Conviction by Mobile Phone

It’s only a matter of time before your phone destroys you. Some people keep their entire lives on their phones. When they lose a phone, if their data is not backed up on the cloud, they lose everything, from precious photos to important contact information. Some people have the opposite problem: they wish they could lose the data on their phone, but they can’t. In many instances, data does not go away, even if the user believes he or she has deleted information from a phone.

In the past five years, sexual assault cases, drug cases, and white collar cases handled by Berry Law have been affected by data found on phones. Often, phones are used as evidence in other types of cases as well. Phone data is used in divorce cases and other civil proceedings. People today are less private about their lives and post embarrassing and sometimes incriminating information on social media. Even information not shared on social media but sent through text message, chat, or other private means can still be recovered and used against someone in a criminal or civil court case.

While some people are brazen enough to post comments admitting crimes online or send text messages detailing criminal activities to their friends, in many instances, less obviously incriminating data on phones can be just as damning.

For example, cell phone towers can track the location of anyone currently operating a cell phone at any given time. Berry Law has represented individuals in large interstate drug cases in which federal prosecutors worked with law enforcement to track interstate drug shipments across the US using cell phone towers. Berry Law has also represented individuals charged with robbery and placed at the scene of the crime because their phone signal bounced off a cell phone tower. But cell phone forensic evidence is not always as reliable as it may appear. There are reasons why phone signals bounce off of some cell phone towers and not others, but that’s a topic for an entirely different post.

In addition to phone tower data, law enforcement have access to GPS data, which can be incredibly accurate. If law enforcement gets consent or a warrant to search a phone, they can pull GPS data which can tell exactly where a person was at any given time.

Aside from the movement tracking and recording, text messages and responses can be problematic in a criminal case. Sometimes it’s not just the content of the message, but rather when the message was sent or how often the person was texting. Sometimes non-stop texting or long delays in messaging suggest to law enforcement the suspect was doing something illegal at a specific time.

For example, if a suspect in a criminal case rarely sends text messages to his brother and immediately exchanges hours worth of messages with his brother after a crime is committed, police may want to know what made the brothers text back and forth for so long when they normally send few messages to each other.

Prosecutors may argue the increased cell phone activity occurred because the suspect confessed his crime and sought the assistance of his brother. If the messages are recovered, they will likely be the reason a jury convicts or acquits the suspect.

Consider the opposite. A woman who incessantly text messages her boyfriend suddenly stops texting him an hour prior to his death and then never tries to text message him again. How did she know to stop texting him? Did she know he was dead? How would she know? In this instance the lack of text messaging may make the woman a suspect in a murder case.

It’s not just the content of the text messages that can be problematic but the habit or lack thereof that can raise suspicion. At trial, prosecutors often argue that these sudden changes in habit are circumstantial evidence that a criminal defendant committed a crime. This may sound like a stretch but combined with other circumstantial evidence such as cell tower data placing the person near the crime scene and text message content depicting an argument and a motive, it certainly raises suspicions.

Finally, there are photos. People mindlessly take pictures of incriminating occurrences or events that they believe are funny, which later may be used against them in court. Digital photographs often have date and time stamps which can show exactly when a photo was taken. And photos that go to cloud-based storage usually contain the GPS data of where the photo was taken. While the photo itself may be incriminating, the date/time stamp and location data can tell someone exactly when and where it was taken.

There’s no question we depend on our phones for many of our daily activities. But keep in mind that just as your life may become very difficult if you lose your phone, if someone else gains access to the data on your phone, it could complicate your life in a much different way.

Phone hackers can learn about your entire life from your phone. Your internet searches say quite a lot about your personal preferences, political leanings, medical issues, and purchasing habits. And it only gets deeper from there when someone gets into your apps where they can learn about your bank information, dating preferences, and amounts of daily exercise.

As Americans, we value our privacy as one of our constitutional rights. We don’t want strangers from the government looking through our phones. It’s not just people engaged in criminal activities that fear losing their phone security: Everyone concerned with protecting their privacy fears having their phone stolen or hacked or confiscated by police. Ironically, even though we value our 4th Amendment right that protects our privacy we are less than private about every detail of our lives that we post on social media.

If you find yourself in legal trouble because of information found on your cell phone, please call us at (402) 466-8444 or contact us online.

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