At a recent seminar our investigators attended, a Harris Co officer explained how his office relied upon court orders under Article 18.21, Section 5(1) to obtain records pertaining to a defendant's cell phone calls. The corresponding federal statute is 18 USCA 2703(c) & (d). Has anybody used either provision instead of a subpoena for cell phone records. Pros? Cons?

FYI -- I found the prior thread started by Mike Little 4 yrs ago on this topic. By far, most responders said they used GJ subpoenas which is what we've always done, too, but it appears that Williamson Co used the court order provision based upon Jana's post. My question involves the ups/downs re using 18.21 instead of other means? Thanks!

[This message was edited by TDohoney on 03-28-06 at .]

[This message was edited by TDohoney on 03-28-06 at .]

The downside that I see to this is that there is a provision saying that the telco can be paid for its expenses. There's a good AG's opinion that says people aren't entitled to be paid for responding to subpoenas.

The upside is that the cops don't have to go to the grand jury in order to get the stuff. In some places, that might cause delay, I guess.

THere was a thread a while back about whether a muni judge could sign the order. Seems to me you might want to use a district judge since a district judge is required in other parts of the Article.

Based on presentation from both Sprint and Verizon at an Investigator school and from my own experience, sometimes a grand Jury subpoena works and sometimes you need a court order.

Basic info like whose phone it is, how they pay their bill and who they have called or calls them (detail calls) can be obtained with a GJ subpoena. BUT - if you want text messages, voice messages, email messages, internet records, camera phone records, and perhaps cell site info, or you want to track a phone as it's being used, things that involve electronic communication I beleive it's ECPA (Electronic Communication Privacy Act) that controls what it takes to get this info which is the Article that your investigator is referring too.

From my own experience a few years ago...had a juvenile intox manslaughter case. Defendant and victim, both juveniles, had been drinking when defendant wrecks his truck and kills victim. Since both were juveniles we needed to find out where they had been, where they got alcohol,who was there and saw def. drinking, etc. Defendant wasn't talking. Victim's cell phone was found by the officer at the scene and showed 27 messages on the phone, but we had no password to get to those. Additionally it was a pre-paid phone not in the victim's name. After much discussion with AT&T attorneys, we got a court order for them to release the messages to us. A Grand Jury subpoena was not sufficient because those are conversations with expectation of privacy.

Email me if you want the info provided by these companies and for more ECPA info, check with Ted Wilson from Harris County.

The good people at NDAA - APRI have a downloadable mini-manual or two that might prove helpful in deciding when, and for what, to use a GJ subpoena or a court order. Here is the link to their publications page: http://www.ndaa.org/publications/apri/wwc_publications.html

A court order is also the ONLY way you can obtain "future" information, for example, you have a ongoing investigation requiring constant monitoring of a suspect's cell phone for location tracking, messaging, etc. A court order to preserve and provide immediately can give you access to real-time data.

I created a table to help determine which legal means is best to obtain electronic communication records. My experience has been that the providers are often willing to give you more than you may be entitled. In order to combat future admissibility issues it's probably best to make sure you are using the appropriate legal means. Please send me an email or call me at the Williamson County DA's Office if you would like a copy of the table.

[This message was edited by Steve Hesse on 03-30-06 at .]

Has anyone made use of art. 18.21, sec. 4(b)(5) and sec. 5(a) yet? If you have a sample court order or other thoughts, please let me know by private message.

Martin -- I've done long-arm warrants under 5A for Twitter and Facebook -- all thanks to TC ADA Lori Varnell's legislative work. Happy to share. Email me. tanya