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Constitutional Protection of an Officer’s Cell Phone

Cell phones and smart phones have become as much a part of a police officer's set of gear as a firearm and a notepad. Officers use them for calling in reports, emailing witnesses, and even taking pictures of crime and accident scenes. They also use them to call significant others, send unsavory text messages, store pictures of family and friends, and surf the internet. They have become not just tools of the trade, but extensions of an officer's personal life.

That evolution makes it unlikely that any police officer would want their supervisor, chief, or a criminal investigator looking around through the many files, lists, and histories that phones typically store in this day and age. But more and more often, supervisors, chiefs, and criminal investigators want to do just that in order to investigate internal complaints, or to substantiate criminal charges. As a result, the question now frequently arises – can my employer access the contents of my phone? The answer: it depends.

The Tenth Circuit (the federal court circuit in which Colorado is located) has yet to explicitly determine whether a cell phone is provided the protections of the Fourth Amendment. However, like every other court to examine the issue, it holds that personal computers are protected by the Fourth Amendment. And because today's cell phones are more akin to personal computers than they are the simple calling devices of merely a decade ago, cell phones are afforded the highest degree of protection. Colorado's state courts appear to agree that a phone and its contents are protected.

As with any other object that contains information or evidence, the protection afforded a cell phone can be dependent upon the degree of expectation of privacy an officer outwardly exhibits in his cell phone. Under most circumstances, the mere possession of a cell phone will give rise to an expectation of privacy in and protection of the phone's contents – even if the phone is provided by the officer's employer. However, factors such as whether an officer shares his phone with others or whether that officer leaves his phone unattended in a public place can diminish that expectation.

But simply because the Fourth Amendment protects a phone does not mean that an officer's employer cannot gain access to that phone's contents. Police officer employers may intrude upon their officers' expectations of privacy for non-investigatory work or investigations of work-related misconduct, so long as the invasion is "reasonable." The standard of "reasonableness" gives an employer a significant amount of latitude, even potentially allowing the employer to compel an officer to relinquish the phone under some circumstances. And even if the standard is violated, an employer may not be precluded from using evidence obtained in a unlawful search during an administrative hearing.

The investigation of criminal matters may also lead to the search of a phone's contents. Because a cell phone is protected by the Fourth Amendment, a warrant, issued upon the showing of probable cause, will normally be required before a phone's contents can be searched. However, all the normal warrant exceptions also apply to the search of a cell phone including exigent circumstances, search incident to arrest (Ohio and California have come to differing conclusions, and Colorado has yet to decide), and even plain-view.

As such, it is clear that although an officer's cell phone and its contents are constitutionally protected, that protection can be diminished both by an officer's conduct and the interests of the officer's employer. However, an officer can take numerous affirmative steps (aside from never committing a criminal offense or a violation of policy) to ensure the maximum protection for a cell phone's contents. First, do not share your phone with anyone else. Keep your phone in your pocket, on your belt, or at least somewhere close by at all times.

Second, politely decline any invitation by supervisors and investigators to examine your phone and its contents. Without a direct order or a warrant, the phone can and should remain in your pocket.

Third, protect your phone with a password that automatically engages after several minutes of inactivity. Do the same with any folders or files you decide to keep on your phone. The existence of password protection not only adds to the appearance of an expectation of privacy, it also prevents someone from merely picking up your phone and browsing through its contents. Most importantly, in the event that someone demands to see your phone's contents (read: your supervising lieutenant), it may buy you some time before they are able to do so.

And what should you do with that time? Call an attorney.

Of course you could always ensure that your phone contains no pictures, music, messages, games, or lists of any kind so that a search of its contents would reveal nothing at all about an officer's personal life. But what fun would that be?

Article by: Sean Olson

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