I’ve been asked several times lately whether it is a good idea for an officer to use his or her personal cell phone to take work-related photographs, such as photographs of a crime scene or photographs of seized items. In this post, I explain why I think that’s OK, so long as it is consistent with agency policy.
What’s the worry? The officers who have asked me about this have been concerned that an officer who uses his or her personal cell phone to take work-related photographs could face some type of defense discovery motion asking to access the phone, e.g., to ensure that the photographs were taken when the officer claims to have taken them, or to ensure that the images have not been edited or digitally manipulated in a way that compromises their accuracy. Such a motion potentially could result in the officer being deprived of the use of his or her phone for however long the defense examination might take, and could result in the personal content of the officer’s phone being exposed to the defense.
Why I don’t share the concern. I have not seen a single reported case in which such a defense motion has been made or granted. Furthermore, I would expect any such motion to receive a skeptical reception from the courts, unless the defendant were able to present some evidence that the officer was not being candid about the the photograph. In a normal case, providing the photograph in print and/or digital format seems sufficient to protect the defendant’s discovery interest. Just as there has not been an epidemic of defendants seeking to forensically analyze department-owned digital cameras, I don’t expect that there will be an epidemic of defendants seeking to forensically analyze officers’ personal cell phones.
Even assuming that a court did allow a defendant to analyze an officer’s phone, I would think that the court would limit the scope of that analysis to material related to the case in question. I would expect the court to take precautions to prevent the defense from sifting through whatever personal content may exist on the phone.
It still isn’t plan A. If I were an officer, my first choice would be to use a department-issued camera to take pictures, to avoid any risk, no matter how small, of losing access to my personal cell phone. But if I didn’t have such a camera and there were a benefit to taking a picture with my phone, I would take it, if permitted by agency policy. Some agencies do not permit officers to use their personal phones in this manner in order to reduce the risk of an officer inadvertently, or even intentionally, sharing work-related photographs with friends or over social media. One step an officer could take to minimize the risk of the phone ever being the subject of a discovery dispute would be to email any pictures taken using the phone to his or her work email account, and then delete them from the phone.
The closest cases I could find. In my research, I did find two cases in which courts have allowed defendants access to an officer’s phone records, though in neither case did the defendant seek or obtain access to the phone itself. Because they show that using a personal cell phone for work purposes can result in discovery motions relating to the phone, I’ve summarized them below.
- Murray v. Carlsbad, 2010 WL 2612698 (S.D. Cal. June 25, 2010) (unpublished) (in a section 1983 action alleging an unlawful arrest, the plaintiff sought call records for an officer’s personal cell phone; the plaintiff claimed to have overheard the officer on the phone expressing doubts about the arrest, but the officer testified in a deposition that he had not used the phone during the incident; the court granted the plaintiff’s request for access as the records could be used to impeach the officer)
- State v. Ortiz, 215 P.3d 811 (N.M. Ct. App. 2009) (affirming the dismissal of a DWI case after the state failed to comply with a court order to produce the call records for an officer’s personal cell phone; the defendant contested the validity of the stop and whether the officer had received information from any source supporting the stop, so the “the cell phone records were potentially material to [the] defense, given that they might contain information indicating why the officer stopped Defendant”)
Your thoughts? Officers, what do you think about this? What’s your practice? And how readily available are department-owned cameras? As always, I’m interested in perspectives from the field.