A Valentine to Anonymous

This post is an open letter to Anonymous, who hacked the lawyers who represented Sergeant Frank Wuterich. He and others were court marshaled and merely slapped on the wrist “negligent dereliction of duty,” basically a parking ticket) for killing 24 Iraqi civilians. In retaliation for the decision, they took down the website of Puckett and Faraj (still down), the law firm that represented the defendants and posted 3 GB of personal information from the hack. 

Dear Anonymous-

You know I have a deep and abiding respect for you. You’re definitely smarter than us and there’s no question you are mighty. You’ve got every reason to be pissed off that the Marines got off. But, civil rights gotta go both ways. What if that was YOUR information that was hacked and posted online? What if the intimate details of the defense strategy in the government’s criminal case against you were posted?

If you’re gonna be vigilantes and you’re gonna talk the talk, then walk the walk. The Pucket and Faraj website is still down. Come on. The Marines are, admittedly, jerks. They probably deserve more punishment. We weren’t there and we don’t have all the information. That’s what courts are for. Seriously. That’s why we have lawyers on both sides and judges. They go through all the minutia, bit by bit (like the reference?) and something comes out on the other side. Sometimes it’s absolutely idiotic. Sucks. But that’s the price we have to pay, and it’s really hard to swallow, to ensure that we get the benefits of the same rights.

Seriously. Most law firms can’t afford the kind of security required to keep you guys out. (If the feds can't keep you out, we can't keep you out.) Most can’t even afford dedicated IT people, to be perfectly honest. Sometimes the more sophisticated firms encrypt client data and have security on their Internet connections, or they store client data on a separate system from an Internet system, but they can’t be all things to all people. Judges can’t be, either. But, they’ll be there when you need them. 


And someday you may need them. (You know how you hack into people's systems and stuff? That's sort of a crime and the government frowns on that. If the feds ever get a hold of you, you are going to want a really, really good lawyer and a really, really good expert.) And you’re gonnna pray to GOD that nobody hacks their system and posts your personal information. Just sayin. 


And PLEASE don’t hack my site or mess with my data.  Rights have to go both ways if you're going to have them. Otherwise, it's totalitarianism. The stuff you say you're fighting against. . . Again. Just sayin'.

Quon v Arch Wireless- Search and Seizure Issues- Post 1

Quon v Arch Wireless, et al. – Part I- Search and Seizure Issues

Quon may herald the dawn of new privacy protections. Probably NOT, though. Given the current makeup of the court, I just can’t see it happening.

Let’s start off with the facts of the case so that we’re all on the same page and then I’ll go into my reasoning (for you folks who either already know the facts or don’t care, I’ll give my reasoning in a nutshell—the Supremes aren’t going to find a reasonable expectation of privacy exists in public records).

Quon was a sergeant in the Ontario, California police department. He was issued a text-pager in 2002. At the time, there was a department policy that expressly governed Internet, email and computer use. The policy was not modified to embrace the text-pagers. The policy stated that employees have no expectation of privacy in their Internet, email or computer use.

There are two major cases from the Quon litigation. One is the 9th Circuit case from 2008 and the other is from 2009. The 2008 case is the meat and potatoes- that’s where the 4th Amendment issues are decided. The 2009 case mostly airs some of the Justices’ laundry with biting majority and dissenting opinions concerning the more esoteric Stored Communications Act issue.

The 2008 majority found and the 2009 majority upheld the informal policy announced and enforced by Quon’s supervisor applied to the pager and text messages. The informal policy emanated from the supervisor’s statement (which was disputed) that as long as personnel did not exceed a 25,000 monthly character limit, that no one would read the messages. (Many message services online limit single messages to 150-200 characters. At the average of 200 characters per message, the 25,000 character limit translates to about 125 messages a month, or about 4 or 5 messages a week.) If a user exceeded the character limit, he or she would be required to pay for the overage. Quon went over the character limit several times. The supervisor at one point determined that he did not want to be a ‘bill collector’ and the chief directed that he conduct an audit of the highest users’ messages. The purpose of the inquiry was to determine whether the messages were business or personal in nature, as the department would increase the character limit if they were requiring officers to pay for business related communications.

