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Text Messages and Cell Tower Evidence Admissibility Issues (Thursday, July 5, 2018)

Getting electronic evidence admitted isn’t the intimidating process many lawyers found it to be a decade ago. Two recent Illinois criminal cases discuss a couple of wrinkles and some different technology.

Following a bench trial, Eric Ziemba was found guilty of involuntary sexual servitude of a minor, traveling to meet a minor, and grooming.

He walked into a sting.

This advertisement was placed online by an officer from the Aurora, Illinois Police Department as part of an undercover sting operation conducted with the assistance of special agents from the United States Department of Homeland Security:

“*******Sweet and juicy CHERRY waiting to be picked**** - 18

Its sooooo cold!!!! Come warm up with a very young and eager co-ed waiting to please and fulfill your every desire. I’m a sexy brunette down for what ever you please. Text at [number omitted]. Gentlemen only..I;m [sic] waiting for you.

Available all day..$150/h.. 100/hh
Poster’s age: 18”
 
Ziemba responded to the advertisement via text message, and a number of texts were exchanged, leading to an encounter.
 
Ziemba entered the designated hotel room and encountered Melissa Siffermann, a special agent with DHS, who was posing as the mother offering her two daughters for sex. Ziemba paid her $150 and was arrested.
 
Geoffrey Howard, a special agent with DHS, testified that DHS entered into a partnership with the Aurora Police Department to target individuals involved in the sex trafficking of children. On December 2, 2014, they were conducting an operation out of two adjoining rooms in an Aurora hotel. One of the rooms was used as the meeting room for the target and the undercover officer. The other was considered the control room, where several officers would correspond via text messages with individuals responding to the online ad.
 
Howard testified that, on the day in question, the ad was posted on an escort service webpage called “Backpage.com.” Howard testified that the officers used a computer program called Law Enforcement Telecommunication System (“LETS),” which allowed them to respond to incoming texts via computer rather than phone. The program allowed more than one officer to respond to more than one individual using the number placed in the online ad. The program created a record of the incoming and outgoing messages.
 
Erik Swastek, an officer with the Aurora Police Department, testified that he was the lead investigator in the operation. He prepared the ad that was placed on Backpage.com. He stated that, if an ad included an age younger than 18, the ad would not post. However, he learned from known prostitutes that people trying to find juveniles on Backpage.com looked for people posting as 18-year-olds. Swastek testified that the phone number used was a “spoof number.” when someone responded to the ad, the text message would go to a computer in the control room. Swastek would then assign the number to an officer who would then be responsible for communicating with that person. On December 2, 2014, there were four or five “texters” working in the control room.
 
Swastek testified that the text message conversations were preserved on a server through the LETS system. The conversations could be downloaded and printed. There was no way for anyone to change or manipulate conversations on the server, Swastek identified as the printout of the text conversation with Ziemba from the LETS program.
 
Swastek testified further that, after Ziemba was arrested, he took Ziemba’s phone and placed it in a bag. Swastek hooked the phone up to a Cellebrite Touch Universal Forensic Extraction Device and extracted all the data on the phone. Cellebrite downloads a phone’s data to a computer.
 
Swastek identified as a printout of the text messages from the Cellebrite extraction and testified that People’s exhibit No. 5 was a printout of the Cellebrite extraction of the entire contents of the phone.
 
Sergeant Dean testified that he was assigned to respond to the texts coming in from Ziemba. He responded using his laptop, and the text conversation was recorded through a system on his laptop. Dean testified that he was later able to examine the contents of the recorded conversation and determine that it was recorded accurately.
 
On appeal, Ziemba argued that the trial court erred in admitting people’s exhibit No, 2, the transcript of the text messages compiled by the LETS program. The appeals court was not persuaded.
 
As to a proper foundation for admission, text messages are treated like any other form of documentary evidence. A proper foundation is laid for the admission of documentary evidence when the document has been identified and authenticated. Authentication of a document requires the proponent to present evidence that the document is what the proponent claims it to be.
 
The proponent need prove only a rational basis upon which the fact finder can conclude that the document did in fact belong to or was authored by the party alleged.
 
Documentary evidence, such as a text message, may be authenticated by either direct or circumstantial evidence. Circumstantial evidence of authenticity includes such factors as appearance, contents, substance, and distinctive characteristics, which are to be considered with the surrounding circumstances. Documentary evidence, therefore, may be authenticated by its contents if it is shown to contain information that would be known only by the alleged author of the document or, at the very least, by a small group of people including the alleged author.
 
