CP Ch. 20 Electronic Evidence Flashcards
(153 cards)
1
Q
Police may not intercept cell phone communications without:
A
a warrant.
2
Q
Do police have a right to searched an ABANDONED cell phone?
A
Police may immediately search an abandoned cell phone.
Ex. defendant placed cell phone on an outdoor window sill and told detectives he did not want it anymore- valid to search
3
Q
Police may immediately search a lost or misplaced cell phone to the extent:
A
the extent necessary to determine its owner. Beyond that, consent or warrant.
Ex. officer at scene of drug store break in found a cell phone in a snow bank; the officer properly searched it to locate the phone owner’s photo which, he realized, matched the man he had seen earlier.
4
Q
May police search a cell phone incident to arrest?
A
No. Police may not search a cell phone incident to arrest. They need separate consent or a warrant because citizens have a significant expectation of privacy.
5
Q
Police may not search a cell phone incident to arrest. They need separate consent or a warrant because citizens have a significant expectation of privacy. The author recommends: (5)
A
- Check for weapon- make sure phone is not disguised weapon
- View phone exterior (not a search) for texts and other information. Do not open or manipulate phone
- Answer or search if exigent circumstances (bomb threat, child abduction, etc)
- Secure if probable cause.
- Obtain consent or warrant
6
Q
Is it a “search” to text a suspects phone?
A
No.
7
Q
Officer may answer an offenders phone during a drug distribution or sexual enticement investigation to:
A
avoid losing evidence.
Investigator must testify why getting a warrant was impractical before answering suspects cell phione.
8
Q
Absent exigent circumstances, police may seize a phone only if they have:
A
probable cause that it contains evidence.
At this point, officer may take steps to prevent the loss of evidence- such as turning off the device.
9
Q
Is seizure justified if the cell phones, by themselves, can help prove an accomplice connection?
A
Yes.
10
Q
Is seizure of a cell phone justified if it was likely used during the crime?
A
Yes.
11
Q
Is an investigators opinion that criminals often use cell phones to communicate enough for probable case?
A
No.
Need additional facts to provide probable cause.
12
Q
Once a cell phone is secure, officers should inform the defendant of his two options: (2)
A
Consent, or search warrant.
phrase in a way that lets them know phone will be seized for a longer period of time if warrant
13
Q
If an officer tells a defendant that, if he doesn’t consent to a search, the officer will seek a warrant, eliminate the possibility of voluntary consent?
A
No.
voluntary consent may follow an officers statement that, if the suspect refuses, he will seek a warrant.
14
Q
In order to ask for consent on the basis police will otherwise apply for a warrant , police must have:
A
Probable cause for a warrant to begin with.
15
Q
Is signing a consent form necessary for the consent to be valid, even if given during a recorded interview.
A
No.
Ex. If a suspect consents clearly during a recorded interview, there is no need to have him or her sign a form. The recording is positive proof.
16
Q
Cell phones:
Consent to search ends when:
A
the officer returns the phone.
17
Q
Are general descriptions of possible evidence probable cause to search a cell phone?
A
No.
Affidavit including statements such as “the cell phone may contain..” or “may reveal information” are speculative and do not provide probable cause. Need specific information linking the cell phone to the crime.
18
Q
Can police use internet research to gain information that supports a search warrant?
A
Yes.
Ex. detective researching “pen cameras” on amazon.com in Sexual surveillance case
19
Q
True of false:
Police need separate warrants in order to seize AND search a cell phone.
A
False.
Only one warrant is necessary to seize AND search a cell phone.
20
Q
Search warrants for cell phones:
The affidavit should state a date range for the relevant dates. An affidavit must mention:
A
a beginning and end date for potential evidence.
- The affidavit should also specify the type of files that will contain evidence relating to the crime under investigation.
21
Q
Search warrants for cell phones:
Must the affidavit specify the types of files to be search (photographs, text messages, contact information, etc)?
A
Yes.
22
Q
Search warrant for cell phone:
The best practice is to incorporate a (blank) into the warrant application or, atleast, document the one used during the warrant’s execution.
A
Minimization protocol.
Note: Describing how investigators plan to limit their electronic search is important to courts.
23
Q
This describes the manner in which technicians limit their inspection to potentially relevant information. It often includes the software and “search terms”.
A
Minimization protocol.
