Kings County Criminal Bar Association learns about gathering cellphone evidence at CLE

October 23, 2018 By Rob Abruzzese, Legal Editor Brooklyn Daily Eagle

The Kings County Criminal Bar Association held a CLE on gathering cell phone data during investigations. Pictured are past President Hon. Barry Kamins, speaker Jerome Greco and KCCBA President Michael Cibella. Eagle photos by Rob Abruzzese

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The Kings County Criminal Bar Association held its first continuing legal education seminar in Brooklyn Heights on Thursday since last May.

Jerome Greco, a digital forensics staff attorney at the Legal Aid Society in Manhattan, presented a two-hour program titled “Gathering and Using Cellphone and Location Evidence in a Criminal Case.”

The lecture taught attending lawyers about the range of information that is available to them, police officers and prosecutors that is obtainable via cell phone. He explained steps that defense attorneys can take to prepare for cases and how attorneys can pursue to preclude such evidence at trial.

“Just because everyone has a cell phone and people who commit crimes may use their cell phone doesn’t mean you automatically get to search someone’s phone,” Greco explained. “You have to have probable cause that the phone has evidence. It has to be a case-specific allegation too. It can’t just be because this person has done it in the past.”

Greco started the CLE lecture by having attorneys take out their own cell phones and he quickly showed them how much detail is involved in routine GPS tracking.

“You may notice a lot of familiar addresses on there,” Greco said. “Your work, your home, maybe a girlfriend, a father or mother. Something like that. Apple is keeping track of all of these locations that you are at on a regular basis, without you even knowing. That’s just one small piece of information that is available on your phone that you may not even be aware of.”

He then introduced Cellebrite, a company that makes devices that can extract data from nearly 90 percent of all cellphones on the market, Greco estimated. Even damaged phones, including those with broken screens or water damage, are likely still traceable, he said.

“If you think your phone is encrypted and password locked, plugging it into this thing will prove you wrong,” he said.

Greco warned about overreach in search warrants in cases where cell phone data is being gathered. He said that prosecutors can often ask for too much data from a phone and that catchall warrants could potentially be thrown out.

“Those catchall terms at the end of a search warrant give law enforcement the ability to search and seize every piece of data they can from the cell phone,” Greco said. “There may be times where that is a legitimate thing to do, but that is a very rare case. Considering the amount of data being kept on a phone, that is a scary prospect. I’d rather have someone search my entire apartment than my phone.”

The KCCBA meets again on Nov. 29 at the Brooklyn Bar Association. Richard Michele will lecture that night on updates in the Court of Appeals. The Holiday Party will follow on Dec. 13 and on Jan. 24, 2019, the KCCBA will hold a ceremony to swear in new officers and directors.