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I always tell friends.  If there is anything in your life you don't want to come back at you.  Leave cellphones and your personal vehicles with factory installed GPS away from you.  Your bank accounts, salary, type of vehicle you drive is also collected evidence.   

 The Importance of Subpoenaing Cell Phone GPS-Data Records in California Criminal Cases

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In certain criminal cases, whether you are the defense attorney or even the defendant, the difference between a “guilty” or “not guilty” verdict may depend on you proving where the defendant, the alleged victim or the key prosecution witness was located at the time of the alleged crime. Perhaps the best way to do this is by introducing as evidence certain cell phone GPS data that establishes his or her location at that particular time. The purpose of such evidence is to provide an alibi or to impeach the alleged victim or witness. For example, if you can prove that the main witness against you was nowhere near the scene of the alleged crime as he or she claimed, then you can effectively nullify his or her entire testimony, and thereby seriously weaken the prosecution’s case.

In any California state criminal case, as a matter of law, and as part of what is called the “discovery” process in a criminal case, prosecutors are required to turn over to defense counsel any and all potentially exculpatory evidence. This is any type of evidence (including documents, photographs, videos or witness statements) that could either support the defendant’s defense or otherwise weaken the prosecution’s case. However, since cell phone records are typically not in the custody, control or possession of the prosecutor, defense counsel must subpoena these documents directly from the cell phone company.

It is first important to understand exactly how the cell phone owner’s location is determined. When you make a call from a cell phone, your cell phone will emit radio signals that bounce off local cell towers. This is known as “multi-lateration”. As a result, the location coordinates of your cell phone can be identified at any particular time you are either calling.

The District Attorney’s Office or City Attorney’s Office will be required to provide defense counsel with the information you will need to subpoena these records – specifically, the alleged victim’s or other user’s cell phone number. Otherwise, this information will be contained in the police report. You can then Google that phone number to identify the specific cell phone carrier.

Once you have identified the carrier, then serve the company’s Custodian of Records with an “ORDER TO ATTEND COURT OR PROVIDE DOCUMENTS: Subpoena/Subpoena Duces Tecum (Criminal and Juvenile)”, also known as Judicial Council of California form CR-125/JV-525).

You should give yourself at least a 60-day lead time to obtain the records from the carrier before your preliminary hearing or the trial itself. But here’s the big (and expensive) catch: the documents identifying the location of the alleged victim or prosecution witness will be highly technical. Therefore, you will require the services of an expert witness who specializes in interpreting cell phone and GPS data. Fortunately, a competent, knowledgeable, and experienced expert should be able to interpret that data to the jury in a clear and irrefutable manner. Once you can place the defendant, the alleged victim or witness far away from the alleged crime scene, the District Attorney’s entire case will collapse.

I have used this methodology to exonerate a number of my own clients, but my favorite example is that of Mr. Corey Stewart. On February 27, 2013, Corey was arrested by the Gardena Police Department after a Hawthorne woman claimed he had forcibly raped her at gunpoint on a side street inside his vehicle. The Los Angeles County District Attorney’s Office charged Corey with Rape with Force. If convicted, Corey would have almost certainly have received a life sentence. Corey’s face and name were splashed all over the local evening news and front pages of the local papers. The media even shamelessly and salaciously labeled him “the South Bay Rapist”.

Needless to say, Corey’s life was (temporarily) destroyed. He hired me after spending 14 months in jail, during which time the alleged victim repeated her allegations to the police and prosecutor over multiple interviews. From day one, he insisted on his innocence and refused to consider any plea offers from the D.A.’s Office. He was also adamant that he had never been to the side street in question, but rather, that he had consensual sex with the accuser in a motel. I never had any doubt that he was telling the truth and that he was innocent.

I immediately commenced a thorough and intensive investigation of the allegations with the help of one of my top private investigators. It soon became evident that the alleged victim was actually a “con woman” who scammed multiple men out of money based on her false claims. In addition, neither the police nor the Assistant D.A. prosecuting the case could produce any evidence whatsoever (including from traffic cams, ATM cameras, or any other video footage) that Corey had visited the side street on the day in question. Nor could they prove the existence of any such SUV or firearm. Other evidence I uncovered directly refuted the woman’s allegations and overwhelmingly supported Corey’s version of the events at issue.

But it was only when I subpoenaed the alleged victim’s cell phone records that both the police and prosecutor knew she had been lying to them all along. With the help of my expert witness, I was able to prove to them that Corey had been nowhere near that side street on that day. Armed with this irrefutable evidence, the police detectives re-interviewed the woman. She then provided them with an entirely different story that, of course, made absolutely no sense whatsoever. There was no doubt that she had been lying to them all along.

