of the Fourth Amendment has occurred. Id. at 949. The Court, however, did not provide further guidance as to when and how to apply the Katz test to situations involving 21st-century surveillance techniques or as Justice Alito would have framed the issue before the Court, whether respondents reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove. Id. at 958 (Alito, J., concurring).

The holding in Jones did not, as the media reported, require a search warrant to attach a GPS device; that question was not answered. Both the concurring opinions by Justices Sotomayor and Alito raise several more questions that the majority's reliance on trespass theory seems inadequate to answer. A decision on factory or owner installed vehicle track devices or GPS enabled smartphones are absent from the opinion of the Supreme Court. Id at 956 (Sotomayor, J,. concurring). In a companion case Chief Judge Kozinski of the Ninth Circuit dissenting from the denial of rehearing en banc proclaims 1984 may have come a bit later than predicted, but its here at last. United States v. Pineda-Moreno, 617 F.3d 1120 (9th Cir. 2010).

In an almost fatalistic dissent Chief Judge Kozinski lays out the argument that seemed to have great sway over Justice Sotomayor. The facts of Pineda-Moreno are very similar to Jones and yet the Ninth Circuit came to the conclusion that that entering onto Pineda-Morenos property and attaching a tracking device to his car required no warrant, probable cause, founded suspicion or by-your-leave from the homeowner. The panel further held that downloading the data from the GPS device, which gave police the precise locus of all of Pineda-Mo
renos movements, also was not a search, and so police can do it to anybody, anytime they feel like it. Pineda-Moreno, 617 F.3d at 112. Kozinski continues that:

if you have a cell phone in your pocket, then the government can watch you. At the governments request, the phone company will send out a signal to any cell phone connected to its network, and give the police its location. Last year, law enforcement agents pinged users of just one service provider-Sprint- over eight million times. The volume requests grew so large that the 110-member electronic surveillance team couldn't keep up, so Sprint automated the process by developing a web interface that gives agents direct access to users location data. Id at 1125 (internal quotations omitted).

The Government has this power but it still must establish and the 5th circuit and the Western District of Texas have their individual case law regarding it.

The Third Circuit held in United States v. Katzin, 732 F.3d 187 (3d Cir. 2013), that there is no hesitation in holding that the police must obtain a warrant prior to attaching a GPS device on a vehicle, thereby undertaking a search that the Supreme Court has compared to a constables concealing himself in the targets coach in order to track its movements. United States v. Katzin, 732 F.3d 187, 198 (3d Cir. 2013) (quoting Jones, 132 S. Ct at 950 n.3.). The Court explained that [vc_row][vc_column][vc_column_text][w]hile the interests the police wished to further in this case are certainly important, the same interests arise in every investigation where the police have a potential suspect. We are hard pressed to say, therefore, that the police can—without warrant or probable cause—embark on a lengthy program of remote electronic surveillance that requires almost no law enforcement resources and physically intrudes upon an ordinary citizens private property. Consequently, we hold that—absent some highly specific circumstances not present in this case—the police cannot justify a warrantless GPS search with reasonable suspicion alone and refused to accept the vehicle exception as a way for the government to sanction their search of Defendants vehicle through the ever-watchful electronic sentinel in order to collect future evidence. Id. 198-204.

B. Riley v. California, 134 S.Ct. 2437 (2014)

In Riley v. California, the Supreme Court unanimously held in order to search a cell phone seized post-arrest, law enforcement must get a warrant. Riley v. California, 134 S.Ct 2473 (2014) (holding a warrant is generally needed to search a cell phone incident to arrest). The Fourth Amendment is now firmly in the digital age.

A police officer initiated a traffic stop on David Riley where it was learned that his license was suspended. Id. Due to department policy, the vehicle was impounded and inventory search was conducted by another officer. Id. Subsequently, after finding loaded firearms under the hood, Riley was arrested. Id.