The supervisor requested and received copies of the text messages from Arch Wireless, the text-pager communications provider. From reading the messages, the supervisor recognized that many of them were sexually explicit and initiated an internal investigation to determine whether department employees were spending work time on personal matters. Many of Quon’s messages were to and from one of the department dispatchers, Quon’s wife and another sergeant at the police department. The department employees were not disciplined as a result of the text message audit.
Quon, his wife, the dispatcher and the other sergeant filed suit against Arch Wireless, the supervisor, chief and the city of Ontario, California for violating the Stored Communications Act within the Electronic Communications Privacy Act, 18 USC 2701-2711, 18 USC 1983 and violation of the plaintiffs’ 4th Amendment rights against unreasonable searches and seizures. There were a number of motions for summary judgment, an appeal and a denied motion for rehearing en banc. (This is just a gloss over of the procedural history, which is rich. See the case for more information.)

There are two big issues going on in the Quon case. Much has been made about the privacy issues, and they are significant. There is an ECPA issue that is critically important as well. The following sections will address the privacy issue and I'll address the ECPA/SCA issues in Post 2.

Search and Seizure

We all know the routine- the Constitution protects people not things (Katz v U.S., 389 U.S. 353 (1967)). In order for property to be protected by the Fourth Amendment (and the Fourteenth), the owner must possess a reasonable expectation of privacy in it and the expectation of privacy must be one that society is willing to recognize and protect.

My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.

Katz, 389 at 361 (Harlan, J. Concurring).

In Quon, the 9th Circuit incorrectly held that Quon possesses a reasonable expectation of privacy in the pager messages and that the expectation is one that we should recognize. That’s the principle flaw in the opinion. Quon may have asserted an expectation of privacy in the messages. He may have actually possessed a deluded belief that the messages were “private,” but his expectation of privacy is unreasonable and not one that we should recognize. The reasons I believe the expectation of privacy was unreasonable are that first, the pager messages were public records, and second, the department’s Internet use and email policy applied to the messages.

California Public Records Act

California has a freedom of information act that makes most government communications public records. (See Cal. Gov’t Code § 6253(a).) The majority held that “[t]he existence of the CPRA as a consider¬ation is offset by the existence of the informal but express policy and practices governing the use of the pagers by the OPD officers. Moreover, as our panel (and the district court) note, there was “no evidence before the [c]ourt suggesting that CPRA requests to the department are so widespread or frequent as to constitute an open atmosphere so open to fellow employees or the public that no expectation of privacy is reasonable.” Quon, 529 F.3d at 907 (alteration in original) (internal quotation marks omitted); see Zaffuto v. City of Hammond, 308 F.3d 485, 489 (5th Cir. 2002) (holding that, notwithstanding the existence of the public records law, “[a] reasonable juror could conclude . . . that [the plaintiff] expected that his call to his wife would be private, and that that expectation was objectively reasonable”); see also Yin v. State of Cal., 95 F.3d 864, 871 (9th Cir. 1996) (“Although there is little direct case law on point, obviously there are lim¬itations on the state’s ability to erode reasonable expectations of privacy by statutory enactments.”).”

Is California another PLANET? Seriously, a statute is offset by an informal policy made up by a supervisor? Here, the court is stepping way over the line. The officers know that what they write and communicate is a public record. No one who works for a police department, having worked for a police department for more than eighteen years myself, seriously expects privacy in their communications.

The court is wrong in holding that although the CPRA may apply, the number of requests for the information are so infrequent as to allow for a reasonable expectation of privacy in the messages on the part of the pager users. I may be wrong, and often am. However, the line established by the court seems preposterous. In essence, the court is saying that the messages are private for some purposes, but for other purposes they aren’t. As a citizen, I could request the messages and be entitled to receive them, put them on my website, include them in a news article. But, if nobody requested the messages, the person who sent or received them could retain a privacy interest sufficient to sustain a lawsuit against the government if the government violated the privacy expectation. It just doesn’t sit right. It sounds too much like having one’s cake and eating it, too.

