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Dallas County Opens Digital Crime Lab: DA Snoops Your Cell Phone

There was an important news update out of Craig Watkins’ office that may have been overshadowed yesterday, what with all the November 2014 Election coverage and the scoop that Watkins lost his job to Republican challenger Susan Hawk.

After all, there’s lots to ponder in Dallas criminal justice circles about what Hawk’s transition into the District Attorney’s spot will mean both for prosecutors and criminal defense lawyers here in the local Dallas area. Big changes, for sure.

The IPhone 5S sells for as little as $99 and offers fingerprint access instead of a password.


New Dallas DA Digital Lab Open for Business

Here’s the thing: the Dallas District Attorney’s Office will now be analyzing its digital evidence, and potential digital evidence, right here at the Frank Crowley Courts Building in the first District Attorney-run digital forensics lab to open for business here in North Texas.   Before, the Dallas prosecutors had to send their stuff over to the federal labs for analysis: the Federal Bureau of Investigation (FBI) or the Secret Service would help out with their lab geeks providing findings that would be used in criminal cases here.

Now, the Dallas criminal courts will see forensic analysis (think all the CSI shows on TV) handling things in-house. The District Attorney’s Office heralds this as a great thing, something that will help the criminal cases get to trial sooner. From the news release:

“Numerous times prosecutors had to reset cases for trial because the forensic examinations on the evidence had not been conducted, essentially costing the county and tax payers money,” said Dallas County District Attorney Craig Watkins. “The new digital forensics lab housed in the Dallas DA’s office will help expedite the process of getting cases to trial, getting the accused to take responsibility, or even exonerating the wrongfully convicted.”

What is Digital Forensic Evidence?

The National Institute for Justice defines digital evidence as, “… information stored or transmitted in binary form that may be relied on in court.”

The evidence that is going to be looked over at this new Dallas DA Crime Lab involves data that is retrieved from different sources of technology. Information that is pulled from cell phones, smartphones, GPS systems, computer hard drives, digital cameras, video recorders, and more.

The new Dallas lab will take the data from the device and then turn it into something that can be used at trial by the Dallas County District Attorney’s Office.

This includes text messages, location data, past phone call history, photos, videos, and more can all be pulled from a defendant’s device at the lab after the device itself has been seized by local law enforcement, like the Dallas Police Department.

Search and Seizure of Your Private Information: Careful Now!

In order for this DA Digital Crime Lab to work, the devices that they analyze must be provided after they have been seized from their owner. First, the police officer takes the phone when someone is arrested; then what? Now, that phone is scooted over to the prosecutor’s own Digital Lab for a looksie inside.

Legally, how the phone moves from owner to officer to lab tech is important.

Seizure of the device is the first step. The second step is seizure of the data itself.

These are two distinct constitutional steps in search and seizure law. It’s important to protect privacy here and not muddy the waters.

And the waters here are being muddied.

Virginia Judge Okays Using Fingerprints to Access Phone

Consider the recent case out of Virginia, where a federal judge has ruled that while the police are constitutionally forbidden to force an individual to turn over their phone password in order for the police to gather the data (texts, photos, call history, stored phone numbers, etc.) on that phone, there’s another way for the police to access it.

Seems that the Virginia judge has ruled it is fine and dandy for the police to access the phone of  someone who is suspected of committing a crime by unlocking the phone with its fingerprint scanner.   Password, smashword.  (Fingerprint scanners allow access to newer model phones made by Apple and Samsung.)

The Fifth Amendment mandates the inviolate constitutional right to avoid self-incrimination. So, Judge Steven Frucci ruled that passwords are constitutionally protected because to fork over the password would go against this right against incriminating yourself.

Judge Frucci, however, sees the fingerprint access as something different because “biometric information” is involved — and providing fingerprints to police isn’t protected by the Fifth Amendment.

If the cops can use those fingerprints to unlock your phone and read everything on there, then according to this Virginia court, there’s no Fifth Amendment violation.

Sure, there are steps being taken by phone manufacturers to boost the privacy factor in these new fingerprint-access phones. However, what has happened over in Virginia is a big red flag to what can happen anywhere in the country, including here in Dallas, when it’s a quick trip down a hallway to take a seized phone and then seize all its contents.

The Dangerous Waters of Digital Evidence

Today’s technology offers lots of convenience to all of us. Criminal defendants who have used their gizmos for maps to check locations, taken photos with their phone, or sent emails or text messages, need to be aware that more and more, that information is at risk of being taken from them and assumptions they may have about legal privacy protections may be flat out wrong.

The new local lab may be conveniently located, and trial calendars may move more smoothly as a result.   However, vigilance is needed more than ever to protect basic constitutional rights — like search and seizure, as well as the right against self-incrimination — as new technologies offer the government with more and more opportunities with more and more convenience, to invade your privacy.

Expect criminal defense lawyers across the country to be fighting hard in the future with motions to suppress as well as notices of appeal to battle against overzealous law enforcement and digital evidence grabs that violate the defendant’s constitutional protections.


UPDATE:  Read Grits for Breakfast discussion of this development on November 6, 2014, with comments made by Michael Lowe and others regarding various concerns over having the prosecutor having his (or her) own digital lab.  Lots of good points here.

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