I Always Feel Like Somebody's Texting Me

Folks, I  have been away from my desk at the Iowa Law Enforcement Reporter for a while but I promise that I will faithfully execute the duties of my office henceforth and forevermore til death do us part.

With that said, there are a couple of very interesting cases kicking around, both  of which are from outside the jurisdiction. I'll get to the other one later.

Cell phone text messaging has become commonplace but extracting the information and authenticating it so as to use it as evidence presents a number of problems for law enforcement.

In Commonwealth v. Koch, no 1669 MDA 2010 (Pa. Sup. Ct. 2011) a Pennsylvania case,  a defendant was convicted of possession with intent.The police had seized two cell phones, one of which belonged to Koch and one to her brother. The text messages extracted from the phone were transcribed and offered into evidence over timely objections. On appeal, Koch argued that the text messages were not properly authenticated, the author of the messages could not be determined, and were inadmissible hearsay.

The court first noted that under Pa. R. Evid. 901(a) to introduce evidence it must first be authenticated. This rule is similar to the Iowa rule. The proponent must introduce sufficient evidence that the matter is what it purports to be.Electronic writings typically show their source, and hence can be authenticated in the same way a written document can be. Police could not determine the source of drug related text messages, and some had been deleted.

The difficulty lies in establishing authorship, but text messages are sent from a phone bearing the number identified in the message. There was no evidence tending to show the defendant sent any of the messages. Thus, the defendant could not be identified as the source of the messages.

That led to the question of hearsay, which is an out of court statement offered in evidence to prove the truth of the matter asserted. In this case, the only relevance of the text messages was to show that they demonstrated intent to deliver. Because the defendant's authorship could not be identified they could not be admitted as a statement of a party opponent.

Iowa has not comprehensively addressed the matter. In State v. Simpson, 804 N.W.2d 314 (Iowa Ct. App. 2011). In this case Simpson attacked a text message on foundational matters, but the message was sent contemporaneously with the underlying criminal investigation, another person was present and saw the message as it was received,  and the victim confirmed that the message presented was the same message he had been sent. it was also the admission of a party opponent.

So where's this taking us? There's no doubt that text messages, even when inadmissible, are extremely relevant to an investigation. However, unless they can be reliably authenticated it is not good practice to bet the ranch on them from a prosecutions standpoint.

And we haven't even touched the issue of whether a warrant is needed to extract the contents of a cellphone, whether it's stored messages, contacts, locational data or whatever else can be gleaned from it. The conservative approach would be to err on the side of caution and obtain a warrant.