DANGER - "General" Search Warrants in the Digital Age

By Darren M. Gelber |   Jun. 1, 2015

If you knew that there was a chance—maybe even a good chance—that a law enforcement officer could gain access to every single text, email, photograph and voice mail on your smartphone, going back years, because you were suspected of criminal activity, would you change your behavior? Say less? Save less? As the law struggles to keep pace with rapid advancements in technology, the threat to individual privacy rights is rising just as quickly. More and more, law enforcement officers investigating criminal activity are securing warrants to search the smartphone contents of the targets of their criminal investigations. The justification for these searches is often if there is probable cause to believe that an individual is involved in criminal activity, it follows automatically that probable cause exists that the target’s smartphone is being used to facilitate that criminal activity--or at least communicate about it. And judges are approving search warrants in these cases, without any competent, specific evidence to establish that a particular smartphone is likely to contain evidence of a crime. This dangerous trend has yet to be checked under New Jersey law.

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Topics : police, Constitutional Rights, privacy, Electronic Data, information, digital, search | 0 Comments Read More

Access to Cellular Phone Records by Defense Counsel

By Darren M. Gelber |   Mar. 20, 2014

In many criminal cases, cellular telephone records are an invaluable resource. These records may shed light on whether an alleged victim or witness communicated with someone of importance in a case, and when. There are procedures and statutes in place that provide law enforcement officials a mechanism to obtain cellular phone records. But how can defense counsel seek and obtain cellular phone records? The answer is not an easy one.

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Topics : discovery, Electronic Data | 0 Comments Read More

If Pre-Indictment early disposition programs are to operate properly, full discovery to the defense counsel is essential.

By Darren M. Gelber |   Jun. 26, 2012

There are very sound reasons supporting pre-indictment disposition programs. In some counties, cases are placed on a Superior Court calendar, pre-indictment, and prosecutors and defense attorneys attempt to resolve them before the prosecutor invests time and effort to present the case to a grand jury. Depending on the county, this type of program is known as the Early Disposition Court (EDC), the Pre-Disposition Court (PDC) or the Pre-Indictment Program (PIP Court). Such programs benefit prosecutors, who can dispose of relatively simple cases without the need to present them to the grand jury, and benefit the defendant, who frequently is offered a more favorable disposition in exchange for resolving the case early.

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Topics : Guilty Plea, discovery, Electronic Data | 0 Comments Read More

Passing on Passwords

By Darren M. Gelber |   Jun. 18, 2012

Technology and the LawA recent article in the NJ Law Journal (May 14, 2012, p. 3) piqued the Monitor’s interest as a harbinger of things to come. According to the article, as Morris County prosecutors were preparing to try a criminal defendant facing narcotics charges, they realized that law enforcement officers had seized several cell phones and a Blackberry at the time of the arrest. Interested in learning what information might be contained on these phones, prosecutors applied for and were granted a search warrant authorizing them to inspect the information contained in the phones. However, prosecutors and their investigatory staff apparently ran into trouble when they could not crack a password-protected Blackberry to review the information on it. Therefore, they sought an order compelling the defendant to provide them with the appropriate passcodes to enable them to access the information stored in the Blackberry.

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Topics : smartphones, Right to Remain Silent, Constitutional Rights, John Dell’Italia, Morris County, Electronic Data, law enforcement, NJ Law Journal | 0 Comments Read More

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