If you've been charged with one of any number of federal or state crimes, you may be thinking only about paying back your bondsman or coming up with a foolproof defense, without much consideration as to the items that could be sought from you under a search warrant or subpoena. In some cases, evidence gathered from your phone or computer records can find you facing even more severe criminal charges than originally considered. Read on to learn more about crimes in which these records can be seized, as well as steps you can take to protect yourself and your belongings from examination by the police and prosecutors.
What are some common types of crimes in which phone or computer records can be seized?
Phone and computer records (as well as the physical items themselves) are among the first items seized in any matter dealing with mail or wire fraud, child pornography, intimidation, racketeering, or other types of online crimes. However, these items can also be sought in cases seemingly unrelated to the devices. You might have to give up your phone or computer if charged with criminal mischief or theft, and prosecutors may look into your phone records to corroborate your alibi for any number of other crimes. In some cases, a criminal investigation against your employer could result in a company-wide seizure of these records.
Phone and computer records may be requested by the plaintiff if you're being sued for certain types of civil matters as well. For example, if someone has filed suit against you for causing personal injuries in a car accident, the plaintiff may request your cell phone records be subpoenaed so that he or she can establish that you were texting or surfing the web while driving. You could also find yourself giving up the texts themselves in a divorce case or custody action.
What should you do to defend yourself against this type of seizure?
In criminal cases, if the items have been requested by subpoena (rather than seized under a search warrant), your criminal defense attorney may be able to file a motion with the court requesting that the subpoena be quashed, or ruled invalid. This would prevent you from having to provide the items themselves or access to the items. In civil matters, your attorney should be able to make a similar argument to the trial court, requesting that the court prevent you from having to turn over the items or evidence.
If the items have already been seized, your attorney's next step is to have them excluded from the evidence presented against you. This won't prevent the prosecutor from bringing an entirely different criminal charge against you for items viewed or taken from your devices, but will prevent the evidence from being used during the trial of your pending matter. If the evidence is excluded, the prosecutor or plaintiff is not even permitted to refer to it during trial.
If the trial court denies your attorney's motions and your concern about turning over the items is serious enough, you may wish to appeal the trial court's denial of your motion to exclude these items from evidence. If the state or federal court grants your appeal, you'll be able to re-argue the case before a higher court and -- in some cases -- reversing the ruling. If this happens, the remainder of your case is tried out in the trial court, before the same judge, but without the evidence from your phone or computer. If this evidence was crucial to the prosecution or plaintiff's case, they may choose to drop the action against you.