There was both direct and circumstantial evidence that the text transcript was what the State claimed it to be. Dean was the undercover officer who personally sent and received the text messages contained in People’s exhibit No. 2. Dean testified that People’s exhibit No. 2 was a transcript of the entire conversation between himself and Ziemba and affirmed that it had been recorded accurately, Swastek testified that he took Ziemba’s phone after he was arrested. Ziemba gave the officers his phone number, and it matched the number that Dean had been texting, Swastek further testified that he confirmed, line by line, that the text messages on the phone matched the text messages on the computer, in addition, Ziemba was told in the text messages to knock on a certain hotel room door, and he did so. When he entered the room, Ziemba confirmed with Siffermann that he wanted the full hour and was “okay with the rate”. In addition to Dean’s and Swastek’s testimony, Ziemba himself testified that People’s exhibit No. 2 was a true and accurate representation of the text messages between himself and Dean. Based on the foregoing, the court of appeals found no abuse of discretion.
 
Ziemba seemed to suggest, without expressly stating, that the text message transcript needed to be authenticated as a computer-generated record. For instance, he argued that neither Dean nor Swastek was trained to use the LETS program. He further argued that no one testified how the program worked, where the data was stored, or how the program compiled the data. However, Ziemba cited no authority to support the argument that the transcript should be treated as a computer-generated record.
 
In any event, as the state pointed out, computer-generated records are the spontaneously created tangible results of the internal electrical and mechanical operations of a computer itself, which are not dependent upon the observations and reporting of a human declarant. Here, the transcript was dependent on the input of Dean and Ziemba. Thus, the appeals court agreed with the State that the transcript was not a computer-generated record. People of the State of Illinois v. Ziemba, 2018 IL App (2d) 170048.
 
The next case involved cell tower evidence. The case foundered on a basic problem—hearsay.
 
After a joint jury trial with co-defendant Saul Sandoval, Juan Ramos was convicted of armed robbery with a firearm.At trial, 71-year-old Francisco Vivas testified that on August 3, 2014, he went to Swap-O-Rama, a flea market located at 42nd street and Ashland Avenue in Chicago, to sell jewelry. Around 4:30 p.m., Vivas left and drove to the Berwyn Fruit Market, a grocery store on Harlem Avenue in Berwyn, Illinois. To travel to the Berwyn Fruit Market from Swap-O-Rama, Vivas took Ashland Avenue to Interstate 55 (I-55), exited I-55 at Harlem Avenue, and proceeded north on Harlem Avenue until reaching the destination. After completing that stop, Vivas drove to Kathleen Snyder's house in Riverside, Illinois, some 1.5 miles away from the Berwyn Fruit Market, to drop off some jewelry.
 
When Vivas arrived at Snyder’s house, two men approached him from behind and attacked him. One of the men pulled Vivas’s shirt over his head, and the other took his car keys, opened his car, and removed several bags containing gold jewelry. At that point, Snyder came outside and saw that Vivas was under attack, Vivas heard Snyder yelling and saw one of the men point a gun at her and tell her to “shut up."
 
Snyder testified that she saw Vivas pull into her driveway around 5:30 p.m. When she walked outside to greet him, she heard him saying "call the police" and saw a person beating Vivas’s head against one of her car’s tires. Snyder testified that the attackers had t-shirts covering their faces like masks, so that only their eyes and the middle portion of their faces were visible.
 
Two days later, Vivas and Snyder went to the police station to view a lineup, when the subjects were first presented, their faces were covered with t-shirts so that only their eyes and the middle portion of their faces were visible, similarly to how the attackers appeared during the robbery. However, Snyder told a police officer that one of the suspects had a goatee and asked that the suspects lower their masks. Snyder then saw that one of the men had a goatee. That man was Ramos, whom Snyder informed the police was the person she saw assaulting Vivas.
 
Snyder later identified Sandoval as the person who pulled a gun on her based on the fact that he had “goofy” eyes. Vivas did not make an identification because his head had been covered by his own shirt during much of the attack. However, on August 8, Vivas identified two pieces of jewelry-an earring and a bracelet-that the police recovered during their investigation which he claimed were taken during the robbery.
 
