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Police Blotter: Armed robbers nabbed through text messages

Court doesn't agree with armed-robbery defendants, who say police need a judge-signed court order to obtain archived text messages.

Police Blotter is a weekly CNET report on the intersection of technology and the law.

What: Armed-robbery defendants object to the use of their text messages as evidence in their criminal trials.

When: U.S. 9th Circuit Court of Appeals rules on February 12.

Outcome: Convictions upheld.

What happened, according to court documents:
Two men convicted of armed robbery made the mistake of using text messages--which their wireless provider turned over to police when asked.

Derrick McCreary and his co-defendant, Jonathan Hunter, were accused of masterminding heists at credit unions, with one article in Credit Union Journal reporting that they made off with almost $300,000.

Prosecutors obtained the contents of the archived text messages by sending a grand jury subpoena to SkyTel. McCreary and Hunter were each convicted of one count of conspiracy, two counts of bank robbery, and two counts of using a firearm in a violent crime. They appealed.

This isn't the first time the Police Blotter has covered how telecommunications providers store copies of text messages--and how police have obtained them to use in criminal prosecutions.

An alleged cocaine dealer in the Washington, D.C., area had his SMS text messages used against him, as did a wire fraud defendant last year. They also popped up in the Kobe Bryant sex case and the trial involving the attempted murder of rapper 50 Cent.

Some of the ground rules remain unsettled, with defense attorneys frequently arguing that privacy laws and the U.S. Constitution's Fourth Amendment suggest that archived text messages should be--legally speaking--difficult to obtain. Police, on the other hand, believe that they should be much easier to obtain.

In last year's wire fraud case, defense attorneys said prosecutors should have requested a proper search warrant signed by a judge. They lost, with the judge saying only a subpoena signed by a prosecutor was needed.

In the current armed-robbery case, McCreary, one of the defendants, asked the district court judge in January 2005 to suppress the text messages obtained from SkyTel on the grounds that the subpoena violated the Fourth Amendment and the Stored Communications Act. Hunter joined that motion. (SkyTel sells pagers and two-way messaging devices.)

In May 2005, U.S. District Judge Frederick J. Martone denied that request. Earlier this month, so did the 9th Circuit, which concluded that the evidence against McCreary was so overwhelming, it wasn't even going to bother worrying about text messages.

Hunter, the other armed-robbery defendant in the same proceeding, claimed that the text messages were improperly authenticated and that the full contents, rather than a summary, should have been admitted as evidence. The 9th Circuit rejected his argument as well.

Excerpts from the 9th Circuit's decision in U.S. v. McCreary:
The investigation of the two robberies revealed that McCreary and his co-defendant, Jonathan Hunter, communicated by text messages in planning the two robberies. The government had a grand-jury subpoena issued to the service provider, MCI/SkyTel, seeking the toll records, including the text of the messages.

McCreary contends that he had a reasonable expectation of privacy in these messages and that the acquisition of these messages by a grand-jury subpoena without a search warrant violated his rights under the Fourth Amendment. He contends that to the extent 18 U.S.C. Section 2703 of the Stored Communications Act authorized obtaining the text messages without probable cause and a search warrant, it violated his Fourth Amendment rights.

We do not reach this contention because we conclude that any error in admission of the text messages was harmless. The government presented overwhelming separate, independent evidence of McCreary's guilt. The government presented the testimony of two of the co-conspirators, who participated in the robberies detailing McCreary's leadership in planning the robberies, providing clothes and guns, and giving instructions as to how the robberies were to be conducted and the getaway to be achieved. McCreary's participation was also corroborated by other substantial evidence.

Excerpts from the 9th Circuit's decision in U.S. v. Hunter:
Hunter claims that the text message testimony was improperly authenticated and that the text messages were improperly admitted because only summarized excerpts were admitted. However, these claims lack merit.

"A document can be authenticated by the testimony of a witness with knowledge." United States v. Workinger. Here, the government properly authenticated the text messages by using the testimonies of the senior manager of the pagers' service provider, the FBI agent who compiled the records, and Hunter's co-conspirators.

Excerpts of a compilation of evidence are admissible. United States v. Soulard, 730 F.2d 1292, 1300-01 (9th Cir.1984) (holding that a summary chart of evidence was properly admitted). If the defendant objects to the summary of the evidence, he cannot have the evidence excluded, but instead can compel the government to introduce the rest of the incomplete evidence. Id. at 1301. Therefore, the court properly admitted the excerpts of text messages.