When coming back across our border, law enforcement does not need probable cause to suspect that a crime has been committed, that you were involved, and that evidence of that criminal conduct is on your laptop, tablet or smart phone.
Every day we are bombarded with news about the ever-expanding investigation into the President and the alleged Russian connection to his staff. The news media has been filled with headlines and postings about people who are labeled a “person of interest,” a “subject,” a “target” or a “witness”. Do these terms have specific meanings to federal law enforcement? Yes and no. In the federal system, the term “person of interest” is not officially used. It’s use became widespread by some in law enforcement and the media back in 1996 during the Olympic Park bombing in Atlanta when it was announced that a security guard was a person of interest in the bombing. It euphemistically means that someone has suspicions about the person but not sufficient evidence. There are, however, very specific Department of Justice definitions for a target, subject or witness of an investigation.
Technology has advanced the ease and quality of life immeasurably. Smart phones are handheld computers that can surf the internet; deliver emails, texts and phone calls; take videos and pictures; make dinner reservations and track your every movement through various apps. Our cars can almost drive themselves with lane change warnings; infrared cameras; heads-up displays, cruise control with radar; event data recorders that record speed, braking and seatbelt use; and GPS tracking in case the car is stolen. Home security cameras, Amazon Echo, smart TV, smart appliances and the like can all be controlled remotely through the internet. A variety of devices that are small and comfortable enough to wear, such as Fitbits, iWatches and the like can track our movements, heart rates, calories burned, number of steps and location.
Violent police encounters and police officer involved shootings have dominated the national press for some time. Such encounters have led to mass protests; much-needed examinations of police policies, procedures and training; and pleas for better relations between the police and the communities they serve. One result has been the call for body worn video cameras that record encounters between police and citizens in real time. While not perfect, these body worn cameras can provide valuable evidence of what transpired at a given moment during what may have been a high stress encounter.
The Fourth Amendment of the U.S. Constitution protects us from unreasonable searches and seizures. Unlike a warrantless stop and search of a car or of a person walking down the street, when law enforcement searches a home or business they have usually obtained a search warrant to do so. A search warrant must be issued by a neutral and detached magistrate (judge); be supported by probable cause; and describe in detail the place to be searched and the things to be seized.
Between the President’s accusation that the prior President tapped his phones, and WikiLeaks recent exposure of alleged CIA hacking tools and techniques, much has been reported in recent days about the government’s ability to intercept and listen to our conversations over our cellphones; computers; smart home devices such as televisions and baby monitors; products such as Alexa and Amazon Echo; encrypted messaging apps such as Signal, WhatsApp and Telegram; and home security cameras and systems. All of these devices provide potential ways for the government and hackers to enter our seemingly private worlds and eavesdrop. The difference between the government and a hacker, however, is that the government must obtain a court authorized warrant to do so.
In many types of criminal cases, the right expert can be invaluable. Whether it is a forensic accountant in a complex fraud or tax investigation; a medical or billing expert in a healthcare fraud investigation; a forensic psychiatrist for a sex abuse or child pornography case; a computer expert for a computer crimes matter; or a drug or gang expert in a serious drug case, the proper expert retained early in the investigation can assist the client’s criminal defense attorney in his or her efforts to prevent the charges from being filed, or to develop a solid defense to aid in plea negotiations or to prevail at trial.
In the past few years, the explosion in the popularity of smart phones, text messaging, and use of social media has dramatically altered the fabric of our lives in ways that we are only beginning to understand. It has also changed the way that sophisticated attorneys investigate and litigate criminal cases. We all now carry with us detailed records of our conversations, photographs, and even our whereabouts in our mobile phones. For those unlucky enough to become ensnared in a criminal case, those records can become evidence of incalculable value. This is especially so for cases of domestic violence, where the parties almost always have created a voluminous record of communications in the form of text messages and online chats by the time a contested matter goes to trial.
Thanks to television and movies, most people are aware that prosecutors often make deals or agreements with individuals under investigation, wherein the person being investigated is granted immunity from prosecution or a reduction of charges in exchange for providing information to the government. Of course, the details of these negotiations are dramatized for the sake of the narrative; the reality of the situation is far more complex, particularly in white-collar criminal investigations. Almost any immunity or plea arrangement begins with a proffer agreement.
It’s 6 a.m. or 8 p.m., your doorbell rings and two people are standing outside holding up their badges and credentials. They say they are Special Agents with the FBI and would like to talk with you for just a few minutes about something important. They ask if they could come in to speak with you privately. Caught off-guard, and not wanting them to think that you have anything to hide, you invite them in (and, of course, you don’t want your neighbors to see them talking to you on your front steps). The agents are “friendly” and just have a few questions to get your input, your side of things. You decide to talk to them, only for a few minutes, in the comfort of your own home or office. At the end, they thank you for your time and hand you either a grand jury subpoena or a “target letter.” They say that you should get an attorney, or if you can’t afford one, the court will arrange for an attorney for you.