24
Q
A warrant for a phone with an assigned number permits police to:
A
conduct a quick search to confirm its number. (check call log, call the phone and see if it rings, etc.)
25
Electronic evidence, including cell phones, may be examined beyond:
beyond 7 days.
Officer simply need to list the seized phones on their warrant return. The forensic experts then have a reasonable period of time, beyond 7 days, to complete their examination.
26
Under Article 12, what is the standard of evidence to prove that a defendant can access the device in order to otain a court order directing him to decrypt computer files, enter his passcode, or apply his finger to a scanner.
Proof beyond a reasonable doubt.
essentially, to get a court order the make defendant unlock his phone, police must prove beyond a reasonable doubt that it is the defendant's phone that he uses regularly. Multiple other people using the phone is irrelevant under Jones case.
("Access" here means to unlock/get into the phone)
27
If the suspects attorney has the cell phone, police need to:
Get a warrant.
Not a subpoena. Get a warrant to search a lawyers office for evidence because there is a risk that they will observe materials protected by attorney client privilege. Always consult with a prosecutor before doing this.
28
A search of digital camera images requires:
a warrant.
While there is some concern that cell phones will be remotely wiped or data- encrypted, there is less risk with digital cameras.
29
Digital camera images likely document the nature of a relationship, which provides (blank) for a warrant following a domestic violence murder.
probable cause.
30
Administrative subpeona for phone or computer records:
The Attorney General, a district attorney, or one of their assistants may obtain records from a telephone or computer service company based on reasonable suspicion that the records:
"are relevants and material to an on going investigation"
The demand must come from a prosecutor, not a police officer.
31
Administrative subpeona for phone or computer records:
The Attorney General, a district attorney, or one of their assistants may obtain records from a telephone or computer service company based on reasonable suspicion that the records "are relevants and material to an on going investigation". The company must deliver records within:
14 days.
(unless the time period is reduced or increased by court order)
32
Administrative subpeona for phone or computer records:
The Attorney General, a district attorney, or one of their assistants may obtain records from a telephone or computer service company based on reasonable suspicion that the records "are relevants and material to an on going investigation". The demand must come from a prosecutor, not a police officer. The company must deliver records within 14 days. The records (ex. subscriber's name and address, and a log of calls) require no judicial authorization because :
customers have a limited expectation of privacy in the phone and computer records they know a commercial carrier keeps.
** However, no content based information (emails, texts, websites accessed) may be disclosed under an administrative subpoena.
33
Phone and computer records:
An administrative subpoena is only required if there is a (blank) for records
Demand.
No subpoena necessary if voluntarily disclosed based on exigent circumstances.
34
Phone and computer records:
Out-of-state records by warrant. 276 Sec 1B provides that a Massachusetts court may issue a search warrant to an out of state corporation for records of electronic communications and computer services. The corporation must respond within (blank) unless the court orders otherwise; and the corporation must provide an :
affidavit of authenticity for the records.
Note: this law also requires that Massachusetts corporations respond to out of state subpoenas in the same manner.
* this same rule applies to grand jury, trial, and administrative subpoenas- 14 days!
35
Police may typically search a computer associated with an:
IP address.
Ex. Comm V Molina- search warrant for an entire apartment was proper because anyone in the apartment could have been using the IP address for child porn. Since the files could easily been transferred between devices at the same location, all devices present could be searched.
36
Do police have to determine who was using an IP address in order to have probable cause for a search warrant ?
No.
The fact that somebody other than the subscriber could be using the same IP address does not defeat probable cause. The issue is whether the physical address contained evidence.
37
Electronic evidence may be examined:
Beyond 7 days.
Forensic experts have a reasonable amount of time beyond 7 days to complete their examination.
38
Police selection of targets cannot be motivated by:
Bias.
39
Under Article 14, a defendant's posts on social media require:
Privacy analysis.
SJC declined to adopt a bright line rule in the case provided in the book. Instead, the court said the facts concerning:(1) a users efforts to maintain privacy and (2) any attempts by law enforcement at deception are relevant in evaluating whether police surveillance (of social media) was a search necessitating probable cause or a warrant.
40
(Blank) is necessary to prove the defendant wrote an email, instant message, text, facebook post, or other electronic communication.
Confirmation.
