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Are a cop's personal cell phone records fair game in court?
When Officer John Boerth got to court on what he thought would be a slam-dunk DUI case, a surprise move by a public defender forced him and the prosecutor to draw a line in the sand.
Their second surprise came when the trial judge stepped over it.
Now, support of the judge’s action recently by the New Mexico Court of Appeals potentially raises a question for every officer in the country: to what extent are records from your personal cell phone subject to public review in a criminal trial if you carry the phone with you on duty?
“Hopefully, the appellate decision will not have significant impact in other states,” says PoliceOne columnist Ken Wallentine, a law professor and chief of law enforcement for the Utah Attorney General’s Office. “But it would be wrong to just shake your head and say this is not a big deal.
“This case speaks directly to the issue of privacy rights of police officers, and the appellate decision could have persuasive authority in other jurisdictions. Frankly, this case scares me.”
One quiet, rainy summer evening in 2005, John Boerth, then a patrol officer and now a detective with the Santa Fe PD, responded as backup toward what sounded to him like an ambulance-assist call on the other side of town. A woman was reported down in the parking lot of a gas station/convenience store, and a civilian was said to be performing CPR on her.
En route with lights and siren activated, he got an update. “Now,” he told PoliceOne, “dispatch said she’d been loaded into a four-door gold or tan Honda that took off. I wondered why they got out of there before the ambulance arrived, but I figured maybe they were going to the hospital.” He killed his lights and siren and turned back toward his beat.
Moments later, a brown Acura sedan with a male driver and two female passengers turned in front of him. That could be the car from the parking lot, Boerth thought. Moreover, “the driver was not maintaining his lane...weaving, bouncing off the curb.”
The officer reactivated his emergency equipment and pulled the car over.
“There were Budweiser cans on the floor in back and the driver was nodding like he was on heroin,” a symptom Boerth readily recognized from past experience working narcotics. The name and DOB the suspect offered came back clean, but he failed a field sobriety test and, despite an initial consent, ultimately refused to have blood drawn at a nearby hospital.
When Boerth questioned the women, they admitted having been at the gas station. “Everyone in the car shot up,” Boerth says. One of the females seemed to OD, but when the others brought her around, they all left.
Boerth arrested the driver for DUI. It was not until the man was booked into the jail that Boerth discovered he’d lied about his name.
He was really Marty Ortiz, with several past DUI convictions (among other offenses), making him eligible for a felony charge — and forcing Boerth to redo the paperwork because of the name change. “It was all a big old mess,” Boerth recalls.
Ortiz was not an easy client for a lawyer to defend. Besides the previous driving offenses, his sheet included multiple drug convictions, burglary, attempted murder — a laundry list of crimes large and small. Donna Bevacqua-Young, Traffic Safety Resource Prosecutor who represented the State in his latest DUI, had “prosecuted him five or six times before,” she says. She believes the public defender who drew his case groped for a viable legal strategy.
It was in this effort that the case morphed from messy but commonplace into a hot potato that some legal observers say is potentially transformative.
During a series of pretrial hearings and conferences in Santa Fe County district court in the summer of 2006, the public defender doggedly pursued a bold demand for discovery. He wanted “access to evidence of all oral, electronic, telephonic, or written communications made between Officer Boerth and any other person” during the stop, “including personal cell phone calls that Officer Boerth had with anyone.”
As Boerth recalls it, there were allegations that “I knew his client and was out to get him.” Supposedly a “confidential informant” had called on the officer’s cell phone that night to tip off Ortiz’s whereabouts. Boerth’s dash-cam revealed no evidence of erratic driving, it was claimed, so the stop was made on a false “pretext” and therefore was illegal.
“Concocted BS!” Boerth emphatically asserts. “I’d never seen the driver before that night. If I knew him and was out to get him, why would I do all that paperwork with the phony name he gave me?”
As to the video recording, “The camera didn’t start until I turned on my emergency equipment to actually pull him over. I witnessed the dangerous driving behavior before that.” The public defender referred to that unrecorded gap as “missing footage,” implying a suspicious irregularity. It amounted to six minutes and 35 seconds between the time Boerth killed his lights and siren from the gas station run until he decided to stop the impaired driver.
Boerth says he did have a personal cell phone with him, but he didn’t receive or make any calls on it relative to the stop and arrest. And there was no confidential informant.
