TX6: Two TX DFPS workers’ convictions for “official oppression” for knowingly conducting illegal searches affirmed

This defendant was employed by the Greenville office of the Texas Department of Family and Protective Services. A.K., a 15 year runaway, was captured and taken to juvenile detention. “On A.K.’s arrival, the center’s personnel took A.K.’s personal effects, including a bracelet, a ring, and her cell phone. The subsequent actions of Natalie Ausbie Reynolds, a supervisor for the Department, and Rebekah Thonginh Ross, one of the Department investigators, regarding the seizure and search of A.K.’s cell phone are the basis for this case in which Reynolds has been convicted of official oppression” for willfully conducting an illegal search of A.K.’s cell phone. The DFPS employees are not in loco parentis for purposes of conducting a search of a cell phone. Reynolds v. State, 2016 Tex. App. LEXIS 12672 (Tex.App.–Texarkana Nov. 30, 2016):

Based on precedent and this record, we conclude that A.K. had a reasonable expectation of privacy in her cell phone. Reynolds seems to claim, however, that, because A.K. had been known to use drugs and was allegedly having inappropriate relationships with adult men, that somehow changed A.K.’s expectation of privacy in her phone. Based on A.K.’s alleged behavior and lack of any known placement options at the time, Reynolds contends that she had an urgent responsibility to find A.K. a place to reside until the Department took custody of her and that she believed A.K.’s phone contained useful information that could assist her in that endeavor. Thus, her duty to find A.K. a place to reside overnight, until a court could intervene, amounted to exigent circumstances warranting an intrusion into the contents of A.K.’s cell phone. We need not find whether the proffered exigent circumstances warrant such an intrusion because there is evidence in this record that Reynolds’ motive was contrary to her claim, allowing the fact-finder to find this against Reynolds as well. For instance, (1) a placement facility had been found, yet Reynolds demanded that A.K.’s cell phone stay in the Department’s possession until she arrived the following morning; (2) there was testimony that Reynolds’ motive for taking possession of the cell phone was her desire to look through its contents for evidence of A.K.’s drug use or for contact information relating to alleged drug dealers; and (3) A.K.’s cell phone was never returned to her. Had Reynolds wanted the cell phone for the purpose she claims, she would have had no reason to continue in possession of the phone once a placement facility for A.K. had been located.

A.K.’s cell phone was not seized pursuant to an arrest, and there is no evidence of any warrant, court order, or consent to seize or search A.K.’s cell phone. Reynolds’ claim of exigent circumstances is not compelled by the evidence. For these reasons, we find that Reynolds’ actions were not authorized.

The codefendant was convicted of official oppression for turning a “protective sweep” of a house under exigency looking for a baby into a complete search of places a child could not be. The evidence supports the verdict. Ross v. State, 2016 Tex. App. LEXIS 12673 (Tex.App.–Texarkana Nov. 30, 2016).

Now suppose it was an overzealous cop or narc and not an overzealous child protective services worker? I haven’t heard of a cop getting charged with anything like this in a long time because, in law enforcement, the ends justifies the means and we sure don’t want to chill their zealousness, now, do we?

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