Ability + opportunity. That’s an equation that often results in trouble. It certainly did for several California Highway Patrol officers, who dug through suspects’ phones, sometimes for evidence and sometimes just to pass around any intimate photos they happened to come across. It happened so often that one officer now being investigated referred to it as a “game.”

This is probably not limited to the sunny climes of California, but a similar incident occurred within the Palo Alto Police Department, resulting in another investigation.

A Palo Alto Police Department detective has been disciplined for sending a supervisor a picture of a “scantily clad” woman he found on her cellphone while investigating her involvement in an alleged burglary, according to a new independent police auditor’s report…

An interrogation of a burglary suspect resulted in the officer “taking” her phone to look through it for evidence. The (unnamed) officer then forwarded the photo to the supervisory detective.

(This happened in early 2014, apparently ahead of the Supreme Court decision imposing a warrant requirement. I doubt it would have mattered even if it had occurred past this point. Securing a warrant wouldn’t have prevented the officer from sharing the photo. And I doubt many law enforcement officers are advising suspects of this new requirement. What’s most likely happening is a slight rearranging that turns a demand into a question, with little to no decrease in the number of searched phones.)

When the phone was returned to the woman, she noticed the photograph had been sent to the detective’s number. She complained to a different detective, which (eventually) led to both an internal and external investigation.

The outside investigators noted more than a few problems with how this case was handled.

The independent police auditor said the department’s investigation was “thorough” and agreed with its findings and analysis. But they were concerned that it took the supervisory detective more than two weeks to report the incident to the sergeant, though the delay may have been due in part to “non-overlapping” work schedules, according to the report.

Wow. It’s like email doesn’t even exist. Or Post-It Notes. Or a functioning chain of command with overlap in key positions to prevent this sort of gridlock.

In addition, the auditor pointed out these flaws in the police department’s handling of the incident.

The first was the sergeant’s instruction to the supervisory detective to delete the picture from his cellphone. The sergeant said he wanted to prevent it from being distributed again.

“While the sergeant’s intentions were good, it would have been preferable to obtain a ‘screen shot’ or some other evidentiary preservation of the photograph before deleting it,” [auditors] Gennaco and Connolly wrote.

Police investigators argued the deletion was to keep the photo from being distributed to others in the department, perhaps hinting at the moral turpitude contained within its walls. This defense of its poor evidence management skills also doesn’t say much for the detective who received the unsolicited photo (and very eventually reported it), positing that his level of restraint is no greater than the sending party’s.

The second flaw uncovered was also evidence-related — one that seems to show the officer who sent off the “scantily clad” photo wasn’t too interested in any actual evidence contained on the suspect’s phone. Once he had found what he “needed,” the phone was returned to the suspect and she was asked to “retrieve information” about her accomplices.

Detectives assigned to the burglary case also displayed a “laxity of vigilance” when they asked the woman to help them locate evidence on her cellphone. By their own admission, they did not closely monitor her while she scrolled through her cellphone, according to the report.

“During this period, she could have deleted information from the phone that possessed evidentiary value,” Gennaco and Connolly wrote.

If there’s a next time, I’m sure the unnamed suspect will delete any scantily-clad photos of herselffirst.

The department has refused to comment, claiming that state laws prevent the discussion of internal investigations, presumably for privacy reasons. The unnamed officer has been “held accountable” according to the independent auditor’s report but does not offer further details on disciplinary measures. The police spokesperson noted that the independent auditors are able to release more information than the police department itself can — clearly indicating that without this investigative body, very little, if any, information about this act of misconduct would have been made public.

There are obviously parallels to the abuse uncovered at the California Highway Patrol, but the Palo Alto city attorney claims there actually aren’t, because this was one incident with one photo. This is the same spin the California Highway Patrol applied to its photo-sharing problem, but now that it’s out in the open thanks to an investigation, it can no longer claim that.

The problem with the city attorney’s statement is that it assumes there isn’t similar misconduct occurring. But the attorney doesn’t have that sort of information and most likely has no reason to seek it. Unless an incident triggers an independent audit, the details will stay buried until forced out of the PAPD’s hands. This isn’t the sort of statement one should make while allowing a police department to sweep its bad news under the State Law rug. Maybe there’s nothing else there, but unchecked access to suspects’ devices presents plenty of opportunities for misconduct, so I wouldn’t bet on it — at least not with the level of confidence exhibited here.


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