What strategies can defense lawyers use to challenge this new and invasive investigative technique?

In the digital age, law enforcement is savvy enough to pull information about your client’s online presence and use it against them. Getting this data and challenging it are skills every modern defense attorney needs. This webinar covers how social media evidence can and cannot be accessed, how it’s authenticated, and viable legal arguments to use and challenge it in your own cases.

To access this content, you will have to create an NACDL account and complete a short form. You will not have to purchase a membership. 

NACDL's Fourth Amendment Center offers direct assistance to defense lawyers handling cases involving new surveillance tools, technologies and tactics that infringe on the constitutional rights of people in America. The Center is available to help members of the defense bar in bringing new Fourth Amendment challenges.

 To request assistance or additional information, contact 4AC@nacdl.org.

Nearly every case involves a cell phone or an online account. Laws on device and account searches are continuing to evolve, as courts reconsider old doctrines that do not fit with the realities of the digital age. Below, find sample motions on suppressing emails, passcodes, and other electronically stored information.

​​​​Automatic License Plate Reader (ALPR) systems are getting more sophisticated and more accessible to police. ALPRs can gather information about people and their movements, but police also use them creatively: creating associations between vehicles and identifying “suspicious” travel patterns. 

This webinar from NACDL’s Fourth Amendment Center explores ALPR systems, the cases affecting law on open roads, and how to challenge this evidence in your own case.

To access this content, you will have to create an NACDL account and complete a short form. You will not have to purchase a membership. 

A cell phone’s location can be detected through cell site location information (CSLI) or global positioning system (GPS) data. CSLI refers to the information collected as a cell phone identifies its location to nearby cell towers.

NACDL’s top line recommendation on data-driven policing tools is that police departments must not utilize data-driven policing technologies because they are ineffective; lack scientific validity; create, replicate and exacerbate “self-perpetuating cycles of bias”; hyper-criminalize individuals, families, and communities of color; and divert resources and funds from communities that should be allocated towards social services and community-led public safety initiatives.

For attorneys representing criminal defendants, court decisions on search and seizure often seem to overwhelmingly favor the interests of law enforcement. This document compiles over 30 years of cases in which defendants and civil rights plaintiffs have prevailed. It hopes to provide raw material for criminal defense lawyers to fashion suppression motions, based on chronology and causation, that can enforce their clients’ rights against government overreach while supporting an expansive view of the Fourth Amendment’s protections. 

This comment from the Fourth Amendment Center addresses the National Institute of Standards and Technology's report "Digital Investigation Techniques: A Scientific Foundation Review."

NACDL comments to the Executive Office of the President Office of Science and Technology Policy responding to a request for information regarding the use of biometric technology.

Below are NACDL's comments on Executive Order 14074 on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety. The policing technologies at issue in the Executive Order create serious harms for individual criminal defendants, their lawyers, and the criminal legal system more broadly. In this comment, NACDL aims to highlight the serious dangers that these technologies pose and propose recommendations for mitigating those dangers.

Cell Site Simulators, also known as IMSI catchers or Stingrays, mimic cell towers and trick phones within their radius into communicating with them instead, during which they are able to collect information about the device. Using a cell site simualtor is a Fourth Amendment Search, sometimes conducted without a court order. This resource explains this technology works, their judical authorization, how to identify this evidence in a case, and how to challenge that evidence. 

 To identify suspects, law enforcement officers are turning increasingly to reverse search warrants, such as geofence warrants and keyword search warrants. These are searches used to find suspects and are not conducted to find evidence on a targeted individual. This trend presents novel challenges to the Fourth Amendment and privacy rights in the United States. 

Law enforcement agencies use facial recognition technology (FRT) to assist in identifying unknown people—suspects, victims, witnesses, and others—captured on video or in photos. It has become a widespread investigative tool, despite issues with reliability and inconsistencies in how it is used by law enforcement. The below document explains the technology in more detail and walks through some potential arguments for attorneys challenging facial recognition evidence in their cases. If you are looking for more information, or assistance with FRT in a case, contact us at 4ac@nacdl.org. 

The below primer is a fact sheet on Automatic License Plate Readers (ALPRs). This software can run on a wide variety of video streams and captures information about vehicles as they pass including the license plate number, make and model of the car, the time and location, and sometimes the occupants. The primer explains how law enforcement use this information and walks through some potential arguments for defense lawyers challenging this evidence in their cases.