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Take It From a Criminal Defense Lawyer: Cell Phones Can Help (or Hurt) Your Case, Part 2

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Recapping of Part 1

As we discussed in Part 1 of this series on cell phones as evidence in criminal-defense cases, our culture currently takes DNA for granted because it’s so prominent on TV forensic shows.

As Columbus, Ohio criminal defense attorneys, we know how DNA can make or break a case, and we also know smartphones are the new electronic DNA. When we meet with a client in a criminal case, one of the first things we consider is how smartphones can help (or hurt) criminal defense.

While we’ve covered how social media can be used against you in a criminal case, most people don’t realize the evidentiary potential of the phone they’re carrying around in their pocket. Phones can tell us (and the police) where you’ve been, who you’ve been with, what you like, what you don’t like, who you talk to, what you’ve read, what you’ve researched, what you’ve said, etc. The list goes on and on.

While we provided a general overview of how cell phones can be used to help or hurt your criminal-defense case in Part 1, in this post we’re going to get a little more technical. Read on to see how finding the right Columbus, Ohio criminal defense lawyer is essential to your case.

Cell phone tracking: An introduction

Most people don’t realize their cell phone is dropping bread crumbs wherever they go. The crumbs are invisible to us. We drive around, make calls, send texts, surf the web. It seems private, but to the police (and good attorneys who know what to look for and how to find it), cell phones are leaving a glaring trail of hunter-orange bread crumbs.

Real-time “live” tracking of cell phones

If the police are really hot and bothered (and know how to do real police work), it’s possible to track a person in real time by monitoring his or her cell phone.

All cell phones “ping” cell towers. “Pinging” is an old sonar term. Just like in the old submarine movies, cell phones send out “pings” constantly. They do this so they can locate the best tower to use to access the network. With the right software (and legal authority), cops can monitor these pings and use them to follow and track the phone as it’s moving. That means they can follow a suspect (think dope dealer) as he or she travels around the city, state, country, or wherever.

It’s also possible for police to follow a phone using its GPS features (depending on the location services on the particular phone). Think about the “find-my-phone” app you downloaded. So when you stop at the strip club on Saturday night after you told your wife you were crashing at a buddy’s house, she can look up your phone and find out where you are. That’s GPS technology at its finest. Now imagine that in the hands of the cops, FBI, or whoever. Not so private anymore.

Live, real-time tracking is typically for cops only. This type of tracking is pretty sophisticated, and it requires court orders and special equipment. But it can be done. And it is being done.

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Historical tracking: tower analysis

Historical tracking is more common than live tracking. And tower analysis is the most common way to conduct historical tracking.

It’s pretty simple once we understand how cell phones work. Imagine a phone tower on a map as a small dot. Then imagine a circle drawn around the dot. This circle will typically cover about a one-mile radius. For those who care, that’s 2,010 acres. Think about the standard size of a suburban housing development.

Now, picture a peace sign in that circle. Each portion of the circle delineated by the peace sign represents a sector covered by that tower.

Why does any of this matter? Well, if we are smart enough to ask for the correct records, we can look at call records and find out what tower relayed a particular call at a particular time. And more, we can figure out which sector the phone was in when the call was made. Then we can use that info to see where someone was at a particular time (assuming he or she was using his or her phone).

This is getting more and more accurate. It used to be we could only show the phone was in a particular sector, without any specifics as to where in that sector. That was pretty good. But now it’s even better. Carriers are now able to give us something called PCMD (Per Call Measurement Data, RTT if it’s Verizon). So now it’s possible to narrow down the location and distance from a tower, within a particular sector. So far, it’s down to tenth-of-a-mile increments.

The problem with PCMD is it has a short fuse. Carriers don’t retain those records long, maybe less than 14 days. That makes this mostly a cop tool. But any good criminal-defense attorney should know about this stuff. And in the right situation, we just might be able to help a client under investigation by getting some records in advance of a charge.

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Historical tower-tracking pitfalls

Tower tracking isn’t a perfect science. Even on the best of days with PCMD, the location of a phone can be narrowed to only a 10th of a mile. There are times when that variable can make or break a case.

Call duration is another potential problem. Say a call starts on one tower and lasts an hour. During that time the caller was driving. The records will generally only show the start and finish towers, not all the towers in between. Again, there are limits. And depending on what side you’re on, criminal-defense attorneys need to know them.

Even attorneys who think they’re doing it right often miss something crucial (and so do the cops). Towers are not infallible. They break down like any other mechanical structure. This doesn’t mean our phones quit working, though. Instead, they’re programed to look for another tower. And therein lies the problem. If a call is bounced to another tower, it can throw off our geographical tower info and make it look like the phone was somewhere else.

The trick is in the records. We have to ask for all records, including maintenance and repair records. This will show us if and when a tower was down. Is it likely a tower happened to go down at the precise time it mattered to a criminal case? Probably not. But if it did, we sure want and need to know about it.

Another common mistake involves tower orientation. We need to know where to draw the “peace sign” on our tower radius. To know this, we need to know how the tower is oriented. In other words, north needs to be north. Otherwise we could be on the wrong side of the circle when we track the call.

Historical geo-tracking: poor man’s cell analysis

Think for a second about the last time you took a picture with your phone. It maybe even landed on Facebook. Or maybe it traveled by email to a friend, group of friends, or family.

What most people don’t know is that pic is not just a pic. There’s a lot more to it than that. It’s really an electronic file. And there is all sorts of “secret” data embedded on this pic file you sent.

Almost all smartphones have something called “location services” or some other GPS capability. When we take a picture with our phone, the location services embeds on the pic file the exact GPS location of the phone at the time of the pic. Just for good measure, the phone also embeds the time and date info on the file.

So, if we want to know where our client was at a particular time, we can look at his photo log and see what pictures show up. What’s more interesting (and possibly damning) is the info stays with the picture file when it’s sent to others, including Facebook.

The trick is knowing how to get this info. All we need to do is go online and download an EXIF reader (Exchangeable Image File Format). Run the file through this reader and extract the location, time, and date info. Voila. Poor man’s tower analysis.

The beauty of this is we can do it in our office. It doesn’t take additional records, experts, or anything else. So when a witness posts a pic on Facebook while claiming to be in the vicinity of your case, check it out and see if it’s true. There just may be gold in those files.

What’s the moral? Be aware of what’s on your phone. And if you don’t want anyone to ever look at your EXIF data, turn off your location services.

Conclusion

Cell phones are part of our lives, and they’re here to stay. Every day we see a new ad for the next latest and greatest smartphone.

Because phones are part of our lives, they become part of our cases, particularly criminal cases. Think about alibis, witness impeachment, basic timeline, or any other creative way this stuff matters.

The important thing is to hire an attorney who understands the issues and has access to the experts. We can’t ignore just because we don’t know it.

If you’d like to schedule a consultation with us, you can call 614-224-6142, or click here to fill out our consultation request form.

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