Evidence that a defendant's name appears as the author, or that the communication originated from his account, is insufficient proof he was the author. There must be additional "confirming circumstances"
Many factors, but included are personal references, writing style, etc.
41
Confirmation is necessary to prove the defendant wrote an email, instant message, text, facebook post, or other electronic communication. If relevant (blank) must be proven.
timing of communication
Ex. before or after 209A was served
42
While police do not need a warrant to view evidence already observed by a private party, they do need a warrant to:
to expand their search of the device.
Ex. officer could properly examine materials initially discovered by a private party who was not acting as his agent (computer tech found child porn on customers computer). Officer properly got a warrant to search defendants house for the backed up hard drive/ thumb drive.
43
Defendant's friend conducted a private search and showed police what he found on is friends computer. The friend then opened more computer files for the investigating officer. Proper or improper?
Police could not expand the scope of the friend's initial search. Warrant and resulting evidence had to be suppressed.
44
True or false:
A defendant cannot complain when police get his email, text, or other information by lawfully accessing another person's account.
True.
No expectation of privacy in the account of another.
If a letter, email, or text is sent to another, the sender's expectation of privacy ends on delivery.
45
True or false:
Police may routinely activate their Body Worn Cameras and review footage prior to writing their reports and testifying in court
TRUE.
Ex. was valid for officer to review footage to confirm the background (bedroom) captured on a call was the same as in a social media post with defendant holding a firearm two weeks later.
**Contradictory to the two reasons an officer may review footage in the book
46
According to the SJC, there are three reasons to record police encounter with citizens. What are they?
1. Protect police officers from false allegations of misconduct.
2. Ensure police accountability.
3. Preserve a record or police-citizen interaction.
47
Is body worn camera recording during a domestic response considered a search?
No.
BWC, in areas where officer is lawfully present, is not a search. Recording shows only what officer could see in plain view, while lawfully present.
48
A Body Worn Camera may be routinely reviewed without a warrant by: (2)
1. An officer writing a report and/or preparing for court; and/or
2. A supervisor assessing a citizen's complaint or an officer's performance.
49
Is a search warrant required to review body cam video from an unrelated investigation?
Yes.
Whatever the initial justification, a citizen expects that a video created during a lawful police visit will not be reviewed for reasons unrelated to that visit without proper legal authorization.
50
True or false:
The wiretap statute does not prohibit police use of a Body Worn Camera to record a victim's statement.
True.
The wiretap statute makes it clear that it's goal is to prohibit secret eavesdropping on private conversations, not police recording of victims- especially when a victim knows the officer is taking notes during the conversation (as was the case in the book example).
51
May witnesses testify to observations made while viewing a video monitor?
Yes.
If video is not recording or if the video is lost, witnesses (including officers) may testify based on what they saw at the time of viewing. If officer, must describe how they knew it pertained to the defendant's criminal case.
52
What may authenticate an officer's cell phone recording of a surveillance video?
The officer's testimony.
53
May police present evidence about the quality of video surveillance?
Yes.
Ex. video made a dark colored sweatshirt look light. Sgt had an officer walk in front of camera, and showed the images from this in court as a demonstration.
* the trial judge has discretion to admit evidence of this kind, or not.
54
Police may install a pole camera to: (2)
1. obtain evidence of a crime
2. aid in the apprehension of a criminal
ex. police had proof defendant possessed child porn, but they needed a pole camera to learn what apartment he lived in.
Note: Article 14 requires warrant for a pole camera that closely monitors a dwelling.
55
Article 14 requires a warrant for a pole camera that:
closely monitors a dwelling.
56
Whether police need a warrant for targeted video surveillance depends on: (5)
1. Duration (ex. 13 days for pole camera was search requiring warrant)
2. Whether it is continuous or intermittent
3. Whether it may be monitored live by a user
4. Whether it can gather information in quantities that would be difficult for a human to compile and analyze
5. The level of visual detail
57
Officers must request a facial recognition search (blank)
In writing.
Should contact State Police Fraud Investigation Unit.
58
Facial recognition: Officers need a court order supported by (blank) that a facial recognition search is relevant- and important to an ongoing criminal investigation, or to mitigate a substantial risk of harm to any individual or group of people.
Reasonable suspicion.
Officers need a court order supported by reasonable suspicion that a facial recognition search is relevant.
