Although the Supreme Court has held that police officers must obtain a warrant in order to search a suspect’s cell phone upon arrest, not all police departments have gotten on board. At least one California Highway Patrol officer has been accused of stealing nude photographs from arrestees’ cell phones, and sending them to other officers and members of the general public.

Officer Sean Harrington of the CHP is under investigation for two incidents alleged to have occurred this past August, two months after the Supreme Court’s ruling in Riley v. California. During the CHP investigation Harrington admitted to forwarding revealing photos of female arrestees a “half dozen” times in the last several years, describing the activity as a “game” played between law enforcement officers. Harrington’s statements to investigators suggest that far more officers than those currently under investigation are involved in this perverse game.

There have been a number of similar incidents across the country in the past decade, but none have resulted in criminal charges for the officers involved. In a 2011 incident, two California officers arrested Casey Serrano on suspicion of public drunkenness. Officer (then-Corporal) Zen uploaded a revealing photo from Serrano’s phone onto Serrano’s Facebook profile. Officer Ray deleted a photo Serrano had taken of his patrol car parked blocking Serrano’s driveway. Ray’s parking was in violation of police protocol. Ray was fired, while Zen was demoted. Serrano received a $75,000 settlement from the city.

A New York officer who downloaded 25 revealing photos from a Long Island woman’s phone in 2013 remains on duty. His departmental trial is pending, with potential outcomes ranging from lost vacation days to potential dismissal. A similar incident from Houston, in 2005, resulted in the firing of two patrolmen. No charges were filed against the officers.

While the Court’s holding in Riley v. California guarantees that the fruits of warrantless cell phone searches do not end up presented in court, there are no guarantees arresting officers will not invade cell phone privacy for personal entertainment. The best advice for avoiding such embarrassing incidents is to not keep revealing photos on your cell phone. For those who cannot resist their voyeuristic tendencies, but want to maintain some modicum of privacy, a number of third party apps exist that allow users to save photos and videos in a separate location, protected by a separate password. However, given that at least one of these women’s phones was password protected, and the recent rash of high profile cloud hacks, these apps provide little more than a speed bump for anyone trying to access sensitive mobile content.

 

Anthony Jackson

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