×

Police Cite Possibility of Deleted Evidence in Kilton Library Arrest



Valley News Staff Writer
Wednesday, November 15, 2017

West Lebanon — Two plainclothes Lebanon police officers went to Kilton Public Library in West Lebanon last week to interview 18-year-old Jacob Seace about their investigation into what they described as a computer crime, according to police accounts.

Police believed Seace’s cellphone might have evidence pertaining to the alleged crime, according to Lebanon Police Chief Richard Mello.

After questioning, officers asked Seace to hand over his phone and the teenager tried to leave the library conference room where he had been interviewed, according to police.

The two officers apprehended Seace in a manner that raised questions among witnesses about their use of force. He was charged with resisting arrest and obstructing “government administration,” both misdemeanors.

That raised questions about whether the police had the authority to confiscate Seace’s cellphone.

Mello said the officers, who didn’t have a search warrant, had an “exigent,” or immediate, need to take hold of the device. That is one of the exceptions that has been granted by the courts to protections afforded by the U.S. Constitution’s Fourth Amendment, which protects people from having themselves or their effects searched without a warrant issued by a court that has determined there is probable cause.

“Exigent circumstances exist in situations where people are in imminent danger, where evidence faces imminent destruction, or prior to a suspect’s imminent escape,” according to Cornell Law School’s Legal Law Institute.

Because Seace could have destroyed the information or the cellphone altogether, the officers could lawfully confiscate it, Mello said.

Exceptions to the Fourth Amendment’s requirements have been developed over time through court rulings and are open to some interpretation, said George Ostler, a defense attorney who practices in both Vermont and New Hampshire.

“It is a long slippery slope,” Ostler said this week. “In some cases, they make sense — if (police) really have an emergency. But the way it works is, law enforcement will push every exception to the limits. ...When you have these standards, the potential for abuse is very high.”

Albert “Buzz” E. Scherr, a UNH law professor who is president of the New Hampshire Civil Liberties Union, also said the exceptions can lead police to walk a fine line.

“The (exigent circumstances) principle is a good one ... if you have probable cause to search some place,” said Scherr, a member of the ACLU’s national board of directors. “The problem is unless you are careful about how you interpret it, it becomes a huge loophole.”

Neither attorney offered an opinion about whether Lebanon police at the library last week lawfully seized Seace’s device, but rather they talked generally about the process of seizing property such as a cellphone.

First, Scherr said, an officer must have probable cause to believe evidence of a crime exists on a device in order to confiscate it. And that probable cause must be based on more than a “hunch.”

“Police often get it wrong because they want the phone, but they don’t have enough information to arrest (a person),” Scherr said. “So they try to manufacture a circumstance where they can get the phone.”

If an officer seizes a device through exigent circumstances, he can’t look at its contents without obtaining a warrant to do so.

That process starts with the officer writing an affidavit detailing the suspected crime, and the request is ruled upon by a judge.

Officers must be specific, Scherr said. “They have to articulate all of the evidence they have to constitute probable cause to search the location they want to search,” he said. “They can’t say, ‘I want probable cause to search a phone for whatever we can find.’ ”

When it comes to civil liberties, states can be more protective than federal courts but not less so.

For example, both Vermont and New Hampshire laws are stricter than the federal standard that says police do not need a warrant to search a motor vehicle if they have probable cause to believe there is evidence of a crime inside.

In the Twin States, they need a warrant, Ostler said.

So if an officer smelled marijuana, for example, he couldn’t just search the vehicle. If the officer thought there was drugs inside, he would need to seize the car and, similar to the cellphone example, seek a warrant before searching it.

Windsor County State’s Attorney David Cahill spoke of some other exceptions to the Fourth Amendment’s requirement for a warrant prior to a search, including consent and plain view.

If a person under questioning gives consent to an officer to search a cellphone or a vehicle, then the officer can do so lawfully without a warrant.

If a person doesn’t consent but an officer can see a bag of heroin on the front seat of the vehicle, for example, then the officer doesn’t need a warrant.

Another exception is a search incident to arrest, which allows an officer who makes a lawful arrest to search the person and the area around him — both to protect an officer’s safety and to secure evidence.

In a telephone interview this week, Mello, the Lebanon police chief, said he doesn’t believe his officers had probable cause to arrest Seace on Nov. 7 when they first made contact with him at the library.

“If they had probable cause, they would have just gotten an arrest warrant,” he said.

But while interviewing Seace that day, Sgt. Richard Norris and Detective Alan Lowe learned information that gave them the reason to believe that Seace had evidence on his cellphone of an alleged crime, the chief said.

At that point, Mello said, the officers had established probable cause and Seace was no longer free to leave the library with the device.

Exigent circumstances came into play when Seace tried to leave, Mello said.

If Seace hadn’t spoken with the officers, who then would not have been able to establish probable cause, Seace likely would have been able to leave the library that day without incident, Mello said.

No charge has been filed against Seace in relation to the alleged computer crime, but when police issued a news release about his arrest at the library, they said additional charges were possible.

The affidavit in his resisting arrest and obstructing government administration case hasn’t yet been filed in court.

An internal investigation into the officers’ use of force that day has concluded. The investigation found no wrongdoing and Mello said the officers acted “appropriately.”

Since Seace’s arrest, police have applied for and been granted a search warrant to look at his device.

The New Hampshire court system had no record of the affidavit on file on Tuesday. That could mean “the return has yet to be filed or there is a motion to seal” because it involves an ongoing investigation, Mello said.

Although cellphones sometimes are thought to preserve evidence forever, Mello said that “isn’t really true.” A person could outright destroy a phone by submerging or crushing it, or the person permanently delete information.

Lebanon police in December handled a case where a woman sent a remote signal to her cellphone to erase all of the information on the device, Mello said.

“The best procedure is to seize and preserve,” he said.

Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.



Mary Cain, a library patron, recorded this video at Kilton Public Library in West Lebanon, N.H., on Tuesday, Nov. 8, 2017, and posted it to YouTube. Continue reading after the video.