Upon a search incident to arrest, the police officer obtained a cell phone (smart phone) seized from Rileys pocket. Id. The officer searched the phone at the scene followed by a detective at the police station about two hours after the arrest. Id. The search turned up videos and photos with a connection to the Bloods. Id at 2481. Riley was tried and convicted of multiple felonies where the evidence obtained from the warrantless search of the cell phone was admitted into evidence. Id. The California Court of Appeals affirmed the conviction and the California Supreme Court denied Riley's petition for discretionary review. Id.

In an opinion written by Chief Justice Roberts, focused on qualitative and quantitative differences between data's physical counterparts. Id at 2489. Quantitatively, cell phones, which is a misleading shorthand, can hold millions of pages of text, thousands of pictures, or hundreds of videos. Id. Further, cellphones are essentially a container with many distinct types of information in a single location. Id. Chief Justice Roberts notes there is an element of pervasiveness that characterizes cell phones but not physical records. Id at 2490.

Also, these minicomputers are qualitatively different. Id. The Chief Justice looks to a 1926 opinion from Learned Hand, quoted in Chimel, observing it is ‘totally different thing to search a mans pockets and use against him what they contain, from ransacking his house for everything which may incriminate him. Id at 2490–91 (quoting United States v. Kirschenblatt, 16 F.2d 202, 203 (CA2)). If the individual has a cell phone on his person, this observation no longer applies.

Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital forma many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form– unless the phone is. Id at 2491.

Thus, on the question of whether law enforcement can conduct a warrantless search on a cell phone incident to arrest, the Court responded, Our answer to the question of what police must do before searching a cell phone seized incident to arrest is accordingly simple – get a warrant. Id at 2495.

IV. Nuts and Bolts of Cell Phones and How Evidence is Collected

When the first call was placed on a handheld mobile phone in 1973, the prototype device used was capable of less than 30 minutes of battery life and took 10 hours to re-charge. Today, the ownership of mobile devices has reached its critical mass both in the United States and globally. These devices function as our primary means of both daily communication and media interaction. In 2012, the average person sent/received 164.5 phone calls per month, used 644.1 voice minutes per month and sent/received 764.2 text messages per month. As Circuit Judge Posner noted in a 2012 opinion, a modern cell phone is a computer. United States v. Flores- Lopez, 670 F.3d 803, 804 (7th Cir. 2012).

A. Basic Cell Phone Location Technology

Basically, cell phones are very sophisticated radios. These phones are devices that can make and receive telephone calls over a radio link while moving around a wide geographic area. They accomplish this by connecting to a cellular network provided by a mobile phone operator, allowing access to the public telephone network.

A cellular network or mobile network is a radio network distributed over geographic areas called cells. Each cell is served by at least one fixed-location transceiver. These transceivers are known as a cell sites or base stations. In a cellular network, each cell uses a different set of frequencies from neighboring cells to reduce interference. When joined together these cells provide radio coverage over a wide geographic area. This enables a large number of portable transceivers (e.g., mobile phones, pagers, etc.) to communicate with each other and with
fixed transceivers and telephones anywhere in the network, via base stations, even if some of the transceivers are moving through more than one cell during transmission.

All cell phones have special codes associated with them that are used to identify the phone, the phones owner and the service provider. When you make a call from your phone it goes through a standard process that allows you to communicate with others.

First, when you turn the phone on, it attempts to locate a System Identification Code (SID). A SID is a unique 5-digit number that is assigned to each carrier by the Federal Communications Commission (FCC). The phone locates this SID on a control channel. A control channel is a special frequency that your phone and base station use to communicate about things like call set-up and channel changing. If the phone cannot find any control channels to communicate with, it knows it is out of range and displays a no service message. When it receives the SID, the phone compares it to the SID programmed into the phone. If the SIDs match, the phone knows that the cell it is communicating with is part of its home system.