I think the dissent in Quon gets it more right than the majority does. “Government employees in California are well aware that every government record is potentially discoverable at the mere request of a member of the public, and their reasonable expectation of pri¬vacy in such public records is accordingly reduced. As noted in O’Connor, where the public has access to a government workplace, it may be that “no expectation of privacy is rea¬sonable.” 480 U.S. at 717-18.” At 19. The argument is compelling. The text messages were public records, so, while there might be some unrealistic, yet extant, subjective expectation of privacy, it was neither reasonable nor was it an expectation of privacy that we should protect.

Besides the statutory issue, it’s simply not reasonable for a police officer to think that a first line supervisor can countermand state statute with a verbal statement of informal policy. Just because a supervisor says he isn’t going to enforce a policy, or will relax a policy in a given instance, that cannot create an expectation of privacy in a public record. If a higher level supervisor orders enforcement of the policy, the informal policy is unenforceable because the supervisor had no authority to create it in the first place.

To reiterate, 1) any citizen could request the text messages, and under the California statute, the police department would be obliged to turn them over (notwithstanding the Stored Communication Act issue, which I will address shortly); 2) the informal policy was not valid because the supervisor did not have the authority to void a state statute; 3) because Internet communications and email were not subject to an expectation of privacy under the department policy, it would be unreasonable to expect that the text messages would be.

Not a Privacy Interest We Want to Recognize

Even if the Supreme Court holds that Quon had a reasonable expectation of privacy in the pager messages, they should find that such an expectation of privacy is not one that we, as a people, want to protect. Sure, we want people to exercise their First Amendment right to free speech. Most of us agree that the right to free speech is central to the success of our political system and a key ingredient of our freedom. However, this isn’t a First Amendment case. This is a Fourth Amendment case. We’re talking about the employer having a right to access speech held in storage on government owned equipment. Although the speech may be personal in nature, it is otherwise not allowed by policy in other electronic forms, and is comingled with official speech.

The comingling issue is important because personal and work-related pager messages are stored together. Certainly there probably was some way to separate the wheat from the chaff. However, if there was a request for information by the public or in response to litigation, all the messages would have been culled through and the personal messages read, notwithstanding any expectation of privacy Quon may have held. Consider a situation in which a citizen requests all text pager messages sent or received during the period just prior to and just after a car accident. State of New Mexico v Marty Ortiz (2009-NMCA-092, 8/13/09). In Ortiz, the material sought was personal cell phone records of the police officer. The court ordered production of the cell phone records, unquestioningly more private than messages most likely covered by a statute that declares them to be public records.

More on Quon will come in a second part to this post. . . stay tuned. It's edge-of-your-seat stuff. . . Part 2 will address the ECPA/SCA issue. . .

Fogged Blog

Sorry for not posting more regularly. I was posting to the wrong blog! So, I'm going to post some that I posted to the 'fog' and hope you'll bear with me.

Great Gadget- Livescribe Pen

Hooray for a gadget that not only works, but it is an answer to many prayers. The Livescribe is a smart-pen. It records audio while you take notes. The only drawback is that you have to use proprietary paper from the manufacturer. However, that’s the only drawback I’ve seen so far.

It took about 45 minutes to set the pen up and start to really feel comfortable with it and its features. The time spent getting acquainted with the pen was well worth the investment. It’s a dynamo that I has become my favorite gizmo. I sat through a hearing and recorded testimony while taking notes the first time I used it. When I was driving home, I listed to the testimony again. When I wrote up my report, I touched the pen to the section of my notes where I thought someone said something important and zoom! The pen replayed the audio from that point.

The audio is easy to speed up, slow down, and find. The volume of the recording is excellent. I was sitting about 10 feet away from the person speaking and the pen picked up the audio perfectly. I didn’t miss a word, even mumbled.

But audio isn’t the only excellent feature the pen has to offer. Because you take notes on the proprietary paper, you download your notes when you download your audio to your laptop or desktop. With your notes on your pc, there’s no limit to what you can do with them now.

I love the Livescribe. It would have been the perfect helper in law school. Off the top of my head, I can think of about a million ways it could have made my life easier in school. For a lawyer, the pen can be invaluable- for meetings, depositions, hearings. Imagine- no waiting for a transcript and being able to find the information you want easily and download it to your computer along with your notes! It’s a dream come true that’s as easy to use as it is handy.

All I Want for Christmas Is. . .

