Archive for the ‘Law & Technology’ Category

Now you can read the snarky opinions of a criminal defense lawyer – on the go.  Introducing the Graham Lawyer Blog phone app!  If you have a Nokia phone, you can download it here.  For those of you who use an iPhone, I am still working on that application.  We are coming up on the 2 year anniversary of Graham Lawyer Blog.  People more than ever are using the internet with their mobile devices.  Statistics show that 40% of adults in the U.S. surf the web with their mobile devices, and that statistic is only likely to increase.

Let me know if there are any bugs in the programming for the application.  It is still experimental.  It was made on Ovi.com.  I am working on edited or abbreviated versions of the blog posts that can be read online.  Some of my blogs posts have been over 2000 words.  If you have an idea for a blog post, email me.  I am always looking for new topics for consideration on the subject of local goings on and criminal law type stories.  Thanks for reading and visiting my blog.

I had an intern from one of the local high schools work at my office last year. The intern, Kyle Nicholson, seemed pretty interested in forensic science, but I started him off kind of slow. The first assignment was to accompany me at a jury trial on a trespass charge. Slowly he worked up to more serious matters that involved more forensic science. Kyle accompanied me out of town on a first degree murder charge I was hired to defend. The intern joined me about halfway through the trial, and I put him up in a room next to me in an inexpensive motel near the courthouse. As we ate some breakfast cereal, we looked at crime lab reports, and I thought to myself that this had to be the oddest high school internship ever.
Kyle Nicholson has since graduated from high school and is now in college working toward a degree in forensic science at Chaminade University in Hawaii. After I heard from him the other day, I checked out the website for the school’s forensic science program. The director of the forensic science department is Dr M. Lee Goff, who is a leading forensic expert, and also serves as a consultant to the T.V. show C.S.I. Check out this video explaining the forensic science program at Chaminade:

In my practice as a criminal defense lawyer, I come across most of those scientific disciplines that Dr. Goff describes. Dr. Goff is a leading expert on forensic entomology. Forensic entomology is the study of insects, particularly those insect that inhabit human remains, and the insects can tell us about information about the time, location, and manner of death. It is a pretty narrow field, and there are only fifteen forensic entomologists certified by the American Board of Forensic Entomology. One of the issues that can come up with forensic entomology is the fact that insects can walk through blood and track the blood to areas near the crime scene. This can interfere with the interpretation of blood spatter. One of the issues that I encountered in one of the murder cases that I have done is how insect bites can be misinterpreted by police detectives.  Flies and maggots are attracted to locations of the human body where blood is exposed, and postmortem insect activity can cause skin lesions that can resemble powder stippling, and thus lead in investigator to believe that a gun shot was fired at close range.

See an earlier post by me on The Study of Forensic Science in High School.

The other day, I posted 6 pictures on Twitter and challenged people to tell which pictures were of Arizona and which depicted the arid lands of North Central Washington. The correct answer came quickly from a lawyer in Chicago.  At first, I wasn’t sure how a resident of Chicago would recognize the local topography so well.   But later he admitted that he answered the question by downloading the pictures to his computer and examining the “metadata” of the photographs, which contained the GPS location and the longitude and latitude of my iPhone when I took the picture. The questions arose: what are the dangers of sharing your precise location on the internet?

Although there doesn’t seem to be any documented cases yet of criminals using geo-location, the subject has been discussed quite a bit online. Last month the U. C. Berkeley Computer Science Gazette discussed such a problem, and the writers discovered that quite a number of photographs of items for sale that were posted on Craigslist contained geo-tags. For those of you unfamiliar with geotagging, it is a digital camera feature that lets you embed GPS coordinates in a digital picture file to mark where it was taken.

