Here’s an Arizona case that ought to get you going, man-accused-of-necrophilia-and-sexual-assault-prevails-in-privacy-case. The particular fact situation is unlikely to be duplicated, anytime soon. However, the search and seizure issue is likely to play out on a daily basis.  Here is a down and dirty description of events.

According to the 10-page opinion, Tucson police were called when the woman, referred to as “D.C.,” was found unresponsive in bed by her daughter. D.C. had been dating the man who lived next door, Robin Peoples, for a few months, and she had invited him to spend the night. The next morning, while Peoples was in the bathroom, D.C.’s daughter, who lived in the same apartment complex as her mother, arrived. When her mother did not respond, the unnamed daughter called 911.

Peoples ran from the apartment to direct paramedics, but inadvertently left his phone behind. Paramedics arrived and began tending to D.C., but soon after pronounced her dead. Peoples “sought solace,” according to the opinion, at a neighbor’s apartment.

The opinion continued:

Tucson Police Officer Travis Mott came to D.C.’s apartment after she was pronounced dead. He looked for information that might identify D.C.’s doctor, hoping the doctor could shed light on D.C.’s recent health and sign the death certificate. He found a “smart” cell phone in the bathroom. Assuming the phone belonged to D.C., the officer turned it on and opened it with a finger swipe to search her contacts (it was not passcode protected). A paused video-image of D.C. on her back in bed, mostly naked, appeared on the screen. The officer pressed “play” and watched part of a video of Peoples having sex with a seemingly unresponsive D.C. Before he watched the video, Officer Mott had been told that Peoples spent the night at the apartment.

It sounds like the police were involved in investigating an “unattended death” or medico/legal death investigation. Such an investigation happens when police do not believe a crime has been committed.  A key factor is the recent medical history of the deceased. The willingness and ability of the deceased personal physician to sign the death certificate could mean the difference between a full blown homicide investigation with an autopsy and a review by the medical examiner and an immediate release of the body to the funeral home. How involved this all gets is dictated by local policy, but it sounds like the cops were trying to do the family a favor by expediting the process.

During a search of the bedroom, the cops found a smart phone that was unlocked.  They didn’t know who the phone belonged to. If it belonged to the victim, the cops may be able to identify the family physician.  Whoever the telephone belonged to had a “reasonable expectation of privacy” that the phone and its contents would not be subjected to a police search, absent “probable cause”.

So the cops are on a slippery slope. If the phone belonged to the deceased, she would be unlikely to complain and her estate would not have standing (the ability to complain). If the telephone belonged to an uninvolved third party, the third party could complain, but if there are no charges against the third party there is no relief. The only person who can complain is the person who owns the telephone who had some degree of criminal liability in the events leading to the death of the deceased.

The police accessed the smart phone and were immediately confronted with a video that appeared to show Mr. Peoples having sex with his paramour. She was not an active participant.  During a subsequent interview, Mr Peoples stated that she was dead and he knew it.  While she was done, he was not.  Thus proving once again that a stiff dick has no conscious.

Needless to say Mr. Peoples lost at trial but prevailed upon appeal when the court ruled that the video and I’m guessing his statements could not be used against him at trial.

I am not an attorney but I think the court got it half right.  I think in a situation where an electronic data storage device come into the hands of the police they ought to be able  access it for purposes of determining ownership. Realistically most police examinations of computers and such are going to be of a two stage nature anyways.  Stage one is an initial assessment at the scene and stage two being the actual forensic examination, under controlled circumstances.