By Matt Luka
Nearly everyone carries a cellphone these days, and most phones contain vast amounts of information about a person’s life. Not surprisingly, cellphones have become important sources of evidence in the investigation of criminal activity. Cellphones not only contain the information entered by the user but also emit or store data unknown to the user that has evidentiary value. As the technology of cellphones evolves, courts will face new issues of evidentiary reliability and constitutional protections.
Last fall, in Gosciminski v. State, 132 So. 3d 678 (Fla. 2013), the Florida Supreme Court considered the admissibility of evidence of a defendant’s location based on cell tower signals to prove that a defendant was in certain locations at certain times during the morning of a murder. The state’s expert testified about a diagram indicating the area in which the defendant was located based on signals between the phone and nearby cell towers. In concluding that any challenge to the testimony went to weight rather than admissibility of the evidence, the court noted that cellphone records and cell tower site information have been routinely admitted in Florida for years.
Although cell tower information has been admitted in Florida courts for some time, the Gosciminski court did not address how Florida’s recent adoption of the Daubert standard may impact the admissibility of such evidence in the future. In United States v. Evans, 892 F. Supp. 2d 949 (N.D. Ill. 2012), the court found a particular cell site methodology unreliable under Daubert. Conversely, United States v. Machado-Erazo, 950 F. Supp. 2d 49 (D.D.C. 2013), recognized that other cell site methodologies have “clear[ed] the hurdle imposed by Daubert.” Whether offering or challenging this evidence, these cases teach that we must pay close attention to the purpose for which the evidence is offered and whether the methodology employed supports that purpose. Michael Cherry, a Virginia-based consultant, and Edward Imwinkelried, a law professor at the University of California at Davis, are good resources for further research on this topic.
In addition to cell site evidence, information obtained from the search of a suspect’s cellphone is also an emerging topic. The U.S. Supreme Court heard oral argument in Riley v. California and United States v. Wurie in April. Both cases center on the authority of law enforcement, without a search warrant, to search a suspect’s cellphone at the time of arrest. Interestingly, Wurie involves an outdated flip phone. The Riley case involves a more current smartphone with the capability of storing more data. The evolution of technology may play a role in the Fourth Amendment analysis of these cases. Also, the court will only consider the relatively limited issue of whether the specific evidence obtained from the cellphones in those cases violated Fourth Amendment rights. The court’s ultimate decision may leave open the possibility for future litigation based on new technology or different types of evidence. At the time of the submission of this article for publication, the court had not decided Riley and Wurie. If the court issues the decisions in the meantime, look them up as I am sure they will be a good read.
