Articles Posted in Law and Technology

| By

The ability of law enforcement to access the cell phone content of a criminal defendant has received considerable attention in recent years.  The issue has been the same in case after case.  If the cell phone is seized as part of an investigation, the security settings, such as passcodes, shield the content from law enforcement.  The New Jersey Supreme Court recently considered whether a court order requiring a criminal defendant to disclose his cell phone pass codes violates his right to not incriminate himself pursuant to the Fifth Amendment of the United States Constitution, and/or New Jersey’s statutory or common law right against self-incrimination.

Quincy Lowery was the target of a State narcotics investigation.  During the investigation, he informed detectives that Robert Andrews, a former Essex County Sheriff’s Officer, had given him information concerning the investigation, and had told him how to avoid criminal exposure. Andrews and Lowery had known each other for about a year, and belonged to the same motorcycle club.  Lowery informed detectives that he regularly communicated with Andrews over FaceTime.  During one of these communications, Andrews told Lowery to get rid of his cell phones because members of law enforcement were doing wiretaps after the arrest of members of the Crips gang.  Lowery told Andrews that he thought he was being followed by the police, and texted Andrews the license plate number of one of the vehicles.  Andrews then informed him that the plate number belonged either to the Essex County Prosecutor’s Office or Sheriff’s Department.  He also instructed Lowery to put his car on a lift to see if it had a tracking device attached to it.  After seeing a picture from Lowery of someone who was following him, Andrews told Lowery that the person was with the Prosecutor’s Office.  Lowery’s allegations were corroborated by his cell phone records.

The State obtained warrants for cell phone numbers belonging to both Lowery and Andrews.  The warrants showed 114 calls and text messages between the two over a period of six weeks.  Andrews was indicted for official misconduct, hindering apprehension and obstruction of justice.

Continue reading ›

| By

We frequently handle cases where the discovery states that law enforcement has identified our client as being gang-affiliated.  Police agencies frequently collect information on individuals who they think are gang-involved and enter it into a database, which is then used to investigate criminal activity.  Recent experiences in California, however, demonstrate that these databases should not be trusted.

California has long maintained a database called CalGang.  The database, which is not open to civilians and is therefore largely secretive, contains the names and personal information of approximately 80,000 individuals.  Most of the people identified in CalGang are not white, and are suspected of being gang-affiliated.    CalGang has been a source of problems and complaints for years, and there have been calls to reform it or shut it down.

CalGang plainly illustrates the fact that a database is only as good as the information that is entered into it.  A 2016 audit revealed that it contained numerous inaccurate entries, including identifying information for one-year-old children.  People were also entered into the database based upon overly subjective criteria including, without limitation, the neighborhood where law enforcement encountered them or the color of their clothing.  According to the people who run CalGang, wearing a red hat, shirt or sneakers is enough to make you a gang member. Continue reading ›

| By

Two issues regarding the right to privacy, and its potential impact on criminal cases, appeared in the news recently.  These issues have no relationship to each other, but can both be highly relevant to criminal cases.

The first involves a your man who was living alone in a South American country.  He was extremely poor and his family was basically gone.  Having absolutely no personal resources for even necessities, he became involved with a local gang.  To be clear, he was not one of the leaders, or even a major participant in gang activities, acting instead as the occasional lookout.  Significantly, he really did not want any part of the gang lifestyle.  He eventually fled his home country and sought asylum in the United States.  He was afraid to return to his country after leaving, because of his well-founded belief that the gang he was previously involved with may kill him.

Part of the admission process here involved meeting with a mental health therapist whose position was government-related.  The therapist took notes of their meetings, which included discussions of his gang-related activities.  Without any prior knowledge or consent of the young man or the therapist, these notes came to light in connection with a hearing that was held to determine whether he could be admitted to the United States.  The notes supported the conclusion that he was gang-involved in his home country, which will probably end his quest for admission to the United States and force his deportation back to his home country. Continue reading ›

| By

We all have the experience every time we shop online.  Once we view or purchase an item on a particular website, ads for that site pop up everywhere we go online.  Online sellers are tracking our search habits so as to market and sell their merchandise.  We are, in fact, all being tracked online by companies like Amazon and Google that collect all kinds of information on users.  But retailers are not the only entities interested in collecting data from online sources.

