“Personal” May Not Mean “Private”: Considerations for Personal Cell Phone Use On-Duty

Office of the General Counsel, International Union of Police Associations 

Be careful in your use of your personal cell phone while on duty.

In the leading case on this issue, the New Mexico State Court of Appeals required the production of an on-duty Police Officer’s personal cell phone records to the defense in a criminal trial. State v. Ortiz, 215 P.3d 811 (N.M. Ct. App 2009). However, while the Court ordered the Officer’s personal cell phone records be produced, it required the defense to make a showing of need for the documents and only granted the production because several restrictions and privacy protections were in place.  The court held that the defendant’s due process rights could not be compromised by the officer’s right to privacy.

In 2005, a Santa Fe New Mexico Police Officer, John Boerth, arrested the Defendant (Ortiz) for Driving While Intoxicated (DWI).  During the pretrial proceedings, defense counsel expressed a potential defense to the DWI; that Officer Boerth’s traffic stop was pretextual and that all evidence thereafter should be suppressed. Defense counsel argued that there was a “missing six (6) minutes” of video from Officer Boerth’s dashboard camera immediately before he pulled over Ortiz and requested additional records to fill that “gap”. The State Attorney’s Office argued that the dash camera does not regularly record until the police cruiser’s emergency equipment is activated and that there was no “gap” because Boerth’s reason for the stop was based on the Defendant’s erratic driving.

Defense counsel argued that Officer Boerth’s cell phone records (along with other documentation including dispatch records) should be provided because Officer Boerth’s initial explanation for the stop was not supported by the evidence, and the missing time could prove or disprove whether Officer Boerth had a valid basis for his traffic stop.

The Court required defense counsel to prove three primary elements for production of sensitive material in order to be entitled to the requested documents.  First, the defense had to show that the records were in the control of the State.  Control was shown because the Court determined that Officer Boerth was an “arm of the State” and a member of the “prosecution-team” subjecting his records to their custody. Second, the defense had to show that the requested documents were “material to their defense”. Lastly, the defense had to show that they would be damaged if they were denied access to the documents. The last two elements were shown because the defense was able to show that there was a “strong indication that [the requested evidence] will play an important role in uncovering admissible evidence…”

Additionally, the Court ordered production of the records because the following privacy protections and appeal mechanisms were available:

1. The records requested by the defense were for a specific, finite period of time and did not encompass the totality of the records.
2. The records themselves would be appropriate to produce only if there was no recording of the potential phone call itself.
3. The State could have limited or even prevented the records from being disclosed by filing a motion for a protective order if a defense (such as protection of a confidential informant) existed.
4. If there were potential personal matters of the Officer, irrelevant to the case itself, the State could file for a private review of the records with the judge and defense counsel, away from public forum of the courtroom, before the records would be made part of the official court record.

In fact, the examination of Officer Ortiz’s cell phone took place in the judge’s chambers in order to guard against public disclosure of any information that was not relevant to the case at hand.

Even though the Ortiz Court ordered the production of the Officer’s personal cell phone records, the Court’s decision may give Officers ammunition for exclusion of these types of records and protection of their personal information in their own jurisdictions.

While this case does not bind any other state or federal court as precedent, there has been a growing trend of similar cases around the country.  If this becomes an issue for you or your members, check cases in your jurisdiction and any additional considerations or limitations your courts have imposed.  Also, be sure to look at your court’s elements for production of sensitive material as well as any privacy protections extended to Officers, not just the outcome of the cases.  It is clear that some courts factor the privacy concerns of Officers, meaning your case may lead to a different outcome.

When it comes to use of your personal cell phone, “personal” may not mean “private.” Be cautious with your communications while on-duty. This applies to texts and emails as well.  In today’s climate, innocent messages can be spun to work against you. Your best option may be to keep your private cell phone communications to a minimum while on duty.