Your Cell Phone and the Police – Know Your Rights As if you didn't have enough to worry about when being charged with a suspected DUI, now you can add the concern that your right to privacy may be compromised, particularly if you're a woman. News agencies in California have seized upon a story reported by the Contra Costa Times regarding at least three California Highway Patrol officers sharing revealing photos of young women, obtained from the women's cell phones while they were in custody for alleged DUI and other alcohol-related charges.
Contra Costa Times' reporters Matthais Gafni and Malaika Fraley reported on the Aug. 29, 2014 case of a 23-year-old San Ramon woman who was pulled over in an East Bay Area neighborhood for possible DUI. After failing a Breathalyzer test, the young woman was arrested and taken to the Martinez County jail. Days after her release, the woman discovered that explicit photos of herself had been sent from her iPhone to an unknown number. Although the record of the photo sharing had been deleted from her cell phone, the photo transfer and receiving-end phone number were captured by her synced iPad, offering a digital record of the incident. The unknown phone number was traced to the woman's arresting officer, Dublin CHP officer, Sean Harrington.
An investigation led by senior Contra Costa district attorney inspector Darryl Holcombe revealed that the time-stamped text messages and forwarded photos occurred at a time when the woman's phone was in Harrington's custody. Confronted with the evidence, Officer Harrington admitted that after confiscating the suspect's phone he trolled through her files for revealing photos and sent six of them to his own phone, from which he forwarded the pictures to at least two colleagues, including fellow Dublin CHP officer, Robert Hazelwood. Holcombe stated in a search warrant affidavit that officers Harrington, Hazelwood and others took part in a "scheme to unlawfully access the cell phone of female arrestees…[and steal] nude or partially clothed photographs of them," which Holcombe asserts constitutes felony computer theft.
The affidavit also states that "Harrington…learned from other officers that they would access the cell phones of female arrestees and look for nude photographs…. Harrington said if photographs were located, the officers would then text the photographs to other sworn members of the office, and to non-CHP individuals. Harrington described this scheme as a game." In court documents, Officer Harrington portrayed the practice as something he had picked up while stationed at a Los Angeles CHP office before transferring to Dublin. According to Harrington's statements, it is a game he and other officers have played a “half dozen” times over “several years.” Similar accusations have been made against police officers in other states as well, including Texas and New York.
The search of Harrington's cell phone revealed other photo-sharing incidents, including that of a 19-year-old woman involved in a DUI crash in Livermore, whose bikini-clad photos Harrington sent to Hazelwood along with the text, "Taken from the phone of my 10-15x [CHP code for woman in custody] while she's in X-rays. Enjoy buddy!!!” to which Hazelwood replied, "No f------ nudes?" According to the affidavit, Harrington then sent the photos to another Dublin CHP officer, Dion Simmons, who texted back "Hahahaaaa” and "Nice." Harrington responded with the instruction, "Just rerun a favor down the road buddy. :)"
Police Misconduct Can Result in Dismissed DUI Charges As of this writing, none of the officers allegedly involved have been charged, but while the DA continues its investigation, the CHP has confirmed that one officer (presumably Harrington) is currently assigned to desk duties. In the meantime, it appears that at least one DUI trial has been affected by the scandal. An Oakland, California DUI case depending on the testimony of Officer Robert Hazelwood was dismissed as a result of his questionable credibility as a witness, defense attorneys propound. The case against the San Ramon woman was also dismissed. Contra Costa County prosecutors may find similar dismissals in store regarding similar criminal cases involving Harrington, Hazelwood, Simmons and any other officers implicated in the collusion.
As shocking as the allegations may be, they are hardly new to the CHP, as the agency's own commissioner, Joe Farrow, conceded when he cited similar accusations made several years ago against two other Los Angeles police officers, resulting in one officer being fired and another tendering his resignation. In another documented incident in 2011, a woman arrested in Morgan Hill, California for allegedly being drunk in public claimed that while she was in police custody, Officer Mindy Zen uploaded a nude photo from the woman's phone to her Facebook account, exposing the woman's naked breast to her Facebook friends and followers.
The woman, who said she had taken pictures with her phone of second officer David Ray's squad car – which she alleged was parked so that it deliberately blocked her driveway – claimed Ray handled her phone and deleted the photos documenting his actions. After an internal investigation, Zen was demoted and Ray was fired. Ray sued for wrongful termination, but the judge ruled that he had arrested the woman without probable cause and tampered with her phone, and he lost the suit.
The victim filed a claim against the city and won a $75,000 settlement. In an effort to quash such abuses of authority by law enforcement, the US Supreme Court recently ruled that police must obtain a search warrant before they're entitled to search through suspects' phones, tablets, computers and other devices containing personal information. Officers who search through devices without a warrant risk being charged, suspended and even fired, and having cases in which they will testify as material witnesses dismissed.
If you have been charged with a DUI, public drunkenness or another charge, make sure you pay careful attention to what police may have done with your personal items, including your phone, tablet or other device that may contain photographs and other private information. When possible, sync your phone to other devices to create a permanent record of what is accessed, sent or deleted from your phone while it is out of your custody. If you can find evidence that your photos have been stolen, manipulated or shared by a police officer, you need an experienced attorney who will make sure your rights are protected, both regarding your privacy and concerning your DUI or other charge.