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. The drug dealer gave evidence establishing that the sheriff’s officer provided him information about undercover surveillance of his vehicle and phones, as well as other case related information. Law enforcement confirmed there were numerous texts and calls between the sheriff’s officer and the drug dealer. Law enforcement obtained a search warrant for the officer’s cellphones, but were unable to access them without the defendant’s passcodes or PINs.
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’. Such authorizations are usually limited to a 30-day period, but can be extended by a court under certain circumstances. Many individuals in the United States use encrypted messaging to protect their privacy – some for innocuous reasons, others for more illicit ones. Encryption may not, however, protect messages and conversations from being produced pursuant to a wiretap.
As discussed in a prior post, the Department of Justice has formed a nationwide task force comprised of AUSAs from each of the 93 U.S. Attorneys’ Offices, as well as Main Justice. Together they total more than 100 federal prosecutors, to investigate and prosecute fraud related to the ongoing pandemic. The District of New Jersey U.S. Attorney Craig Carpenito spearheads this effort.
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.
Many federal, state, and municipal courts have limited the number and types of cases they will be handling in the near term. Some have adjourned jury trials for several weeks and in some cases even months to see what happens after a period of isolation. Courts have summarily waived Speedy Trial Act rights and ordered continuances for a period of time. State courts in particular are promoting the use of video and teleconferencing in lieu of appearing in court. Municipal courts have adjourned court appearances for motor vehicle summonses and code violations. Detention has been waived in certain cases depending on the type of crime, the age of the offender, and other relevant factors.
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.
With our societal addiction to the internet, smartphones, and computers, today’s teens face growing exposure to new forms of harassment and bullying. These can sometimes lead to criminal charges for those engaging in this conduct, and potentially anxiety, depression and, suicidal thoughts for the recipients.
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.