Cellphone policy violates privacy, Merced County deputies group says

A policy that allows Merced County Sheriff’s Department administrators to search the personal cellphones of deputies was at the center of recent Merced County labor negotiations, with leaders of the Deputy Sheriff’s Association calling it an invasion of privacy.

The Sheriff’s Department policy, which has been in place for less than a year, allows administrators to search a deputy’s personal cellphone when “reasonable suspicion” exists of possible misconduct or department policy violations. However, administrators have never conducted a search on a deputy’s personal phone since the policy’s creation.

A search on a deputy’s personal cellphone, according to the policy, can be authorized only by the sheriff. The deputy who owns the phone can be present during the search and the findings are outlined in a written report. The search requires “no judicial authorization,” the policy states.

Law experts told the Merced Sun-Star the administrative policy appears to violate the Fourth Amendment, which prohibits unreasonable searches and seizures.

Sheriff Tom Cavallero, on the other hand, said the policy is based on more than 25 years of case law. Cavallero cited search-and-seizure cases outside Merced County, in which a supervisor or agency searched the property of a subordinate.

Some of those cases involved a physician whose office was searched by hospital staff, a juvenile whose purse was searched for drugs, a sergeant whose work pager was scrutinized, and a police officer who was asked to turn over personal cellphone records after a picture of a dead man was leaked.

But none of the cases dealt directly with an agency searching a personal cellphone belonging to one of its officers, outside of a criminal trial. And while peace officers are generally held to a higher standard than other public employees, law experts said they are still protected by the Fourth Amendment.

“You don’t give up all your rights just because you go to work as a police officer or a deputy,” said John Sims, professor of law at the University of the Pacific, McGeorge School of Law. “My instinct is they can’t search the phones without a warrant. The whole idea is you can’t just decide yourself that there’s a good enough reason to search.

“You have to have a warrant and that has to be given by a judge, not by your supervisor,” he continued. “Would they take the position they could search the wallet of any deputy without a warrant if they had reasonable suspicion?”

Standard called biased

The U.S. Supreme Court in June ruled law enforcement officials must obtain a warrant to search the cellphones of people they arrest. Although that ruling deals with criminal proceedings, not administrative, Deputy Sheriff’s Association leaders say the same level of protection is not afforded to Merced County’s deputies under the policy.

“I don’t think they should be bullying employees on a standard of a reasonable suspicion,” said Deputy Phil Brooks, president of the Deputy Sheriff’s Association, which represents 99 sheriff’s employees, including deputies, dispatchers and deputy coroners.

Under the existing policy, Brooks said deputies would have to turn over their personal cellphones when asked or face insubordination action.

Brooks argued “reasonable suspicion” can apply to virtually any situation. But obtaining a warrant to search a personal cellphone requires probable cause, which requires more proof and a judge’s approval. “The standard for searching anyone’s property is probable cause,” he said. “At least, that’s what we deal with on the street.”

Cavallero said the policy was created in December 2013 at the recommendation of Lexipol, a provider of risk management policies and resources for public safety agencies.

“We thought the fair thing to do was to create a policy and put it out there,” he said. “Otherwise, what you’re left with is someone being surprised with it down the road.”

Cavallero maintains the policy isn’t an invasion of privacy because it’s narrow in its scope and requires approval from the sheriff. “It’s reasonable and it doesn’t allow for random searches,” he said. “The fact of the matter is, peace officers have a lot of access to sensitive information and they’re held to a higher standard of conduct.”

Unlikely to change

Merced County doesn’t provide work phones to its deputies. Only administrators, sergeants, investigators, detectives and those on specialized assignments receive work cellphones. The county also doesn’t reimburse its deputies for use of their personal cellphones.

The Sheriff’s Department has about 74 work cellphones assigned to its staff. The rest of the employees use their own phones, though the department’s policy discourages the use of personal cellphones on the job, Cavallero said.

In a county as spread out as Merced, Brooks said, that’s almost impossible. He said deputies use their personal cellphones about 10 to 15 times on a typical day to make citizens’ reports, communicate with supervisors and relay information they don’t want broadcast over the scanner.

“Cellphones are essential to do our job, but the county does not supply us with phones to do our work,” Brooks said. “The easy way to solve it was for the county to issue us a (work) cellphone. If you issue cellphones to your employees, then we don’t have an expectation to privacy.”

During recent labor negotiations, the county rejected the DSA’s request for work cellphones for its deputies, due to budgetary challenges.

Sims, the UOP law professor, said the department would be in a better position to enforce the search policy on a county-issued phone. “It sounds really quite silly to me that the county is not issuing these officers official phones that presumably they would have the right to examine,” he said.

Merced County Counsel James Fincher said he’s not “overly concerned” the policy will expose the county to litigation because peace officers are held to higher standards. He said the DSA could have filed a grievance against the policy but hasn’t.

With a new sheriff scheduled to be sworn in on Jan. 5, some questioned the policy’s life expectancy. But Merced County Sheriff-elect Vern Warnke hasn’t proposed changes to the policy.

Though Warnke said it “borders” on a violation of the Fourth Amendment, he plans to apply it in a “case-by-case” fashion. “I fully concur with the fact that no other administrator can do this arbitrarily,” he said. “It has to come from the sheriff.”

Policies elsewhere

Law enforcement leaders in Atwater, Merced and Livingston confirmed those agencies are not permitted to search officers’ personal cellphones.

In Atwater, officers use their personal cellphones for work-related purposes, according to Chief Frank Pietro. Supervisors, detectives and some school resource officers are assigned a work cellphone, he said, and that’s the only phone the city can access for a search.

Livingston Police Chief Ruben Chavez said his agency has no policy about searching officers’ personal phones. “We just refer to the process if there’s an Internal Affairs-type investigation,” he said.

Merced police Capt. Tom Trindad said the police administration doesn’t have access to officers’ personal cellphones, but cautioned there is an exception to the rule.

If an officer uses a personal cellphone to photograph a crime scene or send text messages regarding a case, Trindad said, it could be subpoenaed in court as evidence. For that reason, he said, officers are discouraged from using their personal cellphones in case work.

“But we are still afforded the same constitutional rights as any other person,” Trindad added. “We have the same protection, and they can’t search our phones without some type of warrant or emergency circumstances.”

This story was originally published November 14, 2014 at 9:04 PM with the headline "Cellphone policy violates privacy, Merced County deputies group says."