Only days after this final interview, on June 4, 2014 (which was the first day of our jury trial), the D.A.’s Office dismissed the case by dropping all charges. After spending 15 months in custody, Corey walked out of jail a free man. Fortunately, this story had a happy ending: Corey was able to put his life back together, found a good career, and became happily married. I am honored that he credits me for saving his life, but without the cell phone records, it would have come down to his word against hers. (You can watch a video about Corey’s ordeal on my website.)



The Role of Cell Phone Location Forensics in Criminal Cases
 

Thousands of new criminal cases take place every year where the location of a cell phone is of critical importance and the activity of a person holding a cell phone can be the deciding factor in a case. From drug overdose fatalities and homicides, to terroristic acts, bomb threats, carjacking, and other major crimes, phone records are a common and reliable source of evidence. Given the connected world we live in, people may not be aware of the fact that everything they do, and nearly everywhere they go, their phones or devices can potentially track it.

For instance, in less than a week after protestors rallied around and inside our nation’s Capital, more than 100,000 sources of digital evidence had been received for review by authorities.1 Given this data-driven environment and the abundance of devices people use, examining cell phone location evidence and data pulled from Call Detail Records (CDRs), one can easily learn about a person’s digital history and whereabouts.

How does it work?

Wireless or cellular networks are made up of tens of thousands of cell towers. Cell towers, or cell sites, are installed by wireless phone companies with the goal of providing seamless cellular coverage to cell phone users. These cell towers house a varying number of antennas emitting radio signals in different directions, installed in fixed locations virtually anywhere.

In order to make a phone call or send a text message, the cell phone must be within the radio range or coverage area of a cell tower. Every time a cell phone is used to place a call or text, the cell tower that the phone connects to records data in the phone carrier’s database. The information gathered from the wireless carrier’s network equipment can then be used to determine the general location of where a phone call or text message was placed, the date and time of the call or text, the called numbers, the duration of phone calls, and the latitude and longitude of the tower’s location.

It sounds simple enough, but it’s actually quite complicated. In fact, it is very easy to misinterpret this type of data and in some cases, put innocent people in jail. Denmark recently freed 32 inmates over flaws in phone geolocation evidence and they have placed a moratorium on the use of these records at trial.2

How is this data used to determine the location of a phone call?

CDRs, or phone records, are produced by wireless carriers, such as Sprint, Verizon, T-Mobile, AT&T, and US Cellular, and though not publicly produced, they can be obtained through legal process or upon a user’s request in an effort to uncover further information. During criminal cases, these records are often analyzed to determine who was in a certain area at a certain time.

As an example, an armed robbery took place in a major city and a young man was arrested and tried for the crime. At his trial, a digital forensics expert was not consulted to interpret the location data from the CDRs. The young man was convicted and sent to prison. Three years later, a digital forensics investigator at Envista Forensics was consulted. Following further investigation, our Envista Forensics expert determined that the phone records unequivocally proved that the young man could not have been at that location at the time of the armed robbery. After some diligent work by the public defender, the young man was released from prison and all charges were dropped.

Can a cell site analysis provide a pinpoint location?

Cellular networks are designed to provide and maintain consistent coverage across large geographic areas, which allows legal or government authorities to obtain the general location of where a cell phone call or text message was placed. When properly analyzed, CDRs can not only determine the city and state of a cell phone call or text message but it is even possible to determine what side of town the transaction occurred and in some cases, specific areas of a town (i.e. neighborhoods, business districts, shopping districts, etc.).

There are several factors that play into how accurate a location can be determined when the analysis is based solely on CDRs, such as density of network towers, subscriber usage, and geographic location. One factor is simply the popularity of the carrier. We’ve all seen the television commercials about how much coverage each wireless company has and why you should choose that particular company for your wireless phone service. The coverage a carrier has is based on the density of cell towers, which makes a big difference in how accurately the location of a phone can be determined from phone records. For example, there are numerous cell towers in the different boroughs of New York City, which means that the location of a phone in the Bronx could be narrowed down to a city block or two depending on the wireless company and their coverage.

The Importance of a Cell Phone Location Expert

It is critical that an experienced and competent expert is consulted for CDR evidence during a criminal case. If an expert is not thoroughly trained and experienced in analyzing these types of records, it can be very easy to make mistakes. This is, again, the reason many cases have been overturned.

Through examination of cell phone location evidence and data pulled from CDRs, a person’s digital history and whereabouts can be quickly determined. In a world filled with technology at our fingertips, call detail record analysis for location forensics is often vital evidence in criminal cases and can ultimately be the deciding factor in the outcome of the case.

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Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.