“Predictive Policing” and “Precision Policing”, both of which include various data collection strategies, are being used increasingly by police departments around the country.  Generally speaking, the idea is to quantify, “data-fy” and control communities based upon the analysis of information collected online.  Sometimes, the information is purchased from data brokers.  However, law enforcement agencies are also developing their own internal collection systems.  For example, New York and Los Angeles continue to develop extensive gang databases.  In fact, Los Angeles has partnered with an entity called Palantir, whose technology has been utilized by the U.S. military and U.S. intelligence to track terrorists globally.  Much of the information is collected from social media including Facebook, Twitter, Youtube, Instagram, Tumblr, Pinterest, and the like.  The data is used to track individuals and groups who are deemed “high risk”.

Further, improved technology continues to give law enforcement the ability to collect, analyze and collate data from multiple sources.  For example, New York City has approximately 9,000 linked surveillance cameras in Manhattan.  This network affords the police the opportunity to view almost every street in the borough.  Currently, the system can go back as far as one month, and can track individuals wearing unique clothing such as a hat or shirt with a particular insignia, as well as track the time or place that a particular car is driven through an area.  The Chicago Police Department is using something called a “Heat List” which grades how dangerous someone is using a threat score of 1 to 500.  When someone is pulled over in what may start as a routine traffic stop, a threat score appears on the officer’s dashboard computer, ostensibly giving the officer some idea of how to approach the subject.

Continue reading ›

| By

A state trooper stopped a vehicle on I-295 in Burlington County.  The basis for the stop was a damaged tail light.  The vehicle, which also changed lanes without signaling, had three occupants – the driver, a front-seat passenger, and a six-year-old child in the back seat.  The trooper smelled burnt marijuana upon approaching the passenger side of the vehicle, and then asked the front passenger, the defendant Hagans, to step out of the vehicle.  He arrested, handcuffed, and Mirandized him, and called for backup.  He then asked the driver, Shonsheray Chandler, to step out of the vehicle.  He Mirandized her and asked her about the presence of Marijuana in the car.  She denied both knowing the defendant possessed marijuana, and that she had been smoking it in the car.  He handcuffed Chandler and placed her in the back seat of the police car.

The trooper asked Chandler to consent to a vehicle search.  Prior to reading her the consent form, he stated “it would be a lot easier if you would just make things easy.”  He read her the form, told her that she could refuse to consent, and that she could leave absent some other reason to hold her.  He also told her that she could be present during the search if she consented, and could withdraw consent at any time.  At first, Chandler refused to consent to the search.  The trooper responded by saying that he was going to apply for a search warrant which would just prolong the inevitable, and that he just wanted to make things easier.  Chandler then consented to the search.  In fact, the record indicated that she repeatedly consented to the search after her initial denial.  The trooper then re-read the consent form in its entirety and again asked Chandler if she consented to the search, and she responded in the affirmative.  The trooper also repeated for the mobile video recorder (“MVR”) that Chandler initially denied consent, but then changed her mind.  The vehicle search yielded a bag of marijuana and a handgun.

The defendant admitted that the marijuana and gun were his, and was charged accordingly.  During a suppression hearing, the trial court found that based upon the totality of the circumstances, the consent to search was valid and not coerced.  The Appellate division affirmed. Continue reading ›

| By

Our personal information is constantly being collected by third parties without our realization.  Every time we use one of our devices, we expose personal details and information to collection by any number of entities that use the data for various purposes.  Privacy is clearly on the decline as the use of one device or another becomes a standard and unavoidable part of life.  An individual cannot be part of modern society absent a cell phone and/or computer.  These facts all have serious implications for criminal defendants.