Actually, I'm all set. My husband got me a bitchin' livescribe pen that records hundreds of hours of audio and can match the audio to my notes. Not that I really have occasion to use it. I just think it's really cool. Next thing on my gadget list is a pen-sized scanner. That baby will store thousands of pages of text. Go to the library, scan in the content, download to the laptop and you're off to the races! Technology is a wonderful thing. Especially when you compare what we have today with how Alexander Hamilton and Abe Lincoln had to practice- candlelight and a sharp quill was the best they could hope for.

Even though I have all that I could ever want or need, I'll start by saying what I ask for isn't for me. It's for Connecticut law enforcement and the cause of justice. So, since I'm asking for a big cause, I'm aiming high.

1.   The search warrant statute (CGS 54-33c) says that search warrants have to be executed within 10 days. Well, there are many interpretations out there when it comes to digital evidence and other evidence that requires forensic analysis. As I’m sure you know, sometimes analyses take upward of a year. Nobody has launched an appeal in earnest, and nobody’s really squawked about getting their stuff back yet. Besides, often they don’t want to, because there’s child porn on it. . . Nonetheless, it’s something that’s just clearly illegal. The law says 10 days and the police take a year to do the search. Doesn’t take a genius to figure it out. The lab people have always said that they interpreted the law to mean that the search was executed when the evidence was submitted to the lab. That, of course, is not only intellectually dishonest but factually wrong. Especially in the case of a computer search, it doesn’t even begin until the case is cracked and the source is duplicated. I’m not the only authority on the subject. Prof. Orin Kerr, a big guy in the field, shares the view that there are separate and continuing searches and that the traditional 10-day search warrant execution requirement needs to be changed.

One suggestion would be to require that police re-apply for authority to continue the search every 15 days, similar to what’s required for wiretaps. That way, they would have some accountability to the judicial branch for their continued intrusion into the subject’s private property. I think it’s a judicious course to take, especially given that we keep so much of our personal information on our computers. The feds check in periodically on digital exams for this reason. There should be an explicit requirement in CT that for any search that has more than one stage and/or exceeds the 10 day limit that police must reapply for search authority and justify the need for continued custody and search.

2.   The search warrant statute requires that searches be conducted by CT police officers. Well, when police need information from third parties who hold information, such as Internet Service Providers, communications providers, the electric company, credit card companies, etc, they give the search warrant to the company and the company employees conduct the search. Another fiction/lie- the interpretation by law enforcement is that the search is executed when the warrant is handed to the company representative. No, it’s not. In other states, they’ve dealt with the issue by allowing for a ‘special circumstances’ exception for specialized information or circumstances in which the police cannot effectively conduct the search and the statute allows them to rely on the third party data holder to conduct the search.

3.    Many of the third party data holder searches are extra-territorial. The companies and data are located outside of the state. Police have tried to get around jurisdictional limits by serving the search warrant on either the agent for service of process or the secretary of the state. This came from civil/commercial law that allows for this to facilitate legal process for foreign corporations. When it comes to criminal procedure, there’s a dearth of authority on the matter, and in CT, there is a situation in which the judges down in GA 2 refuse to sign any warrants for any evidence located out of state because they believe it is beyond the scope of their authority and jurisdiction. That is absolutely incorrect under any interpretation of the United States Constitution’s Full Faith and Credit Clause, but, hey- that’s what’s going on, and without a statute, this refusal is going to spread like a virus to other GAs and JDs.

4.    Finally, a recent 9^th Circuit case has held that the plain view doctrine does not apply to computer searches (United States v. Comprehensive Drug Testing). That may not seem like a very big deal, but what they’re talking about in the opinion is. It’s a case that came out of the baseball player steroid use investigation, and some of what happened was that the FBI (being the FBI) scooped up a bunch of electronic data under the auspices of a broadly worded search warrant and took it back to the lab for examination. They went through the data and discovered, in ‘plain view,’ a bunch of inculpatory information about baseball players, other than the targets of the investigation, who tested positive for steroid use. The 9^th Circuit Court put the brakes on, saying that the feds overstepped their boundaries by looking at data that went beyond the scope of the warrant. Importantly- the court said that the feds should not have used investigators to do the ‘searching.’ Instead, they should have used unbiased civilian forensic examiners who should have reviewed the data and turned over to the investigators ONLY the data relevant to the investigation and specifically identified in the search warrant.

