Cybercrime Review post on tower dumps cited by North Dakota Sup. Ct.

Congrats go out to Jeffrey for a mention in In re D.O. __ N.W.2d __ (N.D. 2013).

The relevant excerpt:

The "totality-of-the-circumstances" regarding D.O. include a confidential informant's tip and an anonymous tip about his involvement, his cell phone activity around the sites at the times of the burglaries, his publicly available Facebook postings and pictures, information garnered from a probation search of his residence and matching shoe prints found at three burglary sites. Although the matching footprints were not successfully linked to D.O., probable cause deals with probabilities; a reasonable theory of probable cause is not retroactively disproved simply because hindsight reveals the theory was in error. State v. Driscoll, 2005 ND 105, ¶ 25, 697 N.W.2d 351. "A tower dump allows police to request the phone numbers of all phones that connected to a specific tower within a given period of time." The Honorable Brian L. Owsley, The Fourth Amendment Implications of the Government's Use of Cell Tower Dumps in its Electronic Surveillance, 16 U. Pa. J. Const. L. 1, 2 (2013) (quoting Jeffrey Brown, What Type of Process is Required for a Cell Tower Dump?, Cybercrime Rev. (May 16, 2012), http:// www.cybercrimereview.com/2012/05/what-type-of-process-is-required-for.html). The cell tower dump in this case showed D.O.'s cell phone was near three burglary sites at the same date and time the burglaries occurred. D.O.'s publicly available Facebook information intimated he was involved in burglary and criminal mischief because it referenced "robbing" and showed pictures of money piles. A confidential informant also linked D.O. to the crimes. Although D.O. challenges the information given by the confidential informant because the informant was a member of the criminal milieu, "[r]eliability of an informant can be established numerous ways, such as corroboration through independent investigation, by affiant's vouching or assertion that the information is reliable, or by the informant giving detailed information overcoming any doubt." State v. Stewart, 2006 ND 39, ¶ 8, 710 N.W.2d 403 (citations omitted). In this case, Fullerton vouched for the confidential informant, stating he has proven to be a reliable source. When a confidential informant is "known to the officer, a higher degree of reliability attaches." Roth, 2004 ND 23, ¶ 13, 674 N.W.2d 495. Considering the totality of the circumstances and all assertions Fullerton made in his Facebook search warrant affidavit, sufficient detail was presented to establish probable cause.