The concept is popular for vacation photographs because you can quickly identify precisely where the photograph was taken.  As you can see from the image at the right, the metadata of a digital photograph reveals quite a bit.  So in what ways might criminals take advantage of this feature?  What if you took a photograph of expensive jewelry and posted the pictures online?  Could a would-be burglar then examine the metadata to determine where exactly the jewelry was?  I suppose this is possible, but it doesn’t surprise me that there really hasn’t been such a rash of such cases.  Mostly the social media crime stories that you see are instances of Facebook users having their homes burglarized after announcing to 300 of their “friends” that they will be out of town on vacation.

Maybe its the former prosecutor in me, but I really anticipate that the metadata of photographs will be used much more by law enforcement.  For example, take your average Facebook page of someone in their late teens.  How many photographs would you see of the 19 or 20-year-old with alcohol?  Until now, the police could never prove “when” or “where” a photograph was taken, and these are essential jurisdictional elements that are a necessary to bring charges.  But aren’t these two questions conclusively answered by a photograph’s metadata as depicted above?  Before I set any teenage readers into a panic, I should mention that I put this theory to a test.

I downloaded a few such photographs from Facebook, and attempted to analyze the metadata for location and date.  However, I wasn’t able to recover such information.  At first, I assumed that the photographs were taken by older digital cameras with no geotag capabilities.  However, no such metadata was even recoverable from Facebook “mobile upload” pictures that were clearly taken with iPhones. Even when I uploaded geotagged pictures that I had taken myself, I still could not recover date and location information.  I then emailed Facebook, and they informed me that such metadata was automatically “stripped” from all photographs once they appear on Facebook.  I then asked Facebook if that data would be recoverable from them by law enforcement subpoena.  I have not heard back yet.  I never tested this out with Myspace.  It could be that they strip such metadata too.  But if Facebook protects a user’s “geo-location”, how come Twitter and Craigslist do no also do so?

What do you think?  Will those seeking to commit crimes use such technologies in the future?  In what ways could such technology be abused?

For past blog posts about technology and the law see here, here, here, here, here, and finally here.

Facebook? Twitter? Youtube? Blogs? These typical tools of social networking and internet marketing are beginning to be used to find missing persons. For example, take a look at the search for Owen Kiernan Rooney. The story of Owen Kiernan Rooney was mentioned on @Miramou on Twitter, also on YouTube.

His sister Kelly and other family members are using the social network sites to look for info on their missing brother. Owen Rooney is missing, and was last seen just across the border in Grand Forks.

The story of his disappearance has since been told on blogs, YouTube, Twitter, and Facebook. Like a lot of Australians, Owen Kiernan Rooney came to Canada to work at the ski resort Big White near Kelowna. (Where I sometimes ski). Mr. Rooney was the victim of an assault and later checked in to the hospital in Grand Forks, but later he left the facility unexpectedly. For more details on the circumstance, see the post on the site Shelter Offshore. If you live in the U.S. border counties like Okanogan, Ferry, Stevens, and Pend Orielle, please continue to look out for this young man in his prime. In my work as a criminal defense lawyer, I have often seen clients or their friends of family disappear. I have assisted them in a small way with some pretty basic computer searches. But nothing is better than the tireless dedication of family members. And we have certainly seen the hard work of Owen Rooney’s family. We wish them the best. I have often seen such work pay off.
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The City of Seattle released a new page on their website that maps crime locations.  See site.  It looks like a mashup of Google Earth and a sex offender map that the King County S.O. provides.   But in this database multiple crimes are listed at the address that they occurred.  In addition, you can click the link to the individual icon to see a copy of a corresponding police report.