That holding, if applied to CT cases involving digital evidence emanating from the Computer Crimes folks in Meriden would invalidate more than half of their cases and cast doubt on the others. The National Academy of Sciences put out a report recently that recommended that all crime labs be removed from the supervision of the police to avoid the appearance of and actual bias. The 9^th Circuit decision in Comprehensive Drug Testing underscores that sentiment and makes it a bit more critical to address. The feds chose not to appeal the decision in Comprehensive Drug Testing to the Supreme Court- I’m thinking because they know they’d lose and they don’t have the present ability to make the wholesale nationwide changes that would be required to make their system right.

Legislation should be passed that will remove the lab from state police involvement and supervision. It could be maintained under the DPS for administrative purposes or better placed under the Judicial Branch. Judicial may not be equipped to deal with the additional responsibility, but there’s got to be an appropriate administrative home for it. 

Police Officer Experts in the 2nd Circuit

Now Here's an Interesting Case. . . 

 "Second Circuit Vacates Convictions Due to Improper Admission of "Officer Expert" Testimony

A frequent occurrence at trial is the presentation of the "officer expert" – a police officer or agent who testifies about aspects of a criminal scheme that are outside the experience of a typical juror, such as organizational hierarchies or jargon used by the participants.  The problem with this kind of testimony, as the Second Circuit noted yesterday in United States v. Mejia, 05-2856-cr, 2008 WL 4459289 (2d Cir. October 6, 2008), is that "[w]hen case agents testify as experts, they gain 'unmerited credibility when testifying about factual matters from first-hand knowledge.'"  In Mejia, the Court has given eloquent expression to the defense's objection to such evidence:

[The use of officer-expert evidence] must be limited to those issues where sociological knowledge is appropriate. An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization's hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence. If the officer expert strays beyond the bounds of appropriately "expert" matters, that officer becomes, rather than a sociologist describing the inner workings of a closed community, a chronicler of the recent past whose pronouncements on elements of the charged offense serve as shortcuts to proving guilt . . .

The Government cannot satisfy its burden of proof by taking the easy route of calling an "expert" whose expertise happens to be the defendant.

Facts

Mejia and his co-defendants were charged with various violent acts that supported the notorious MS-13 gang.  At trial, the government presented the testimony of Hector Alicea, a police officer, as an expert witness on MS-13's background, "its history, its presence on Long Island, and its national and international presence; about the gang's colors, hand signs, graffiti use, naming practices, and tattoos; and about its local subunit structure, leadership structure, division of responsibilities, and membership rules."  In addition, Alicea testified to more specific details about MS-13's operations: how they traveled to other states, their attendance at organizational meetings and how they spent money on guns and narcotics.  He also summarized specifics of the investigation, including firarms and ammunition seizures, arrest for narcotics trafficking, and the numbers of murders MS-13 had allegedly committed on Long Island between June 2000 and the trial.  The defendants were convicted on all counts.

Holding

Vacating the convictions, the Court agreed with the defendants' objections to Alicea’s testimony.  The Court found the testimony problematic on three levels (and non-harmless error):

• Alicea testified about facts that were "well within the grasp of the average juror" – such as statistics from the investigation of this case about actual firearms seizures, arrests for narcotics trafficking, and commission of murders.  "No expertise is required to understand any of these facts."  In effect acting as a "case-agent," " [t]hose parts of [Alicea's] testimony that involved purely factual matters, as well as those in which [he] simply summarized the results of the Task Force investigation, fell far beyond the proper bounds of expert testimony."

• Some of Alicea's testimony involved "merely repeating information he had read or heard – information he learned from witnesses through custodial interrogations, newspaper articles, police reports, and tape recordings:"  While experts may rely on hearsay evidence and "analyze" or "synthesize" this evidence, "[t]he expert may not, however, simply transmit that hearsay to the jury."