59
Officers need a court order supported by reasonable suspicion that a facial recognition search is relevant and important to an (blank), or to mitigate a (blank)
important to an ongoing criminal investigation, or to mitigate a substantial risk of harm to any individual or group of people.
60
Who does NOT need a court order or a written request when "performing investigatory functions related to the issuance of identification documents by the registry of motor vehicle" ?
The State Police.
61
Do officers need a court order to use facial recognition to identify a deceased person?
No.
Also do not need a court order to use facial recognition to prevent substantial risk of harm to any individual or groups, PROVIDED the written request to the agency performing the search presents reasonable suspicion of an emergency.
62
Is a facial recognition match considered to be a positive identification?
No.
Investigators must rely on other corroborating evidence to build probable cause.
63
is a facial recognition match sufficient standalone evidence of someone's connection to a crime?
Never.
need corroborating evidence to build probable cause.
64
Law enforcement agencies must document EACH facial recognition search, and provide information how often to EOPSS?
Quarterly.
This information is not public record.
65
Law enforcement agencies must document EACH facial recognition search, and provide information quarterly to:
Executive Office of Public Safety and Security (EOPSS).
This information is not public record.
66
What does EOPSS stand for?
Executive
Office of
Public
Safety and
Security
67
Does a limited use of Automated License Plate Readers (ALPRs) a search requiring a warrant?
No.
A person's specific location in public is not private.
However in McCarthy case, SJC noted " With enough cameras in enough locations, the historic location data from an ALPR system in Massachusetts would invade a reasonable expectation of privacy and would constitute a search for constitutional purposes."
Not the case here, as it was only 4 ALPR's at 2 fixed points. Also, the cameras did not allow the police to monitor all the defendants public movements.
68
The State Police operate Automated License Plate Readers on the Bourne and Sagamore Bridges leading to Cape Cod. These cameras photograph every single vehicle registration that crosses the bridges in either direction, and record the date, time, and direction of travel for each vehicle. The records are preserved for (blank), and are available for law enforcement use.
1 year.
69
True of false:
In its only decision on the subject, the SJC did not require a warrant for a limited search of CharlieCard data.
How about the corresponding video surveillance?
True.
ex. CharlieCard was capable of recording 14 months of data; this would have been a search requiring a warrant. Instead, MBTA provided two days of data; this was not a search because no reasonable expectation of privacy in such limited records.
The surveillance camera video was also not a search, as the cameras are plainly visible at each location where the CharlieCard was used. * MBTA also posts on website its policy of cooperating with police request for information about card use.
70
Contrary to the CharlieCard example case in the book, the SJC's ruling here did not address a relevant transit statue stating that "fare collection data, if available may be provided to a representative of the transit police, only in situations involving (1) a probable cause warrant signed by a judge; or (2) exigent circumstances that would render it impracticable to obtaina. warrant." The author suggests in the future:
In an abundance of caution, investigators should obtain a warrant from a judge for transit records and video unless they have documented exigent circumstances.
71
To acquire Cell Site Location Information (CSLI) officer must:
obtain a search warrant.
- most people are not aware that their location is recorded.
72
The author states that: Obtaining historical Cell Site Location Information to prove a suspect's location through his phone is an:
Incredibly useful investigative technique.
-CSLI used to confirm locations of NH suspect wanted for arson in Lexington. Suspect had motive, as victim sexually assaulted his sister. Warrant affidavit established PC.
*Requires a search warrant
73
Is a search warrant required if a company is willing to provide police with Cell Site Location Information voluntarily?
Yes.
A police request for CSLI will always require a search warrant or exigent circumstances.
74
The scope of the Cell Site Location Information data request depends on (blank), but it should typically be for no longer than 2 weeks.
the crime being investigated
75
The scope of the Cell Site Location Information data request depends on the crime being investigated, but it should typically be for no longer than (blank)
two weeks.
76
What is required for police to use a cell phone tracker?
A warrant.
Ex. StingRay cell cite simulator tricks cell phones into sending their location information- police need a warrant before turning the stingray on
77
Officers use the term "pinging" to describe the ability of a cell phone service provider to determine the location of a phone in real time. This authorized without a warrant if:
police confront an emergency.
1. Emergency Aid- this rule covers who are at risk for serious injury or death (missing college student, suicidal neighbor, etc)
2. Exigent Circumstances- covers locating a dangerous criminal (who still poses a threat)
78
Cell phone ping:
Once the emergency is over, police should still obtain a warrant to:
take formal custody of records related to the ping.