Detective James Lazansky testified that he was a detective with the Riverside, Illinois police department. As part of the robbery investigation, Detective Lazansky served a search warrant on the T-Mobile company, seeking historical cell site location data for the cell phones recovered from Ramos and Sandoval. Detective Lazansky explained to the jury that “cell tower location history is when you use your cell phone, it pings on a certain tower. So it could be within a short distance of where your phone is hitting.” He elaborated: “[w]herever you travel, you’re going to go from one tower to another tower to another tower, and your cell phone is going to ping on that certain tower in the area that you’re at.”
 
Lazansky then explained that in response to the warrant, “T-Mobile gave us a spreadsheet of all the latitudes and longitudes and dates and times of where the cell phone towers were hitting.”
 
On appeal, Ramos argued that Detective Lazansky’s testimony was testimonial hearsay because it was an embodiment of the T-Mobile report, which the State failed to authenticate as admissible hearsay pursuant to the business records exception. He thus concluded that the introduction of this evidence violated his sixth amendment right to confrontation.
 
Hearsay, of course, is an out-of-court statement offered to prove the truth of the matter asserted. At trial, Detective Lazansky told the jury that the information contained in the T-Mobile report “dictated the exact location of the Swap-O-Rama and followed the victim exactly how he showed us going down I-55. It kept pinging down I-55 to Harlem Avenue. It pinged at Harlem Avenue; and actually where the crime occurred, it also pinged there.” Detective Lazansky explained that the ping information existed in the form of latitude and longitude coordinates, and he explained that he arrived at his conclusion about the phone’s movements by plugging the “ping” information into Google Earth to create a map detailing how the phone traveled on August 3, 2014. While it was unclear whether this map was ever shown to the jury, translating the report’s raw coordinate data into points on a map was the keystone of Detective Lazansky’s testimony. Without the reports, there would be no coordinates; without the coordinates there would be nothing to plug into Google Earth and thus no map; and without a map he would have nothing tell the jury about where Sandoval’s phone traveled on August 3.
 
T-Mobile, which authored the document, was a declarant, and the data showing which towers Sandoval’s cell phone pinged, and at what times, was an out-of-court statement. The only reason Detective Lazansky conveyed this information to the jury was for its truth-that is, to convince the jury that Sandoval’s phone followed Vivas around all day on August 3, 2014.
 
That fact was borne out by Detective Lazansky’s testimony, which meticulously detailed the cell phone’s path of travel, and in the state’s closing argument, in which the prosecutor emphasized, “we *** know from Saul Sandoval’s phone that he was at the Swap-O-Rama at the same time that Mr. Vivas was because we know from his phone that his phone took the same path that Mr. Vivas took ***.”
 
According to the court of appeals, it made no difference that Detective Lazansky used Google Earth to convert the raw coordinate data from the T-Mobile report, which was in code and would have been meaningless to the jury, into a format that was actually comprehensible. Information that is hearsay when presented as numerals in a spreadsheet is still hearsay when those numerals are converted to waypoints on a map, and it remains hearsay when that information is conveyed to a jury. However, the finding that Detective Lazansky’s HCSA testimony was hearsay did not itself settle the matter, since not all hearsay is inadmissible. Phone records are frequently admissible hearsay because they are business records.
 
But the proponent of a business record must establish, as a prerequisite to its admissibility, (1) that the record was made as a memorandum or record of the act; (2) that the record was made in the regular course of business; and (3) that it was the regular course of the business to make such a record at the time of the act or within a reasonable time thereafter. The State did not put on any witnesses to fulfill this foundational requirement, so the T-Mobile report could not have been admissible pursuant to business records exception.
 
Admittedly, some business records are self- authenticating. But to be self-authenticating, a business record must be accompanied by a certification from the record’s custodian or a “qualified person” attesting to the three foundational requirements for business records described above. Id. None of the T-Mobile records were certified. As a result, the records were not admissible pursuant to Rule 902(11).The court observed that Detective Lazansky’s testimony was “imbued with the presumption of scientific certitude, a characteristic which can be highly persuasive to a jury”. Thus, if Snyder’s testimony left the jury with any doubt that Ramos was at the crime scene, it was a virtual certainty that Detective Lazansky’s testimony alleviated that doubt. Under these circumstances, the court was unable to conclude that the improper introduction of this evidence was harmless. Accordingly, the appeals court reversed Ramos’s conviction on this basis and remanded for a new trial. People of the State of Illinois v. Juan Ramos 2018 IL App (1st) 15-1887-U.
 

Michael R. Lied
Howard & Howard Attorneys PLLC
One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
(309) 999-6311
MLied@howardandhoward.com
 

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