In an extremely controversial 4-3 opinion, the New Jersey Supreme Court upheld trial and Appellate Division rulings compelling a defendant to provide his cellphone passcode pursuant to a search warrant. The defendant was an Essex County Sheriff’s Officer accused of providing a drug dealer confidential information about an investigation into the dealer and his co-conspirators.
A new, just released report shows the number of federal and state-authorized wiretaps conducted in 2019. A wiretap is a court-authorized warrant, allowing law enforcement to listen to and record conversations and/or text messages on a target’s phone. In most jurisdictions, the law enforcement agency applying for such an order must demonstrate that there is probable cause to believe that the target is engaged in a specified unlawful activity, that he uses the particular phone to conduct his illegal activity, that traditional methods of investigation have been tried or would not likely be successful, and that the wiretap is necessary to uncover the full extent of the target’s criminal activity, and/or the other coconspirators’.
If you are a small business that was lucky enough to find a bank willing to accept and fund your small business Paycheck Protection Program (PPP) application, then a small portion of the $670 billion program went to an intended beneficiary. Unfortunately, many small businesses quickly learned larger banks were unwillingly to process their applications. News reports revealed banks received $10 billion in fees for the first traunch of funds dispersed, for which they received a set processing fee of 1-5% based on the size of the loan. A lawsuit filed in the U.S. District Court for the Central District of California against several major banks alleges they moved larger borrowers to the front of the line, ahead of many deserving smaller businesses in order to maximize on origination fees. Some corporations received tens of millions of dollars from the federal small business lending program, which initially ran out of money on April 16. Although the program has been funded once more, applicants are under much greater scrutiny.
The Department of Justice (DOJ) and various state agencies have announced that they will aggressively pursue fraudulent schemes related to COVID-19. On March 16, Attorney General William Barr directed all U.S. Attorney’s Offices to prioritize the detection, investigation, and prosecution of all criminal conduct related to the Coronavirus pandemic. Each office was directed to appoint a COVID-19 fraud coordinator to serve as the liaison between the local Department of Justice and their state and local counterparts.
Despite the United States Supreme Court decision in Carpenter v. United States requiring law enforcement to obtain a court authorized warrant for historic and current cellphone location data, four main cellphone carriers have continued to sell real-time location data to a host of entities, including federal law enforcement agencies. The Federal Communications Commission (FCC) is proposing fines of up to $200 million against these carriers for the violations.
When a person is a target of a federal or state criminal investigation, they are often contacted − either directly if unrepresented or through counsel if represented − to attend either a proffer or a reverse proffer with the U.S. Attorney’s Office, State Attorney General’s Office, or County Prosecutor’s Office.
The world is now a much smaller and more surveilled place. Private companies that make our smart phones, home security systems, smart home systems, baby monitors, computers, E-Z Pass, real time traffic apps and many more internet-of-things devices track, record and store information about our personal lives. Law enforcement has access to much of this information, often without the need for a warrant. Furthermore, law enforcement has its own methods to track and record private citizens through wiretaps, license plate readers, surveillance cameras, mobile tracking devices, hidden recorders and many other devices and methods.
Many police departments around the country use body worn cameras to capture officers’ interactions with citizens and suspects. When properly used, the footage from these encounters has proven helpful to prosecutors and defense attorneys, allowing both sides to examine one aspect of the encounter. When combined with eyewitness reports, police reports, footage from video cameras in the area and traditional evidence, a more complete understanding of the incident should be available. The growing popularity of body worn cameras has revealed, however, that the recordings can present a one-sided view, and are capable of being misused, misinterpreted, and tampered with.
We receive many calls over the course of the year from potential clients, telling us they received a “target letter” from the U.S. Attorney’s Office or State Attorney General’s Office and that they are considering whether to go to an interview with law enforcement under a “proffer agreement.”
I have written a number of times about modern technology being used in criminal investigations, from cellphone towers tracking our phones, to Alexa and other smart home devices used to record internet searches and conversations, to security cameras used to spy on their homeowners. Recently, the New York Times and other media outlets reported that Google has the ability to track which cellphones are in the area of a crime scene at a particular time. Once law enforcement narrows down which phones they are interested in, they obtain a warrant for the particular cellphone owner’s information.