With some of the most innovative and advanced technology the world has ever seen having been developed in the last 30 years, it isn’t surprising that some of the most compelling evidence in criminal investigations now comes in digital form. At any given moment, a person may have such devices as a laptop, smart phone, or smart watch on their person, meaning that they often leave a clear digital trail of their day-to-day activities. In addition, studies show that nearly 63 million Americans have one or more smart devices in their home, many of which are recording video footage from both outside and inside the home 24/7. Needless to say, there is never a time when we are not around technology. Because of this, many law enforcement agencies consider digital evidence more important than DNA or fingerprints.
In this blog, we’ll be going more in-depth as to what role digital evidence plays in criminal cases and how you may be implicated if you are the subject of a criminal investigation.
What Is Digital Evidence?
Digital evidence includes any information or data that is stored on, received by, or transmitted by an electronic device that could provide benefit to an investigation. Some of the most common types of digital evidence that many people are already aware of are text messages, emails, web searches, and digital pictures and videos. However, as technology rapidly progresses from year to year, more forms of digital evidence become applicable to being used to prove or disprove a crime. These can include:
- Social media activity
- Digital documents and files
- Computer files and data
- Surveillance footage and images
- GPS and location data
- Financial records and transactions
- Log files
- Smart TVs or other smart appliances
- Vehicle data
- And more.
Digital evidence can be obtained when electronic devices are seized and secured to be analyzed. Some other important facts to know about digital evidence is that it is often latent – meaning it is hidden in much the same way as fingerprints or DNA evidence. Because of how instantly it can be transmitted, it crosses jurisdictional borders quickly and easily; it can also be readily altered, damaged, or destroyed, and it can be time sensitive.
When Is Digital Evidence Permissible To Be Seized By Investigators?
A search and seizure is used by law enforcement to examine the home, vehicle, business, electronic devices, or other suspected locations relating to a person who is accused of a crime. Because the Fourth Amendment of the United States Constitution protects American citizens from unreasonable searches and seizures, law enforcement must submit their reasonable suspicions to a judge and obtain a warrant in order to do so lawfully.
Investigators may only examine a certain part of the location, or they may examine it all, depending on the warrant they are granted by a judge (the search). If they find any clues or evidence that they believe points to the crime having been committed, they will take possession of those items (the seizure). There are exceptions to the requirement of a warrant; items or belongings that have been abandoned typically do not require a search warrant. Moreover, if the owner of the device gives consent for it to be searched, no warrant is needed. A person who is searched at any U.S. border or is on probation, parole, or supervised release is also permitted to be searched without a warrant as long as there is reasonable suspicion.
In the landmark Supreme Court case Riley v. California (2014), it was held that police will generally need to obtain a warrant to search digital or electronic devices. So, even if a device is confiscated during a lawful search and seizure, it may not be additionally searched without a warrant. Law enforcement must believe that they will find evidence of a crime stored within the device. The requesting officer must offer an oath and affirmation of their suspicions, particularly describe the items to be searched and possibly seized, and be granted authorization from a judge. Unless they have included a request to investigate the contents of the device in their initial warrant, they must submit a secondary request after the device is in police custody.
How Is Digital Evidence Used In A Criminal Trial?
There are a multitude of ways that digital evidence can be used in a criminal investigation and trial, but the most common ways include:
- To collect evidence such as deleted files or online activity and identify any potential new leads.
- To identify subjects by using data such as IP addresses, phone numbers, and other identifying information
- To trace communications such as emails, text messages, and social media posts which can link suspects together
- To corroborate testimony which has been claimed by a witness
- To identify locations using data such as GPS coordinates, Wi-Fi networks, and other location-based information
However, not all digital evidence is admissible in court. Factors such as authenticity, reliability, and relevance may be considered by a judge before they permit or prohibit its use as it pertains to the case at hand.
What Should You Do If You Believe The Police May Soon Try To Search Your Electronic Device?
Know your rights. Remember, the 4th Amendment protects you from unlawful searches and seizures, so if officers claim to have a warrant, you have a right to see it and review the contents included. You also have a right to remain silent and should invoke it. This can be as simple as stating, “I will not answer any questions without my attorney present.” Finally, the 5th Amendment protects you from supplying officers with self-incriminating evidence, so do not provide the passwords to any devices or accounts.
Don’t interfere with the search. This could lead to your arrest and even be used against you should your case go to trial. Even if you believe the search is unlawful, you should not interfere or attempt to destroy evidence. If you can, write down the names of the officers present, as well as their badge numbers, and save the information to give to your criminal defense attorney.
Seek the representation of an experienced and capable criminal defense attorney immediately. Your attorney will be able to review the events that have occurred and determine if your rights have been violated thus far, and may also be able to get charges dropped or reduced if the digital evidence was obtained by law enforcement illegally.
Call Alatorre Law Now For Help Navigating Your Next Steps
Being the subject of a criminal investigation can be scary, but you have rights and you have options! Our lead attorney, Javier Alatorre, has nearly two decades of experience with criminal cases, and is licensed in both the U.S. and Mexico. Call today to schedule your Free Case Evaluation and let us put our deep knowledge and skill to work for you!