* This is best practice if the ping led to an arrest and/or seizure of evidence.
79
True or false:
Defendant may not typically challenge CSLI or the ping of another's phone.
True
Ex. no reasonable expectation of privacy when another persons cell phone was tracked for a brief time- 2 hours- and the defendant was not the intended target of the decision to track.
80
Cell Site Location Information is admissible as a business record with:
expert testimony.
Ex. trooper from electronic evidence unit explained how they were collected and what they meant
81
True or false
Cell phone applications can (such as Find My iPhone) can be used to locate a stolen cell phone without a warrant or expert testimony.
True.
82
Officers must obtain (blank) from (blank) before aquiring "tower dumps" of CSLI.
must obtain a warrant from a judge
83
Tower dumps provide investigators with CSLI for all phones that are connected to specific cell towers near the location of a crime at a particular time. Once a cell phone connects with a cell tower, the tower generates a time- stamped record known as a CSLI. There are two varieties:
1. Telephone call CSLI- Occurs when a person uses their phone to place or receive a call OR text.
2. Registration CSLI- Occurs without any action by the user. The reason is that cell phones regularly connect to the nearest cell site by a process known as "registration"
84
Investigators may obtain historical CSLI, which provides a log of every cell site a particular phone connected to within a given time frame. This enable investigators to:
reconstruct a suspect's movement over time.
85
Investigators may obtain historical CSLI, which provides a log of every cell site a particular phone connected to within a given time frame. This enable investigators to reconstruct a suspect's movement over time.
A tower dump provides investigators with CSLI from every connecting device. This is especially useful for:
investigating serial crimes.
By cross referencing info, investigators can focus on the same phone number appearing at the locations and times of multiple events.
Ex. investigators had to solve 7 gun point robberies and had no suspects. Tower dump was the perfect strategy.
86
Because tower dumps produce a massive amount of data, officers must seek a search warrant from a judge. The search warrant affidavit for a tower dump must: (4)
1. Establish PC that CSLI will aid in the apprehension of a criminal or provide evidence of a crime
2. Provide a factual basis that the suspect used their cell phone during the relevant time period.
3. State that the phone numbers revealed by CSLI will only be examined if, as a result of cross referencing, they are linked to more than one location and time where offense occurred.
4. Present a protocol to dispose of innocent third- party information given to police as part of the tower dump.
87
What does a GPS tracking system do?
It monitors and records the location of a vehicle without the owners knowledge.
Police must obtain a warrant to install and monitor a GPS tracking device.
88
Police must (blank) in order to install and monitor a GPS tracking device.
obtain a warrant.
89
The reasons why a warrant in necessary for police to install and monitor a GPS tracking device, are: (2)
1. using a citizens vehicle to conduct GPS monitoring interferes with his property
2. the absence of a warrant requirement would allow law enforcement to track any individual indefinitely and without suspicion by simply attaching a transmitter to his vehicle.
90
The affidavit for a GPS warrant must establish:
Probable cause.
91
The GPS warrant may authorize monitoring for no more than :
15 days --from the DATE THE WARRANT ISSUES
* Police may renew GPS warrants in additional 15 day increments.
92
Police may renew GPS warrants in additional (blank) increments.
15 day.
93
Does a vehicle passenger have standing to challenge GPS monitoring?
YES. Passenger does, in addition to the owner and operator.
For this reason, police should obtain a warrant even when they install and GPS in their informant's car
94
Police may obtain (blank) GPS data from probation without a warrant.
post- conviction.
Irrelevant if police access this data after a persons probation ends.
Author notes that police probably can obtain pre-trial GPS data without a warrant as well. Has not been established either way yet.
95
What is the proper charge if a private person electronically monitor's the movements of another private person.
At present, it is NOT a crime in Massachusetts for a private person to electronically monitor the movements of another private person.
96
As new technology increases the information police and assemble, the SJC limits how much publicly available information police can obtain without a warrant. This describes what?
The "Mosaic Analysis"
The author suggests: When accessing public information(ALPR, Pole Cams, etc.) without a warrant, take take the smallest bite possible to develop probable cause, then get a search warrant for more.