• Alicea’s testimony improperly communicated out-of-court testimonial statements of cooperating witnesses and confidential informants under the guise of expert testimony, in violation of the Confrontation Clause and the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36 (2004).  Significantly, the Court went on to point out that since Alicea clearly communicated one fact to the jury that he had learned from a co-conspirator's proffer statements (a very specific fact regarding MS-13’s tax policies), "[t]his impugn[ed] the legitimacy of all of his testimony and strongly suggests that Alicea was 'simply summarizing an investigation by others that was not part of the record,' and presenting it 'in the guise of an expert opinion.'"

Comment

This case highlights how cavalier the government has become in presenting officer-expert testimony, to the extent that it, in this case, the government back-doored a co-conspirator's proffer statements through the so-called "expert."  The case is an important reminder of the importance of exploring the basis for this testimony (as the defense lawyers did so impressively here) and objecting to it, while simultaneously providing terrific ammunition in ensuring that that objection is heard.  Practitioners should be especially wary of prosecutors' efforts to end-run the holding in this case, by getting their "expert-officer" to present all his/her improper facts via some bogus "synthesizing" questions."

Excellent blog at http://www.nyfederalcriminalpractice.com/2008/10/second-circuit-vacates-convict.html

So, what does that mean for computer forensics??? Oh my, where do I begin? 

Many times, if not most of the time, the prosecution's expert in computer crimes and electronic evidence cases is that of a police officer, and that police officer is frequently the case officer/principle investigator. This case tends to support the notion that the case officer-as-examiner interjects bias into the mix. It also begins to examine the 'cavalier' approach of the government, which, anybody who has attended a federal trail regarding this topic has seen. 

Police Officer's (Private) Cell Phone Records Discoverable

The New Mexico Court of Appeals recently upheld a trial court that ordered production of a police officer’s personal cell phone records. Although the decision is very fact specific and the discovery order was
narrowly drafted, it provides some insight into where we’re headed with discovery of ESI.

State of New Mexico v Marty Ortiz (2009-NMCA-092, 8/13/09)

Marty Ortiz was arrested for DUI after an officer pulled him over. Ortiz asserted that the officer did not have reasonable suspicion to pull him over and sought evidence to support the claim by requesting all dispatch records, recordings and records of communications related to the stop. The court issued an order compelling discovery of the arresting officer’s personal cell phone records for six minutes time coinciding with sighting the defendant, pulling him over and making the arrest. The state refused to produce the records, arguing the records were not relevant and that they were the private communications of the officer. The court wasn’t persuaded and ordered production. Despite the order, the state did not produce the records and argued that they could not compel the officer to produce the records. The state moved for a  writ of mandamus from the state’s supreme court. It was denied. The trial court granted the defendant’s motion to dismiss the charges with prejudice, citing the state’s failure to produce the requested evidence as "in bad faith and arguably intentionally preventing the trial from moving forward." The Court of Appeals upheld the trial court’s dismissal with prejudice. It’s reasoning is interesting and potentially far-reaching in its effect. The court reasoned that the
officer and whatever he used, did or said (basically) was property of  the state because he was on duty at the time. His communications and records of his communications- whether they were over the police department owned and sanctioned communications system or his personal cell phone- were relevant and therefore, under the state’s rules, discoverable by the defendant.

What does that mean? Maybe nothing. At least until it goes to the New Mexico Supreme Court and the issue comes up elsewhere. What to do in the meantime??? Well, smart attorneys request all the relevant communications and records anyway, and they follow up on it. Here, there were significant sanctions for
the prosecution’s non-compliance. That doesn’t happen a lot in criminal cases, and most places don’t have discovery in criminal cases. However, the defense can still request the records in criminal cases. In civil cases, there is no doubt that discovery includes the records if they’re relevant.  

On the government and civil defense side, police departments and corporations have been telling people for years not to use their personal stuff while working. Does that stop them? Of course not. Has anybody stopped using their personal cell phone on the job? Has anyone stopped using their work cell phone for personal calls? Not until they’re forced to hand over their cell phones that have all sorts of inculpatory emails, contacts and call records that would probably get them disciplined at work or fired and/or divorced or at least in hot water at home. . . . and that could be in the offing fairly soon. . . . 

For more, see, "Are a Cop’s Personal Cell Phone Records Fair Game in Court?" by Charles Remsburg, particularly his discussion relating to officer safety, http://www.policeone.com/legal/articles/1966734-Are-a-cops-personal-cell-phone-records-fair-game-in-court/