Tag Archives: e-discovery

Discoverable smart (and not-so-smart) phones

Police appropriate cell phone useA few months ago on Officer Radio, I told editor-in-chief Frank Borelli that police cell phones — both employer-issued and personal — can be discoverable during litigation. It was just a quick comment, and we didn’t get into much detail. But it came up on a listserv not long ago, and I think it’s worth exploring further this week.*

Are police cell phones really discoverable?

It should stand to reason that your work-issued device is discoverable. After all, the city, county or state owns it, not you. Even if the government has ok’d your personal use of the device, you have at best a limited expectation of privacy–so said the US Supreme Court nearly two years ago.

Thornier is when you use your personal device on the job. Whether for personal communication or professional reasons–taking pictures of evidence, or emailing a document to a supervisor–don’t expect it to stay between you and the recipient. It may, of course. But it may not if your agency is sued, or your actions become important in a criminal case.

In Phoenix, for instance, officers were investigated for showing a video slideshow of crime scene images at a holiday party–in violation of department policy, which stresses that “Officers who use personal equipment to record or take pictures at a scene or investigation to include potential evidence, witnesses, victims, or suspects, must understand the material is subject to discovery and must be impounded.”

In California, meanwhile, Penal Code 1054.1 states:

The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies…”

The law covers “All relevant real evidence seized or obtained as a part of the investigation… any exculpatory evidence… [and] relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial.” It also covers evidence that can affect witnesses’ credibility. And it doesn’t distinguish between agency-owned or personally owned property.

What you do on a mobile device is only part of the issue. The other part is your use itself. In other words, if you spend two hours every shift texting your significant other, what are you not doing during those two hours? Your agency may be less interested in the content of your messaging than the timeline it represents, as was the case in New Mexico in a 2005 DUI case.

The bottom line

Administrators: work with your supervisors to develop an acceptable use policy for both agency-issued and personal mobile devices. The policy should cover expectations of privacy and under what circumstances a search may be conducted. See the Americans for Effective Law Enforcement (AELE) February 2012 law brief, which goes into depth on the topic.

Line personnel: Use your personal cell phone or camera to record evidence only if it’s your sole available means of doing so. Otherwise,assume your mobile devices may be searched at any time, and remember it’s not always better to ask forgiveness (as opposed to permission).

It’s not unlike second-guessing your social media posts: always take a moment to consider whether the post is appropriate; never post when you’re drunk, tired or stressed; ask yourself whether you’d be comfortable with the photo (or tweet, or email) on the six o’clock news.

Does your agency have a policy on personal cell phone use on duty?

*I’ve been meaning to write this post since I did the Officer Radio show. However, between then and now, I was made an employee of a mobile forensic solutions provider I’d been contracting with. Since mobile forensics most definitely plays a role in the discovery of both criminal and civil evidence, a disclosure and disclaimer: both the decision to post and the opinions expressed are mine alone.

photo by: smi23le