97
The "Mosaic Analysis"
The author suggests:
When accessing public information(ALPR, Pole Cams, etc.) without a warrant, take take the smallest bite possible to develop probable cause, then get a search warrant for more.
* setting a date range for the requested information is important.
98
Technology facilitates secret recording, which places:
privacy at risk.
99
True or false:
There are civil and criminal prohibitions against unauthorized recording.
True,
100
The wiretap law only cover interception of:
oral communication.
101
Nonconsensual interceptions occur when none of the parties to the conversation know they are being recorded. Private parties are NEVER authorized to do this. Lae enforcement officers may only do this:
with a wiretap warrant.
102
One-party consensual interceptions occur when:
at least one party know the conversation is recorded and consents to the facts.
Most secret recordings fall into this category.
103
True or false:
Private citizens may secretly record other people.
FALSE.
ex. disgrunteld client was properly convicted of secretly recording his attorneys; this was illegal regardless of the attorney-client privilege.
104
The constitution does NOT permit a ban on secret information- gathering directed at
police officers.
Officers can no longer bring criminal charges under 272 Sec 99 against citizens, including members of the media, who secretly record them in the public performance of their duties.
105
Citizens may openly record officers in public, so long as they do not:
interfere with police operations.
* The First Amendment gives citizens the right to document police activities.
106
What gives citizens the right to document police activities?
The Firth Amendment.
107
The first amendment gives citizens the right to document police activities. But, there are limits (3)
1. Interference- "Sir you are too close, go over to the sidewalk." Since recording is legal, focus on the improper behavior- not hte act of recording itself.
2. Need for privacy- officers should move to private location to preserve the conversational privacy of victims and witnesses
3. Evidence. BE CAREFUL- the decision to seize a citizens device as evidence should be made in good faith
108
(Blank) is a proper response to filming police in suspicious circumstances.
Investigative detention.
Ex. officer properly detained individual filming a police station in a suspicious manner. However, handcuffing and placing him in a cruiser constituted an unlawful arrest.
109
Other exceptions to ban on secret recording (not yet covered in other flashcards) : (6)
1. Accidents- illegal interception must be on prupose.
2. Telephone equipment- "in the ordinary course of business"
3. Phone company investigation- may intercept calls to prevent violations- they do not need judicial authorization
4. Office intercom (ex. audio-video system that monitored cells in police station)
5. Booking video- Booking is an administrative procedure. Doesn't matter if suspect knows he is being recorded.
6. Eavesdropping
- On a phone extension with no recording- even aceeptable for police to use as a tactic!
- In person with silent video
110
For nonconsenual interception of conversation, investigators must obtain a
wiretap warrant
* Only specially designated prosecutors may apply AFTER receiving written authorization from a District Attorney or Attorney General.
111
Warrant application for a wiretap warrant must be presented to:
A Superior Court Judge.
- in the county where the interception will take place, or where the applicant is located
112
To be granted a wiretap warrant, the investigation must involved a "designated offense": The various offenses in 272 sec 99 include (7)
1. violence
2. gaming
3. prostitution
4. judicial intergrity
5. narcotics
6. extortion
7. bribery
(related to organized crime)
113
The affidavit for a wiretap warrant must present reasonable suspicion that the underlying offense involved:
Organized Crime.
114
The affidavit for a wiretap warrant must present (blank) that the underlying crime involved organized crime.
reasonable suspicion
115
May officer prevent recording activity that interferes with the police operation?
Yes.
Do not order citizens to turn off their camera, instead focus on the improper behavior.
116
Exceptions to ban on secret recording:
Eavesdropping: (2)
1. On a phone extension with no recording (ex. victims sister secretly picked up the extension phone; after victim hung up, defendant heard him admit to her rape)
2. In person with a silent video- wiretap applies to audio recording
117
A " continuing conspiracy among...disciplined groups... to engage in supplying illegal goods and services"
Organized crime.
At the same time, organized crime encompasses more than full time professional criminals.
118
Since a wiretap is an extraordinary investigative method, the burden is on law enforcement to demonstrate:
why less intrusive methods are inadequate.
ex. physical surveillance, GPS tracking, trash analysis, cell phone toll records, etc all failed to produce evidence against top level individuals controlling sex trafficking operation; to dismantle the operation, investigators needed wiretap evidence against its principals.