According to the Seattle Police Department press release, the site was developed to provide access to crime information that people were asking about, and also to further the department’s goal of transparency.   The new site is so popular that the site crashed due to the number of visitors.  The site is interesting, and everyone can see the crimes in their neighborhood, but it is hard to see what the real practical purpose of the site is.  My older son goes to college in Seattle, and when I ran the crime stats in his Belltown neighborhood for the last 30 days, I did see that a man was shot to death a block away from my son’s apartment.  Under the city’s monopoly-like icon system, a homicide is represented by a black figure lying prone with a red background.   As a criminal defense lawyer, I can’t really think of much of a practical purpose this site would have for my practice.  The press release did not mention how much this new site cost, or how expensive it is to maintain.  I do know that Seattle has had a budget deficit, and was contemplating layoffs last year.   Under the city’s icon system, each type of crime has its own symbol.  The only crime that does not seem to be listed are sex crimes.   This was done to protect the identity of the victim.   You have to wonder a little about how this would affect the real estate market in Seattle.  Are prospective home buyers going to consult this map?  Particularly when a viewer zooms out, Seattle does seem to have a lot of crime.  I have got to believe that the biggest fans of this site are going to be amateur sleuths who will study the map with an OCD-type fixation on patterns of crimes.  Remember the Green River Killer and how many people followed that case and “assisted” in the investigation?  If you click the icon on this new map, it is amazing how much data is in the online version of the police report.  Below is a copy of the report pertaining to the most recent shooting in Belltown. (Click on the image for better resolution)
  

What do you think of this new site?

Think about the last time you received a traffic ticket.  The officer writes down your name and address, vehicle information, and then he or she signs the ticket, right?  Well, when a traffic camera catches you driving through a red light, it works a little bit differently.  The officer reviews the photos at a computer terminal and “signs” the tickets electronically, simply by pushing a button.  The ticket is then printed out in another state, and it is mailed to you and the court.  Attorney John Clark of Spokane is challenging this process; he points to the law that requires an officer’s “signature” on each ticket.  See article.   Does a computer generated signature count?  How many of you have signed a check or signed a rental agreement with a computer generated signature?  Probably not many.  However, my guess is that the court will uphold the legality of these computer-generated signatures.  While we typically think of a signature as a person writing their own name, usually in cursive, a signature can take many forms.   According to Black’s Law Dictionary, 5th edition, “A signature may be written by hand, printed, stamped, typewritten, engraved, photographed or cut from one instrument and attached to another…And whatever mark, symbol, or device one may choose to employ as representative of himself is sufficient.”  Additionally, while it may not be widely known, the “electronic signature” is actually becoming more and more common.  It is not like the police invented this practice.   Last year, when I borrowed money for my older son’s college tuition, I “signed” the master promissory note online with an electronic signature.  I guess we will see how the court rules on this whole thing.

Speaking of red light tickets in Spokane, I saw last week a photoshield on a license plate.  A photoshield is a clear plastic cover a person buys to put over their license plate to prevent a red light camera from reading their plate.  The cover is transparent but creates glare for the traffic camera.  The same glare effect can also be created by a spray-on can.  These devices have already been outlawed in some states, such as Pennsylvania, but are still apparently legal here in Spokane.  We will see how long that lasts.   Below is a video from Tech TV on the subject.   As an attorney, I would advise people to avoid these products.  Let’s say you use this product on your car, and you do actually injure someone in a traffic accident.  How is it going to look to a judge or jury when the state trooper testifies about the covering to your license plate?  There is a special term we use in the law to describe a plan, formed in advance, to break the law.  The term is “premeditation.”

For previous stories on the intersection of technology and the law, see Drones and Privacy, C.S.I. High, Taser Cams, Robbery on Video, & Twitter and Public Meetings.

I was looking at the Spring/Summer issue of Mac|Life this week, and was a little blown away at the announcement that private drones would soon be available to “surveil you’re enemies from above.”   If you ever tried an old remote-control helicopter, you know that they are shaky and unreliable, and often crash.  This new flying machine is a quadricopter (four rotors), and comes equipped with two video cameras.  You control the drone with your iphone, and it streams the video back to your screen.  Check out this YouTube clip for an idea of how it works:

You have to wonder about the writers at Mac|Life who suggested that this invention is the “best app ever”.  Mac|Life’s adoring “review” of this product has no thoughtful discussion of its potential for abuse.  It is one thing to understand theoretically that the C.I.A. can read a license plate off of your car, or to know that Google Earth has a grainy photo of your backyard online.  But it is another thing entirely for the geeky neighbor kid to be flying this around outside your second story window.  It is one thing to be “watched” from above, and another thing to be watched from all sides.