In 1979, the United States Supreme Court decided Smith v. Maryland.  There the Court discussed what has become known as the “Third Party Doctrine”, which provides that individuals do not have a reasonable expectation of privacy in information voluntarily given to a third party (e.g., telephone carrier or bank).  This information is then available to Government agencies, including law enforcement agencies.

The Court is now scheduled to hear a case that asks what the police and prosecutors can legitimately do with personal data that is collected from third parties.  Carpenter v. United States could greatly alter Fourth Amendment principles and procedures as they must be applied in cases involving data resulting from the use of cellphones, computers, and similar devices. Continue reading ›

| By

Law enforcement agencies that investigate child pornography cases face special technological challenges when tracking the distribution of contraband on the Internet, and then in building a case against a specific defendant.  A case in point is “Dreamboard”, an online bulletin board that advertised and distributed child pornography.  Dreamboard users employed encryption software, peer-to-peer networks and the so-called “Dark Web” to share images between and amount members/subscribers in 13 different countries.  In fact, all Dreamboard subscribers were required to use specific encryption software when viewing and/or sharing images.  Further, each file description had a specific link and password which allowed access to images through another website that stored encrypted files.  Dreamboard was the target of a 2009 sting operation that resulted in approximately 70 convictions.  The site was infiltrated through the efforts of several dozen law enforcement agencies including, without limitation, the Departments of Justice and Homeland Security, and 35 domestic ICE offices.

Dreamboard users obviously had to have both a level of technological skill, as well as the appropriate equipment and software, to be members.  The Dreamboard case was, however, not unique in this regard.  In a recent Louisiana case, a defendant set his computer to wipe the hard drive clean if a password was not entered within a few seconds of opening the device.  Another defendant asked an undercover agent posing as a minor to send him a picture during an online chat.  Law enforcement personnel are not allowed to distribute pornography, so the agent’s smartphone would not allow him to send a photo.  This ultimately led the defendant to believe that the agent was using a smartphone, at which point he ended the conversation.

If it all sounds complicated, that’s because it is.  The possession and distribution of online pornography is becoming increasingly sophisticated in terms of technology and scope.  These cases can include the use of password protection, encryption, file servers and/or peer-to-peer networks, software designed to eliminate evidence, remote storage, partitioned hard drives, and the like.  These cases are further complicated by the fact that pornography has gone global, and frequently involves the use of mobile devices, apps, and social media sites including What’s App, Kik Messenger, Instagram and Snapchat.  Finally, cases can involve terabytes of data.  (One terabyte equals about 1,000 gigabytes, and can hold approximately 3.6 million images or 300 hours of video.) Continue reading ›

| By

Arnett Blake, his girlfriend Cindy Edwards, and his former girlfriend Terri Hannah, all attended a party in Vineland, New Jersey.  At some point, Edwards encountered Hannah in the bathroom.  While there, Hannah allegedly made rude remarks about Edwards.  Hannah then left the bathroom and told Blake that she should “F___ [his] girlfriend up”.  Later, when Edwards and Blake tried to leave the party, Hannah approached Blake with a closed fist.  Blake pushed her away, and security detained him.  Edwards was then going to say something, but saw Hannah holding a high-heeled shoe.  Hannah hit Edwards in the face with the shoe.  Blake saw Hannah hit Edwards.  When Hannah was escorted out, Edwards saw she was not wearing shoes.  Hannah and Edwards later exchanged communications on Twitter which included a Tweet from Hannah saying, among other things, “shoe to ya face bitch.”

Hannah was charged with simple assault and proceeded to trial in municipal court.  There, she testified that she approached Blake at the party because she heard rumors that she planned to hurt Edwards, and she wanted to be sure that Blake understood that this was untrue.  She also testified that she was escorted from the party when she started yelling, that she did not see Edwards that night, and that she never hit anyone with a shoe.  This testimony was somewhat supported by that of a security guard who removed Hannah from the party and instructed her to not return, but also did not see her hit anyone with a shoe.