119
Are police required to recruit an informant , in an effort to avoid the need for a wiretap, before applying for a wiretap warrant?
NO.
120
The affidavit for a wiretap must identify the (blank) and (blank) to be monitored.
the particular individuals and phone lines to be monitored.
121
True or false:
A wiretap warrant may permit the interception of cell phone calls and text messages.
True.
122
Wiretap warrant: Prosecutors may apply for broader coverage if they learn about:
new kinds of criminal activity.
Ex. during "loan sharking" investigation, intercepted conversations discussed drug dealing as well; prosecutor petitioned the court to expand the investigation.
123
True or false:
Wiretap
A warrant may authorize secret entry to install the listening device.
True.
124
A wiretap warrant must be executed within:
30 days of equipment installation.
125
A wiretap warrant must be issued within 30 days of installation. The actual listening time is limited to :
15 consecutive days within a 30 day period.
126
A wiretap warrant must be issued within 30 days of installation. The actual listening time is limited to15 consecutive days within a 30 day period. The court may grant (blank) extension upon application.
15 day extensions.
127
Wiretap
Surveillance tapes must be returned within (blank) after the warrant ends.
within 7 days after the warrant ends.
128
Wiretap
Surveillance tapes must be returned within 7 days after the warrant ends. Who does the return go to?
The judge who issued the warrant
Note: The prosecutor may present the recordings to a grand jury, even before judicial review.
129
Wiretap warrant service
An attested copy of the warrant must be served on the targets and phone line subscribers. How quickly depends on:
what is written in the original affidavit.
130
Wiretap warrant service
An attested copy of the warrant must be served on the targets and phone line subscribers. How quickly depends on what is written in the original affidavit. If the affiant alleges "exigent circumstances" the warrant must be served within:
within 30 days after it expires.
131
Wiretap warrant service
An attested copy of the warrant must be served on the targets and phone line subscribers. How quickly depends on what is written in the original affidavit. If the affiant alleges "exigent circumstances" the warrant must be served within 30 days AFTER it expires. If the affiant alleges "important special facts concerning the need for secrecy", service must occur within:
3 YEARS of expiration.
132
Wiretap warrants
272 sec 99 mandates that the defendant receive records of the interceptions atleast (blank) before trial. If police fail to turn over records, any recording is suppressed.
30 days before trial.
*This rule is strictly enforced, and will result in suppression of the recordings.
133
What does a pen register do?
notes numbers dialed from a particular phone.
134
What does a cross frame trap do?
notes incoming calls.
135
Even though pen registers and cross frame traps are not as intrusive as a wiretap, Massachusetts still requires:
A wiretap warrant.
Note: police never need separate authorization if they already have a wiretap in place.
Also, a judge may order that the phone company help install these devices.
136
If police already have a wiretap in place, do they need separate authorization for pen registers and/or cross frame traps?
No.
137
May a judge order a phone company to help install pen registers and/or cross frame traps?
Yes.
138
The FEDERAL wiretap law only applies to the interception of voices. Therefore, pen registers and cross traps may be installed without a warrant (federally) The devices may be authorized by court order for a maximum of:
60 days. With the possibility of a 60 day extention.
***NOTE: MASSACHUSETTS requires a wiretap warrant for pen registers and cross frame traps. This federal law was in the notes on Ch. 20 p. 29, and is included here only for test purposes.
139
One party interception by law enforcement:
272 Sec 99 authorizes the **Warrantless** interception of oral communication : (4)
1. Under the supervision of a law enforcement officer;
2. Investigating a designated offense;
3. When atleast one participant in the conversation consents to its interception; and
4. The officer has a reasonable suspicion that the offense involved organized crime.
140
Article 14 prohibits secretly recording conversations inside a suspect's dwelling:
without a warrant.
Known as a BLOOD Warrant
141
When law enforcement officers want to record in a suspect's home, they must obtain a SEARCH warrant, nicknamed a:
Blood warrant.
142
Does FEDERAL law still permit consensual, one party recording without a warrant, even in homes?
Yes.
But Massachusetts does not. Need a Blood warrant (which is search warrant for the collection of oral communication, as opposed to the seizure of tangible evidence.)