Ramifications for Officer Safety
Ken Wallentine, writing about the case later in his legal newsletter “Xiphos,” observed: “Ortiz’s defense attorney didn’t use the term ‘fishing expedition’ in the demand for [Boerth’s] cell phone records, but offered no substantive basis” for why he was entitled to get them. Nor was the formal process of subpoenaing the records and giving Boerth a chance to be heard followed.
Donna Bevacqua-Young, the prosecutor, says she didn’t know about Boerth’s personal cell phone use on the night in question — or even if he had one with him. But when the defender made his sweeping demand, she was alarmed. She told PoliceOne: “I thought about the security of officers’ friends and families. If dangerous felons can get their hands on private cell phone records, anything could happen.”
She argued — with the full support of Boerth and the police department — that granting the defense motion would constitute an unwarranted invasion of the officer’s privacy and violate his rights under the federal and state constitutions. He “has a reasonable expectation of privacy in his personal cell phone records,” she said.
At the very least, she maintained, the federal Electronic Communications Privacy Act specifies that “reasonable grounds” must be shown that the records are “relevant and material to an ongoing criminal investigation” before they can be ordered surrendered, and the defense had failed to offer such proof. She told the judge, “There is no way that the State is giving out” Boerth’s cell phone information which, for the record, remained in the officer’s possession.
Ortiz’s attorney kept pressing, of course, arguing that Boerth “did not have an expectation of privacy of his cell phone records while on duty, on patrol, in a marked unit, during an emergency or arrest situation.”
After weeks of wrangling, Judge Stephen Pfeffer in the end agreed that the defense “had a right to access the requested information even without knowing whether any such information existed.” He did attach limitations. Only Boerth’s cell phone records during the controversial six-minute “missing footage” gap in his dash-cam recording would be subject to review. This apparently was the time the defense considered most likely that the alleged C.I. call occurred. And the State could request that the judge first inspect the records alone in his chambers to determine if they included “personal matters irrelevant to the case.”
With those conditions, he ordered Bevacqua-Young to produce Boerth’s cell phone records. The officer was “an arm of the State,” the court ruled, and therefore his private phone records were “within the possession, custody, or control of the State, making them subject to disclosure.” Still, the prosecutor steadfastly refused to order Boerth to surrender them.
Her stance was “insulting” and “in bad faith,” Pfeffer declared, and it “arguably intentionally” prevented the trial from moving forward. Early in 2007, he granted a defense motion to dismiss the case. Marty Ortiz walked.
On the State’s appeal, the case landed with the New Mexico Court of Appeals, which now, nearly three years later, has issued a ruling that supports Judge Pfeffer’s decision and his reasoning regarding officers’ personal cell phones.
Bevacqua-Young’s behavior in refusing to cooperate was “conscious, intentional, and unjustifiable,” the Court of Appeals stated. Her privacy arguments were not “persuasive,” in the court’s view. For example, the court reasoned, the Electronic Communications Privacy Act protects only service providers, not phone customers. Consequently, “[W]e will not disturb the district court’s decision.” Ortiz’s dismissal and the judicial reasoning behind it stand affirmed.
Not surprisingly, Bevacqua-Young is convinced the appellate panel got it wrong. “I wouldn’t change anything I did,” she says. And Boerth predicts that “this is not going to be the last time this issue comes up.”
Wallentine agrees. He praises Bevacqua-Young for “cowboying up and standing her ground” regarding Boerth’s privacy rights. He believes that Pfeffer’s order for her to produce the phone records was a “plain violation” of the Electronic Communications Privacy Act.
“I am mightily offended by the outcome of this case,” he says. “I consider it a warning. It raises vital questions about an officer’s constitutional rights. There may be a lot of intimate information on a cell phone, in addition to numbers called and received: family records, photographs, internet banking transactions, passwords, account numbers. Is it right for an officer to have a diminished expectation of privacy regarding his personal life just because he carries a personal cell phone on duty?
“Right now this case affects officers in New Mexico. Maybe it will not gain traction in other jurisdictions. But you should be discussing the issues involved with your administration, your prosecutors, and your union so you know where you stand before you find yourself facing them.”
In New Mexico, appeals of court rulings are handled by the Attorney General’s office. Bevacqua-Young says the decision had been made there not to appeal the Ortiz case further.