I remember in law school learning about the legal principle that states that a property owner owns his or her parcel all the way from the center of the earth up to the heavens.  I looked this principle up again today, and the notion dates back to William Blackstone, who in 1766 wrote  it in Latin: “Cuius est solum, eius est usque ad caelum et ad inferos.”  So is it trespassing to fly this over your neighbors house and spy on him?  As with most laws in Washington, the RCW code takes a while to catch up on new technology.  Example:  In July 21st, 2000, a perv named Richard Sorrells ran around Seattle Center with a mini-video recorder in his hand that he pointed up girls skirts.  He was arrested, but he beat the charges because he never actually touched the girls, and there was no law that prohibited such filming.    Well, it took about three years, but the slow-pokes in our state legislature finally figured out video cameras were now smaller than a Super 8 mm.  On May 12th, 2003 the legislature enacted RCW 9A.44.115 which made such filming a felony.  How long will it take for the legislature to prohibit someone from buzzing a drone through your yard while you are having a barbecue?

Would it be permissible for the police to fly a drone over your garden to look for marijuana plants growing?  It will be interesting to see how how this develops.   Basically, under Washington law, the police are allowed to fly over your house and look for marijuana gardens.  The State Supreme Court ruled in State v. Wilson (1999) that such a flight does not invade a persons privacy as long as the planes comply with the FAA rule that fixed-wing aircraft remain at an altitude of 500 feet.   Currently, the only marijuana-spotting drones in use by law enforcement in the U.S. are in Northern California.  There, the Forest Service uses drones to look for large marijuana gardens on public lands.  Under law, an individual has a lesser expectation of privacy while on public land, than at his home.  In Europe however, the police have begun to use drones to fly-over and observe activities on private property.   The police in the U.K. used a drone to catch a car thief, before being told such use was not allowed without a permit by the UK’s Civil Aviation Authority.  See story.  In the Netherlands, the police have begun using drones to look for marijuana grows.  See video:

Is it just me or is this drone technology pretty scary? Where are we going to be in 5 or 10 years on this issue? What do you think?

In the last ten years, police in Washington State have paid a lot more attention to the problem of drugged drivers.  A rookie cop can detect a driver who has drank too much alcohol, but it takes a little training and experience to determine if a driver has been using controlled substances such as cocaine, methamphetamine, marijuana or prescription pills.   After completing certain training, an officer can become a Drug Recognition Expert or “DRE”.   We have many such DRE’s here in Washington, especially in Spokane.  The problem is that people are catching on that the so-called drug recognition “experts” really are basing their opinions on many things we do not really recognize as science.  Take for example, the green tongue phenomenon.  The National Highway Traffic Safety Administration warns of the following characteristics of a marijuana DUI: “… characteristic indicators may include odor of marijuana in car or on subject’s breath, marijuana debris in mouth, green coating of tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on field sobriety tests.”  Criminal defense lawyers are not the only ones questioning the validity of this “green tongue” thing.  The Washington Court of Appeals also questioned whether a green tongue establishes probable cause for anything.  The court agreed with the defense lawyer that no probable cause existed, explaining:

Trooper Lane contends that a green tongue is indicative of recent marijuana use. Even assuming he is correct, the absence of any other indicators of recent marijuana usage, combined with the many innocuous ways to get a green tongue, indicate a lack of reasonable suspicion.  Although we assume the officer’s assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion’s fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two.

To you non-lawyers out there, that is the Court of Appeals basically politely telling the Washington State Patrol DRE’s that they are full of baloney.  These “experts” are often very well-trained and seemingly professional, and can be very convincing to jurors.  I defended a drug DUI one time where a DRE from Okanogan County claimed he had probable cause to believe that the driver was under the influence of marijuana.  The DRE wrote in his report:

“He had raised taste buds on the back of his tongue with a green coating on his tongue.  His lips were burnt and crusty on top and bottom lips.  … His thumb and index fingers of both hands were discolored.  The discoloration on his fingers and lips was consistent with holding hot smoking pipes.”

