1. Contents and metadata

Drug Induced Homicide Defense Toolkit

practical considerations that arise when evidence from cell phones is used during the

course of drug-induced homicide enforcement. As the applicable legal protections vary

based on the type of information sought by law enforcement,228 this section is divided up

into three parts: one dealing with contents of communications and related metadata, one

dealing with location information, and one dealing with information from the mobile

applications ecosystem.

1. Contents and metadata

First and foremost, cell phones are a rich source of information regarding an

individual’s communications. Communication records obtained from an individual’s cell

phone may include both the content of an individual’s communications229 and information

about an individual’s communications (also known as "metadata").230 In DIH

investigations, prosecutors are keen to access communication information. The National

District Attorneys Association's white paper on the opioid crisis addresses this desire:

Of particular importance in the homicide investigation of a fatal overdose is the individual’s cell phone. In many instances, a user will engage in a series of calls and/or texts with the drug dealer shortly before death to arrange the purchase of

228 Ben Brown & Kevin Buckler, Pondering personal privacy: a pragmatic approach to the Fourth Amendment protection of privacy in the information age, 20 Contemp. Just. Rev. 227 (2017).

229 Saved text messages are an example of the contents of an individual’s communication that can be retrieved from their phone.

230 Phone call metadata can include the identity of the caller and recipient, time of the call, and duration of the call.

Version Date July 2021 – Check https://ssrn.com/abstract=3265510 for most current edition

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Drug Induced Homicide Defense Toolkit

the fatal dose of product. It’s important as part of the investigative process to seek the proper legal process to obtain subscriber information that can provide valuable intelligence to pursue a case. Obtaining phone records can take time and are sometimes difficult to pursue, but it can be one of the most critical parts of an investigation and can hold key evidence to successfully pursue a drug delivery in death statute case.231

Under federal law, law enforcement must obtain a warrant based on probable cause

prior to accessing the contents of stored communications without notice or consent.232

While, on its face, federal law distinguishes between contents of communications held in

storage for 180 days or less (for which a warrant is always required)233 and contents of

communications held in storage for more than 180 days (which could be obtained with a

subpoena),234 it is now general practice to obtain a warrant regardless of the age of the

communication as there is “no principled basis to treat email less than 180 days old

differently from email more than 180 days old.”235 In contrast, federal law allows law

enforcement to obtain a customer’s name and “local and long distance telephone

231 NDAA, The Opioid Epidemic: A State and Local Prosecutor Response at 9.

232 18 U.S.C. § 2703 (a)-(c) (2018).

233 18 U.S.C. § 2703 (a) (2018).

234 18 U.S.C. § 2703 (b) (2018).

235 Department of Justice, Acting Assistant Attorney General Elana Tyrangiel Testifies Before the U.S. House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations (2013), https://www.justice.gov/opa/speech/acting-assistant-attorney-general-elana-tyrangiel-testifies-us-house-judi ciary.

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Disclaimer: All content is provided for informational purposes only and does not constitute legal advice