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How to attack digital search warrants by Attorney Tim Zerillo

Tim Zerillo Teaches At Criminal Defense Seminar on Attacking Search Warrants

Attorney Tim Zerillo, former President of the "Maine Association of Criminal Defense Lawyers", had on his speaker hat today, teaching Maine criminal defense lawyers how to attack electronic evidence in digital search cases.  How to handle digital evidence is important to modern criminal defense work, especially with rapidly changing technology.

The Supreme Court of the United States has published a trinity of digital evidence cases in recent years, which provide a framework to attack many search warrants.

In Riley v. California, 134 S.Ct. 2473 (2014), the Supreme Court recognized that cell phones are unlike other types of physical objects.  Instead, they are minicomputers that contain the most intimate details of life. Due to their immense storage capacity, combined with the many distinct types of private data they contain, the Supreme Court held in Riley that the Fourth Amendment requires law enforcement to get a warrant to search a cell phone, even incident to arrest.

Another case in the trinity, Carpenter v. U.S., 138 S.Ct. 2206, 2220 (2018), required a warrant for historical cell phone location information over a seven-day period.  There, the Supreme Court found that seven days of a person’s cell-site records was a Fourth Amendment search because it violated a person’s “legitimate expectation of privacy in the record of his physical movements.” Carpenter notes the “depth, breath and comprehensive reach” of cell site location information over seven days or more.

Finally, in United States v. Jones, 615 F. 3d 544 (2012) the Supreme Court took up the issue of attaching a GPS to a car to track the movements of a drug trafficking suspect without a warrant.  Notably, the Court found that even the GPS device recorded the public movements of the car, it was still a search.  Some great language from the Court discusses these privacy implications, noting that the GPS records...“...trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, the synagogue or church, the gay bar and so on.” 

Best wishes for a happy holiday season and good luck with your cases. If you need a lawyer, please feel free to reach out to Tim Zerillo at tim@zerillolaw.com