Too Many High Tech Toys & Too Many Abuses

January 4, 2022

Electronic Invasions in Violation of the Fourth Amendment

 Good criminal defense attorneys prepare successful motions to suppress by staying informed of appellate court decisions that have a direct impact on legal defenses.


The caselaw shows that local police have developed an insatiable appetite for evidence obtained through the use of invasive electronic technologies. However, the investigations are also violating the Fourth Amendment at an alarming rate by misusing high-tech toys.


 In the recent high-profile case involving massage parlors suspected of housing prostitution and Robert Kraft, an industrialist best known as owner of a major NFL team, the Fourth District affirmed the trial court orders granting motions to suppress non-audio video surveillance recorded with concealed cameras covertly installed inside the parlors. In State v. Kraft, 301 So. 3d 981 (Fla. 4th DCA 2020), the Fourth District concluded that suppression was appropriate under the Fourth Amendment, since the warrants did not set parameters to minimize recording of innocent massage seekers, and police investigators did not employ sufficient minimization techniques when monitoring video or deciding what to record. See id. at 988, n.2 (“The term ‘minimization’ generally refers to warrant guidelines or techniques to be applied by law enforcement agents to narrow, or minimize, the breadth of the activity that is surveilled.”).


 In 2012, the State charged defendant Danny Martin with first-degree murder after a woman was found dead in their shared apartment. Detectives tracked the defendant to an area using cell-site location information (CSLI), but unable to find his exact location, the detectives went outside the scope of the court order and used a “cell-site simulator” to locate him. Defendant was found sitting in the murder victim’s parked car along with several pieces of evidence. In State v. Martin, 287 So. 3d 645 (Fla. 4th DCA 2019), the Fourth District concluded that defendant was entitled to suppress the evidence under the Fourth Amendment since detectives went outside the scope of the court order to find him. The Court held that defendant had standing to challenge the search because he challenged the search and seizure of his location data, not the search of the victim’s car. Id. at 648 (affirming suppression) (“the State must establish probable cause and obtain a warrant before using a cell-site simulator. The use of a cell-site simulator is even more invasive than CSLI, as it allows law enforcement to track an individual’s location in real time without going through the third-party service provider. This presents significant privacy concerns. In [State v.] Sylvestre, [254 So. 3d 986, 992 (Fla. 4th DCA 2018),] we … held that the CSLI order did not authorize use of a cell-site simulator.”) (brackets added).


 In Sylvestre, the State charged defendant Quinton Sylvestre and two co-defendants with first-degree murder with a firearm while wearing a mask and six counts of robbery with a firearm while wearing a mask, in relation to the robbery of a Boca Raton restaurant. The State sought and obtained an order requiring defendant’s cell phone service provider to disclose real-time CSLI for what it believed was his cell phone number. A judge signed the “CSLI Order,” requiring the provider to disclose “all cell-site activations and sectors for all incoming and outgoing calls/communications . . . call detail location records, ‘angle from the tower’ data, including contemporaneous (real-time) with these communications, and historical calls/communications detail records.”


Later, the State applied for a warrant to search a Fort Lauderdale residence. The affidavit in support of the warrant averred that “[m]obile tracking was activated on [defendant’s] cell phone pursuant to a lawful court order” and that defendant’s phone was “placed specifically” at the residence and had been “stationary overnight within this residence for several concurrent nights.” A court granted the residential search warrant, and detectives found a backpack containing three firearms, a mask, ammunition, and a stun gun. Defendant moved to suppress all evidence found during the residential search, arguing that the State exceeded the scope of the CSLI Order by using a cell-site simulator to pinpoint the exact location of his phone inside the home. In State v. Sylvestre, 254 So. 3d 986 (Fla. 4th DCA 2018), the Fourth District concluded that the Court did not err in granting suppression under the Fourth Amendment where the evidence was derived from surveillance using a cell-site simulator without a warrant.


 In Ferrari v. State, 260 So. 3d 295 (Fla. 4th DCA 2018), on the appeal from a conviction for first degree murder and a conspiracy to commit first degree murder, the Fourth District concluded that the trial court erred in denying suppression because the State obtained historical cell phone location data without a warrant in violation of the Fourth Amendment. Id. at 298 (“In Carpenter v. United States, 138 S. Ct. 2206, 2217, 201 L. Ed. 2d 507 (2018), the United States Supreme Court held that accessing historical cell phone location information constitutes a search under the Fourth Amendment requiring a warrant and probable cause. Here, because the state acquired the CSLI without a warrant issued on probable cause, the court erred in denying the motion to suppress.”).


In the prosecution of a juvenile for the burglary of a conveyance, the officer saw a “cell phone or two” plainly visible “[i]n the front passenger and compartment area” of an abandoned stolen vehicle. On the phone’s screen was a photo of an individual that looked “similar to the person who ran from the vehicle.” The officer turned the cell phone over to the Sunrise Police Department in connection with the stolen vehicle investigation.

Several months later, a forensic detective was asked to determine ownership of the phone. He did not obtain a search warrant because he believed that the cell phone was abandoned. The forensic detective unlocked the phone, and obtained information indicating that the cell phone belonged to K.C. In State v. K.C., 207 So. 3d 951 (Fla. 4th DCA 2016), the Fourth District concluded that the trial court did not err in suppressing the contents of the cell phone because the abandonment exception to the warrant requirement did not apply to cell phones whose contents were protected by a password. Accessing the contents of the password-protected cell phone without a warrant violated the Fourth Amendment. Id. at 958 (“Because both the United States Supreme Court and the Florida Supreme Court have recognized the qualitative and quantitative difference between cell phones (and their capacity to store private information) and that of other physical objects and the right of privacy in that information, we conclude that the abandonment exception does not apply to cell phones whose contents are protected by a password. Paraphrasing Chief Justice Roberts, “[o]ur answer to the question of what police must do before searching [an abandoned, password protected] cell phone . . . is accordingly simple—get a warrant.”) (quoting Riley v. California, 134 S. Ct. 2473, 2495 (2014)).


Defendant Worsham was the driver of a vehicle involved in a high speed accident that killed his passenger. The car was impounded. Days after the crash, law enforcement downloaded the information stored on the car’s event data recorder without applying for a warrant. A warrant application was submitted after the information was downloaded, but denied since the search had already occurred. In State v. Worsham, 227 So. 3d 602 (Fla. 4th DCA 2017), the Fourth District recognized a reasonable expectation of privacy in data stored by an event data recorder in defendant’s impounded car and concluded that downloading data from the car “black box” without a search warrant or in the absence of exigent circumstances violated the Fourth Amendment. The suppression of evidence was affirmed by a majority of the Court over the dissenting opinion of Judge Forst.


           The 4th District Court of Appeal governs these situations in Fort Pierce, Port Saint Lucie, Vero Beach, and Saint Lucie County, and the rulings of the higher court have remained vigilant to invasion of privacy via technology. With the rapid advance of technology, an effective criminal defense lawyer must remain informed of the jurisprudence to provide the best possible defense that every client deserves.


f you are looking for an experienced criminal defense lawyer who will aggressively defend your case in Indian River, St. Lucie, Martin and Okeechobee County, contact the Law Office of Brian H. Mallonee at (772) 464-1991.

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