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Louisiana Appellate Court Upholds Criminal Conviction on Basis of Photo Metadata

This past Wednesday, the Court of Appeal of Louisiana, the intermediate appellate court for the state, issued a decision, State v. Harrell, NO. 18-KA-63, 2018 La. App. LEXIS 2061 (La. Ct. App. Oct. 17, 2018), affirming the decision of a lower court convicting the Defendant for possession of a firearm by a convicted felon. A jury acquitted the Defendant of second degree murder. A forensic analysis was performed on the Defendant's cell phone after it was seized when he was arrested. The metadata for photos of the Defendant holding firearms showed they were taken in December 2013 and January 2014. Metadata was not available for a photo of the Defendant holding a firearm that was sent to him in a text message. The Defendant was convicted in 2004 of possessing marijuana within a thousand feet of playground. The Defendant argued that the State did not prove that one of the photos was taken in the date range they claimed it was.

In reaching the decision that the Defendant possessed a firearm in the applicable time period and had the general intent (simply intended to do the criminal act), the Court relied on the testimony of a detective (a mobile device forensics expert) that photos showing the Defendant holding a firearm, "contained metadata providing for the make and model of the phone which captured the image as well as the capture date and the time the photograph was taken." Id. at *9. The Court rejected the Defendant's argument that firearms were superimposed on the photos, which was not raised at trial, and for which no evidence was submitted in the appellate record to support it.

This is one appellate opinion which is fairly straightforward - at least with regards to upholding the Defendant's conviction for firearms possession. (The Court also reviewed the record for errors patent - with respect to the leniency of the sentence; the designation of the crime as violent on the transcript (it was found not to be); and the date of the offense on the uniform commitment order.) However, it reveals several things of interest with respect to the use of electronic evidence. The police clearly have a strong focus on collecting data from smartphones. A detective served as the mobile forensics expert, not an outside technician. Photos sent via text messages may be stripped of meta data. Even at the appellate level, judges are willing to base a defendant's conviction for an offense one could argue was victimless and non-violent solely on the basis of a photo's metadata. Lavelle 'Big Mike' Harrell was sentenced to 20 years without the possibility of parole, simply because he held a gun, just shy of 10 years after he was caught with weed not in a schoolyard but within 1,000 feet of one. The statute criminalizing the possession of a firearm by a felon includes a cleansing period - it does not apply to anyone who has not been convicted of a felony in the past 10 years. Bike Mike is going to do 20 years hard labor for having a drug half of Americans use regularly without fear, and then doing something half of Americans believe should be an inviolable Constitutional right. Good luck Big Mike!

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