In connection with the SID, your phone also transmits a registration request, and the Mobile Telephone Switching Office (MTSO) keeps track of the phones location in a database. This allows the MTSO to identify which cell you are in when it wants to connect to your phone. A MTSO is used for switching telephone calls among landline subscribers and mobile subscribers, the office controlling the call origination, termination and release of call from both the landline and the mobile subscribers, and providing a separation between the elements associated with each function for regulatory purposes.

When the MTSO receives a call it attempts to locate you. It will search its database to identify which cell zone you are in. The MTSO selects a frequency pair that your phone will use in that cell to take the call. The MTSO communicates with your phone over the control channel to tell it which frequencies to use, and once your phone and the tower switch on those frequencies, the call is connected and you are communicating by two-way radio.

As you move toward the edge of your cells range, your cells base station notes that your signal strength is diminishing. Meanwhile, the base station in the cell you are moving toward (which is listening and measuring signal strength on all frequencies, not just its own one- seventh) sees your phones signal strength increasing. The two base stations coordinate with each other through the MTSO, and at some point, your phone gets a signal on a control channel telling it to change frequencies. This hand off switches your phone to the new cell.

As you travel, the signal from your phone is passed from cell zone to cell zone. Lets say youre on the phone and you move from one cell to another, but the cell you move into is covered by another service provider and not your service provider. Rather than dropping your phones signal, your call will be transferred to the other service provider.

If the SID on the control channel does not match the SID programmed into your phone, then the phone knows it is roaming. The MTSO of the cell zone that you are roaming contacts the MTSO of your home system, which then checks its database to confirm that the SID of the phone you are using is valid. Your home system verifies your phone to the local MTSO, which then tracks your phone as you move through its cells. All of this happens within seconds.

B. Smartphones and Data Storage

A smartphone is both a mobile phone and a computer. While the traditional feature phones allowed us to communicate via voice and text, smartphones allow us to communicate via talk, text and video; access personal and work e-mail; access the Internet; make purchases; manage bank accounts; take pictures and do many other activities. Smartphones are constantly becoming more integrated into our daily lives. For many people, smartphones serve as a primary source of communication with the rest of the world. While smartphones provide us with a seemingly unlimited amount of resources, the fact is that many of us do not consider the massive amount of personal data that is stored, and therefore accessible, in our smartphones.

Since 2007, more than one billion smartphones have been sold around the world. Recent reports show that two thirds of new mobile buyers are now opting for smartphones over traditional feature cellular phones. As of June 2012, 54.9% of U.S. mobile subscribers owned smartphones. It is anticipated that there will be over 192 million smartphone users by the year 2016. The total estimated population for the United States in 2016 is almost 324 million.

Smartphones now have the capabilities for text messaging/SMS, emailing, instant messaging, social networking, streaming online music, videos/mobile TV, various applications, web browsing, mobile shopping, mobile banking, barcode or QR scanning, NFC/mobile wallet and location-based services/GPS. So what is your smartphone capable of revealing about you? It is safe to assume that anything you do on your smartphone and any information you store or access is at risk of being accessed by others. Even your service providers collect your data. Unfortunately, service providers are not forthcoming in detailing exactly what data they collect, why the collect it, and what data retention policies they have in place for storage and deletion of your personal data.

What other data should you be aware of on your smartphone? In addition to the data collected by your smartphone service provider, you should also be aware of possible privacy issues surrounding the collection or disclosures of several other files and data. Any photos, videos, text messages, emails, outgoing and incoming calls, contact information, passwords, financial data, information stored on your phones calendar, different locations you've visited, your age and your gender are all stored and accessible on your smartphone. This is valuable information for not only criminals and advertisers but also interested law enforcement and government officials.

The ability to collect data on where a person has gone and what they have been doing is valuable information for law enforcement officers. For example, if you are the subject of an investigation or even if you have just been pulled over, police may want to see what you've been doing and where you've been going – things your smartphone may be able to reveal. Thus, the data provided by your smartphone may be used against you in criminal proceedings.