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How Can Prosecutors Prove a Smart Phone Belongs to a Defendant?

Today most of us carry smart phones that contain a wealth of personal information. Some of that information may be seized and used as evidence against a defendant in a criminal trial. So, what is the proper procedure for tying a particular phone–or a message sent from a phone–to a defendant?

Court of Special Appeals Upholds Drug Conviction Based Partly on Text Message Evidence

The Maryland Court of Special Appeals recently addressed this subject in a drug case, Sykes v. State, where the defendant’s phone proved to be a crucial piece of evidence. This case began when a police officer observed a vehicle with a malfunctioning taillight. The officer proceeded to initiate a traffic stop.

There were two people in the vehicle. The defendant in this case was the passenger. After observing the driver’s behavior, the officer called for a drug-sniffing police dog. The dog subsequently alerted the officer to the presence of illegal narcotics. In fact, there were 84 packets of drugs seized during a follow-up search.

The officer placed the defendant and the driver under arrest. The officer then said he observed the defendant “remove a Samsung smart phone from his pocket, unlock it, place a call, and talk on the phone.” The police later seized the phone and obtained a warrant to search its contents.

At the defendant’s trial, prosecutors introduced a number of text messages recovered during the search of the phone. The defense objected on a number of grounds, including the state’s failure to demonstrate authenticity–i.e., lack of proof the defendant owned the phone–and that any text messages contained were inadmissible hearsay. The trial judge overruled the objections. A jury found the defendant guilty of possession with intent to distribute. The trial court then imposed an 18-year prison sentence.

On appeal, the defendant renewed his objection to the admission of the text messages taken from the phone. The Court of Special Appeals saw no error, however, and affirmed the jury’s verdict. The appellate court said the text messages were “properly authenticated” by the police officer’s testimony that he personally observed the defendant unlocking and using the phone to make a call. Under Maryland law, the standard for authenticating electronic evidence was whether or not a “reasonable juror” could find “by a preponderance of the evidence” that the phone belonged to the defendant. That standard was met. The prosecution was not actually required to produce direct evidence of the defendant’s ownership of the phone.

As for hearsay, the Court of Special Appeals said the text messages used at trial were not introduced to prove the truth of the statements made by the text messages. Rather, they were used to show the defendant had made an “offer to purchase” illegal drugs, which had “independent legal significance” and was therefore admissible.

Contact St. Mary’s County, Maryland, Criminal Defense Lawyer Robert Castro Today

This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 705-5137.