143
Comm Vs Blood (1987)- involved a police informant who wore a a wire to record conspirators planning a gold theft. Many conversations took place in the perpetrators homes. At the time, Massachusetts and federal law authorized one party consent recording anywhere, but the SJC felt conversations in a home should be protected. Rather than insist on a full blown wiretap warrant, however, the SJC authorized the less cumbersome procedure of a regular search warrant. The SJC reasoned that a regular search warrant would still uphold Article 14, by subjecting police information to:
the scrutiny of a neutral magistrate.
144
Comm Vs Blood (1987)- involved a police informant who wore a a wire to record conspirators planning a gold theft. Many conversations took place in the perpetrators homes. At the time, Massachusetts and federal law authorized one party consent recording anywhere, but the SJC felt conversations in a home should be protected. Rather than insist on a full blown wiretap warrant, however, the SJC authorized the less cumbersome procedure of a regular search warrant. The SJC reasoned that a regular search warrant would still uphold Article 14, by subjecting police information to the scrutiny of neutral magistrate.
As a result, when law enforcemnt officers want to record in a suspects home, they must obtain a search warrant, nicknamed a "blood warrant" after the case that created it. The blood warrant is different, because:
instead of seizing tangible evidence (such as drugs or stolen property), it authorizes the collection of oral communications.
145
Four exceptions to Blood Warrant:
Exception 1:
Answer: Federal investigation
*wiretap statute and article 14 do not apply to federal officers conducting a fed investigation. When local officers participate in a federally run investigation, the blood warrant standard does not apply. In contrast, when state involvement creates at least a "combined enterprise", participating federal offices are held to the Massachusetts standard for a blood warrant, if the case end up in state court.
146
Four exceptions to Blood Warrant:
Exception 2:
Answer: Officer Safety
-permits police officers "who are acting in an undercover capacity" to ALWAYS wear a wire for safety. However, the recorded interceptions may not be use as evidence unless police followed all relevant legal procedures.
** even when there is not organized crime connection, undercover officers may always wear a wire for safety
147
Four exceptions to Blood Warrant:
Exception 3:
Answer: Outside of suspects dwelling
Beyond the four walls of a dwelling or other private place, necessity for a blood warrant does not apply. This means an undercover investigator or informant does not need a warrant to record suspects in less private places, such as:
-Vehicles
-Jail
148
Four exceptions to Blood Warrant:
Exception 4:
Answer: Exigent Circumstances
Ex Defendant paid another man to pick up a package containing cocaine. After an undercover agent delivered it to the 2nd man, he claimed that the defendant had paid him and he did not know what was inside the package. Police placed a listening device inside the shirt of the 2nd man when he met the defendant to give him the package and get paid.
Bottom line: The investigators has exigent circumstances that nullified any Blood obligations. They were faced with a large shipment of cocaine and needed to quickly substantiate the 2nd man's story by recording a secret meeting with the alleged mastermind. There was no time to get a warrant.
149
Is a blood warrant necessary to videotape a drug transaction in a motel room where the defendant had been invited?
No.
150
Unlawful recording by government officials or their agents are suppressed, and so is the :
testimony of any individuals who listened to the unlawful recording- either while it was being made, or later.
151
Unlawful recording by government officials or their agents are suppressed, and so is the testimony of any individuals who listened to the unlawful recording- either while it was being made, or later. Still the testimony of anyone (blank- 6 words) is admissible.
personally involved in the recorded conversations
Ex. secret recordings of an undercover drug deal with the defendant was suppressed as a violation of Blood, but the undercover agent was still allowed to testify because his testimony was not derived from the illegal recordings.
152
Recording by a private party (not acting as a government agent) is:
Admissible.
Ex. a boarder in defendants home secretly recorded him beating his daughter. The tenant made the recordings while inside his private room. He gave them to police. It makes no sense to excluse evidence that the police had not part in creating.
* On the other hand, police have an obligation to tell a private party to stop secretly recording others.
153
A father, concerned that his 15 year old son was being sexually exploited by 57 year old defendant, placed a recording device on the family telephone. He secretly recorded two conversations between his son and the defendant that confirmed the existence of a sexual relationship. The father went to the local police . The police did not ask him to stop recording, so he made two more tapes. Will the tapes be admissible?
In this case, the first two recording were admissible. However, the last two recordings had to be suppressed. Although the father was not explicitly told by the police to continue, their silence mad him their unwitting agent.
My note: this is because neither party in the conversation was aware of the recording, unlike one party consent.
