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.
I sent a subpoena once for an officer’s cell phones,both personal and department issued. He had text messaged a victim in a case 72 times over the course of one night. He was highly perturbed by the subpoena. He did not have a personal cell phone and used the department issued phone for all his communication. Including sexting his girlfriend. Within 5 minutes of hand delivering the subpoena, the FOP attorney was hollering at me.
There is certainly a concern that is expressed occasionally by probation field staff about using their personal phones for texting, emailing or taking photos. Your blog references photos but am I correct to extrapolate that it applies to texting and emailing as well?
Officers have been disciplined for using personal cell phones in violation of department policy, a potential concern regardless of the wisdom of the policy.
A potential problem with the e-mail-the-photo-then-delete-it-from-the-phone approach is that you are arguably destroying evidence. Was there anything on the camera (such as the referenced time-stamp for when the photo was taken) that was not copied with the e-mail to the work e-mail account? Even if everything was transferred, could there be a problem with saving a copy then deliberately destroying the original? It looks shady.
Photographs, like a sketch or any other depiction of a scene, are generally not treated as evidence. Any exif data that could contain time stamps or device information are imbedded in the photo unless intentionally stripped away. Saving, transferring or emailing won’t change that. If you make it a habit to transfer pictures or videos to other storage media and clean off the SD card you should be fine. I think this is one of those legends with no basis in reality that has beed passed down to terrify cops. Take the picture.
Take out the SIM Card and enter it into evidence. That way, you get your evidence #, etc. for court record and it is protected. Afterwards, inform the prosecuting atty. of your actions. I did this years ago on the PD as an officer and CST (Crime Scene Tech) and it worked beautifully!
I am a supervisor on a medium sized department. We have two shift cameras that let’s be honest suck. Every officer has a cell phone that will take better pictures and can email them into the department and download them on the city server . I teach inves. And tell them not to use the cell phone but I use mine almost daily.
I was in Vance County Superior Court awaiting a moment to address Court Order needed for my case and heard this argument come up. The officer from the Henderson Police Department was ordered to turn his phone to the State lab for analysis to retrieve a photograph he obtained during booking and later failed to give in discovery. The officer photographed the defendant to document any signs of a struggle during a homicide. From what I gathered from the argument the defense wanted the extraction but the Superior Court Judge quickly shot down the request advising the photograph content was the extent of what could be obtained. The defense posed arguments of police department policy which were quickly denied as well due to the irrelevance of the dept policy to the criminal trial. I wish I knew the exact case so you could refer back to it.
Secondly we have officers who occasionally use the cellular device for a recording device. While holstered on the belt the device records beautifully and the suspects typically don’t catch it like they do a pocket recorder. Our DA has cautioned our use of this method for similar reasons as listed above.
I was stopped for running a stop sign. The officer said that he was stopping me because my license plate light was out. (it wasn’t) The officer entered into evidence his cell phone video. The video did not show anything but the roof of his car and the sky line, until he got out of the car. Further more it didn’t show what streets we were driving down. And that’s the hole case. He’s saying I went down “D” street that has stop signs. And I’m saying I was on “E” street that has no stop signs. The officer said that the dash cam video wasnt available. I believe that’s because it would have shown he was lying. I’m trying to write a brief for an appeal. What grounds do I use to say that that evidence shouldn’t have been aloud.
That just happened to me Sunday.. The police officer gave me a citation and then said I have video on my cell phone of you running the stop sign… I did not run the stop sign..