This seemed a little fishy to me, and I eagerly awaited the toxicological report on the blood test.  The results indicated that there was absolutely no marijuana (even in trace amounts) in this driver’s blood.  Instead there was methadone found in the drivers blood, just as it was found in his car.

Is there any system of accountability for the DRE’s out there?  Is anyone keeping track of all the times the DRE’s got it wrong?   The Supreme Court in Utah is also catching on.  In a court opinion State v. Hechtle, they explained:

We are troubled by the trooper’s reliance on the appearance of Hechtle’s tongue as dispositive proof of marijuana use. Even if we were persuaded to accept the State’s position that the condition of Hechtle’s eyes and tongue are presumptively suggestive of marijuana use, nothing in the record indicates either how long these conditions are sustained or how long measurable quantities of marijuana remains in the system as required by the statute.

So, I guess in some sense, the system is working – courts are catching on.  But on the other hand, what other aspects of DRE “science” are slipping past us all?

Will police officers really agree to wearing video cameras?  I read in the business section of the Spokesman-Review last week that the company Taser International has introduced a new line of cameras for police officers.   Taser International, Inc. is, of course, best known for Taser guns, and has sold millions of such instruments for police officers world wide.  However, my guess is that these new cameras for police officers will be go over like a ton of bricks.  The article in the Spokesman explains:

Eighteen of San Jose’s more than 1,300 sworn officers have been trained to use the AXON head cameras as part of a free trial. Other departments are expected to be added to the program.  In San Jose, officers are required to switch on the cameras for even routine investigations, such as vehicle stops.  …  “People have been using (this technology) against us for years, unfortunately only for the bad stuff,” [Officer] Pender said. “So it’d be nice to show our view and our side of what’s going on.” In San Jose, officers are required to switch on the cameras for even routine investigations, such as vehicle stops. At the end of an officer’s shift, the device is placed in a docking station, where it recharges and its content is downloaded and stored on a secure server off site.

The truth is that these sort of cameras are not very popular with police officers or their departments.  As you can see from the photo above, the camera wraps around the ear and sits over the officer’s shoulder.   So it is like literally having someone looking over your shoulder.  And “that someone” is the top brass, the defense lawyers, the tort lawyers, the ACLU, the media, and the general public once the footage gets on TV.  Video evidence provides powerful graphic images that a jury can later see.  It is one thing for a witness or victim of police abuse to say what occurred, but another thing entirely for disturbing video footage to be presented.   While it is widely assumed that having a camera rolling would mean that the police would be on their best behavior, this is not the case.  Often times the officer subjectively believes he or she is acting appropriately at the time, but the video often show otherwise.  Youtube is full of videos of police officers improperly handling suspects while a dash cam is rolling.

Police officers generally don’t like to be recorded.   In the case of State v. Flora, a police officer went so far as to arrest a man who secretly audio-recorded him speaking.  The Washington State Court of Appeals held that the suspect was entitled to make such a recording due to the public nature of the encounter.  Can people really imagine the police of Spokane County, Grant County, Stevens County etc. wearing these things?

Although the salespeople with Taser Internations are trying to market the recording equipment as popular with police, it is not the police who will like them.  Until now, the greatest proponents of requiring the police to record suspect contacts have been civil libertarians.  See support from National Association of Criminal Defense Lawyers, The Justice Project, and ACLU.  The other proponents of requiring the recordings are defense lawyer bloggers.  See blog posts: Grits for Breakfast, FloridaJustice.com, and Law and More.

The ACLU for years has been critical of the Taser gun (see here).  Does anyone else see the irony of Taser Inc. trying to make a buck off something the ACLU supports?

The Ninth Circuit Court of Appeals just greatly limited the use of the Taser gun last week. (See here).  Since I read about this new line of Taser products in the business section of the newspaper, let me offer this financial advice:  The Taser cam won’t sell.  Now is the time to dump your Taser stock.