The municipal judge found Hannah guilty and, after a trial de novo, a Superior Court judge did the same.  Hannah then appealed her conviction to the Appellate Division. Continue reading ›

| By

Earlier this week, I was in the Chancery Division, Family Part for a hearing on one of my juvenile delinquency matters.  While waiting to be called, I listened to the colloquy in the cases being heard before mine.  Virtually every case included some discussion involving texting or social media.  In the matter that was heard just before mine, the juvenile’s attorney asked the court to release her client – a recently arrested middle school student – on electronic monitoring.  The application was denied because just prior to arrest, the juvenile posted a photograph of himself holding a handgun on social media.  The prosecutor’s office checked virtually all of the popular social media outlets just before the hearing to see if the juvenile came up in any context, discovered the photograph and, of course, brought it to the court’s attention.

One of the issues in my juvenile case concerned certain text messages discovered on my client’s cell phone.  When the police arrested my client, they coaxed him into executing a consent-to-search form for his cell phone.  Upon searching the phone, they discovered text messages that, according to the state, implicated my client in the underlying offense.

There is a disturbing pattern here.  In the first case, the prosecutor’s office simply knew to check all of the popular social media outlets prior to going to court.  It seems that this has become part of their standard procedure in preparing for juvenile proceedings.  In my case, the police guessed – correctly – that there was a very high likelihood that my client’s cell phone would contain damaging text messages.  Continue reading ›

| By

Prior articles on this blog have discussed our increasing dependency on our electronic devices.  Many members of my generation are still getting somewhat used to smart phones, I-pads, and the like.  However, for our children who have grown up with them, using these devices is perfectly natural and an ordinary part of life.  These things are all second-nature to them.  The younger generation will never understand our take on these devices because they did not grow up in a time when a Princess slim-line rotary telephone (remember those?) was cutting-edge technology.

While they seem to be thoroughly in tune with the latest technological rages and crazes, our kids do not necessarily appreciate the darker side of modern technology which, in addition to all kinds of devices, includes a bewildering array of apps and social media products and services.  Last week, an 18-year-old Ohio woman learned the hard way that misuse of this technology can have dire consequences.

Marina Alexeevna Lonina (age 18) and an acquaintance identified as Raymond Boyd Gates (age 29) have been charged in connection with the rape of one of Lonina’s classmates.  Lonina and the victim, who was 17 at the time of the incident, attended the same high school outside Columbus.  Lonina, Gates, and the victim were socializing at a Columbus residence when, at some point, Gates allegedly forced the victim to have sex with him.  Lonina “Periscoped” (live-streamed in real time) the rape.  One of Lonina’s friends, who was located in another State, viewed the live-stream of the rape and contacted law enforcement.  During the evening preceding the sexual assault, Lonina had also photographed the victim in the nude.  A Franklin County grand jury indicted Lonina and Gates for kidnapping, rape, sexual battery, and pandering sexually oriented material involving a minor.  Lonina was also charged with illegal use of a minor in nude material or performance, which related to photographing the victim the night preceding the rape.  These latter two charges appear to be variations of distributing child pornography.  Each defendant now faces over 40 years in prison. Continue reading ›

Justia Lawyer Rating
New Jersey Bar Association Badge
National Association of Criminal Defense Lawyers Badge
ACDL - NJ Badge
Contact Information
New Brunswick
5 Elm Row #300
New Brunswick, NJ 08901
Telephone: 732-979-2259 Ext: 101Fax: 732-579-8311Toll Free: 800-361-6554
Mailing Address
P.O. Box 154
New Brunswick, NJ 08903
Telephone: 732-979-2259 Ext: 101Fax: 732-579-8311Toll Free: 800-361-6554

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, James S. Friedman, LLC
JUSTIA Law Firm Blog Design