E-Newsletter Online Legal Questions Answered:

Question Title: Personal Cell Phone records of an officer

E-Newsletter Edition: January 16, 2008

Response Provided By:
Lou Reiter

Always note that state law may be more restrictive on police power than the U.S. Constitution.

QUESTION:

It was my understanding that if an officer is using their personal cell phone on duty and they then become involved in an investigation, the Police Department would have the right to view those cell phone records. Is this true and is there court cases or standards to support that action? We are an accredited agency and follow our standards but not sure about cell phone usage.

Other question is should discipline action, be documented as an I.A. even if it is just a counseling report?

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ANSWER:

The first would be covered in a couple ways. If you're doing an administrative investigation and the need to review personal cell phones is "narrowly, directly and specifically" related to the employee's performance or ability to perform, you could give them a direct order to comply. Their failure would be insubordination. Under your example that would be reasonable, depending on the scope of the inquiry and the allegation.

Your second question depends on your agency protocols.

What I gather you are talking about is some form of supervisory notice/counseling form. While it should be in writing, there would be no requirement that you get an IA number and investigate it as an IA allegation. Now, it might end up becoming part of an IA investigation should the conduct continue and you're building a case for progressive discipline. That's why it's important to have the employee sign the counselling notice.