State Courts Uphold Police Deception on Seized Phones

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Posted on Jul 10, 2013 1:02pm PDT

Think about what the following things have in common: The phone numbers you dial. The e-mails you send. The books you purchase online. The text messages you send. The cocaine purchases you line up.

The answer is that anytime these things are found on your phone, state courts have repeatedly ruled that they aren't protected from police seizure and use in future investigations.

Our Birmingham drug crime defense lawyers learned recently of one such decision, handed down by a Supreme Court in Pennsylvania, which further backs this stance.

Here's what happened:

Back in 2009, two individuals believed they were calling their illicit drug dealers when they dialed their cell phone numbers. However, what they didn't know was that those phones had been confiscated by detectives working with the local county drug task force in an earlier bust.

So when these individuals arranged to set up narcotics purchases, detectives played along, pretending to be the dealers. Ultimately, this resulted in an undercover sting that led to the defendants' arrests.

Defense lawyers had attempted to argue that the officers' actions in these cases amounted to improper police interception of communications, which would have been in violation of the state's Wiretap Act. Two county judges were convinced, and barred prosecutors from entering the phone-related evidence into the case.

However, that earlier ruling was overturned, after state judges, deciding both cases as one matter of law, ruled that such evidence is allowable under the law. The reasoning, the judges said, was that officers who answer calls made to phones that had been seized weren't technically "intercepting" anything. As such, the state Wiretap Act wouldn't apply. The court found that the defendants had initiated the communication and were doing so of their own free will to a phone number of their choosing. The fact that they were mistaken about who had possession of the phone, the court ruled, didn't matter.

A similar ruling was handed down in Washington state just last summer. In Washington v. Roden, the courts ruled that police have the right to assume the identity of a drug dealer from a phone that had been seized by that individual.

That case involved strikingly similar circumstances. The defendant exchanged a series of texts with his drug dealer in an effort to arrange to purchase cocaine. What the defendant did not realize is that the dealer had been arrested a short time earlier.

Pretending to be the alleged dealer, detectives arranged to "sell" the defendant drugs at a local grocery store. However, the whole thing was a ruse and the defendant was arrested.

The defendant's lawyers would later argue that these actions were a violation of the state's privacy laws, which forbid government interception of private communication transmitted by phone.

However, the appellate court ruled that the defendant had no expectation of privacy with his text messages because as he understood, he was transmitting them to be "recorded" or saved onto another device, which could have potentially been read by anyone. As such, the court found, he had no reasonable expectation of privacy.

Such cases raise all kinds of questions regarding privacy, entrapment and the scope of law enforcement power. These cases set a troubling legal precedent, but they don't necessarily have a direct effect on those arrested in Alabama drug crimes. However, they do underscore the need for a strong defense.

If you have been arrested in Birmingham, contact Birmingham Drug Crime Defense Attorney Steven Eversole at (866) 831-5292.

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