Colorado’s High Country cops look to improve cellphone searching abilities
The short answer is never, unless you consent to a search or police obtain a warrant from a judge.
But that wasn’t always the case. Police in some jurisdictions were free to examine phones during an arrest until 2014, when the U.S. Supreme Court unanimously ruled in Riley v. California that the digital contents of a phone were protected from warrantless search.
“Modern cell phones are not just another technological convenience,” Chief Justice John Roberts wrote in the opinion of the Court. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
Silverthorne police officer Rich Watson is a fixture of sorts on the witness stand during felony trials in Summit County Court, but not because he makes arrests left and right.
For years, Watson, who is trained in cellphone and computer forensics, has been a local point man for extracting phone data that are increasingly key to filling gaps in complex criminal cases.
“What’s happened in the past decade is an explosion of cases where cellphones in particular were used to facilitate or commit a crime,” District Attorney Bruce Brown said. “More than half of felony cases that now go to trial will involve law enforcement extracting data.”
The Supreme Court has unanimously ruled that police can’t search a phone’s content during an arrest, but they can if they obtain a warrant from a judge. Later on in a case, phone data can be especially useful for corroborating police work or figuring out where investigators might have missed something.
“You have to have a reason to go in there, and it’s one big piece of a massive puzzle,” Silverthorne Police Chief John Minor said. “These phones usually just put a pretty bow on a case.”
The catch is that even a basic smartphone password is next to impossible to crack without specialized equipment and people trained to use it (or some extraordinary guessing luck). A quality extraction can also reveal far more data than what’s displayed on the screen, including deleted messages or remotely wiped data.
Colorado’s Fifth Judicial District, which covers Clear Creek, Eagle, Lake and Summit counties, has a piecemeal network of phone extraction equipment and technicians, but Brown is leading a push to better coordinate those resources in the hope that more of the work can be done locally rather than outsourced to other jurisdictions.
“The challenge is, we don’t have a robust, freestanding lab in the Fifth Judicial District to extract evidence,” Brown said.
Not all phone-cracking systems are created equal, and some can only extract partial data from certain phones — or none at all. So while there might be multiple systems at different police departments across the district, it’s not that helpful if they aren’t coordinating.
“If you use the wrong system for a phone, it’s kind of like taking a Subaru to a Mercedez dealership,” Brown said. “They will know a lot about cars, but that doesn’t necessarily mean they’ll be able to fix yours.”
Without a robust network of systems, the Fifth sometimes has to send phones to far-flung labs for analysis, which costs time and money.
That was the case during a recent felony sexual assault investigation, where several phones found during a search of a suspect’s home couldn’t be cracked in Silverthorne. They were sent to Utah for analysis, and after several months, local cops were able to use evidence on them to identify four suspects.
During the October trial of the first suspect, Paul Garvin, who was convicted, prosecutors had to call in an expert witness from out of state to explain to the jury how the phone data was extracted.
“Flying an expert in from Utah is a huge undertaking and is very expensive,” Brown said. “That expense is currently being borne by the taxpayers of Summit County.”
Recently, Summit County law enforcement got its second piece of phone-cracking equipment at the Dillon Police Department, which now has a different type of system from Silverthorne’s up and running.
Since phone extraction equipment has become a cottage industry with different capabilities and weaknesses across systems, it’s helpful to have multiple types available, Minor said.
“The thing with these systems is it’s good to cross-reference them just to see what both will do,” Minor explained. “Each one has different capabilities. Some are user-friendly, some you need to be a rocket scientist.”
Brown said that the Breckenridge Police Department is working on getting a phone forensic lab up and running that would have even more capabilities than Silverthorne and Dillon, pending the receipt of some federal grant money and training for an officer to use it. He said the district was hopeful that it could be up and running by next year.
“Instead of spending half a day driving down to Denver or shipping out a phone to a different state, officers could walk downstairs or drive just across the county, hand over the phone and come back the next day,” Brown said. “That could really increase the number of cases where we will get that phone evidence.”
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