Judge: Police made illegal search of officer’s phone records

GREENFIELD — A judge has ruled Indiana State Police detectives acted illegally when they downloaded 71,000 text messages from a Greenfield police officer’s cellphone during a 2014 investigation.

Without those text messages — which police say show then-Lt. Terry Austin offering $200 to two women to have sex with Austin’s friend — there is little evidence left in the promoting prostitution case against the former shift supervisor.

The text messages were downloaded when detectives were investigating a bribery case against Austin.

Hancock Circuit Judge Richard Culver said the issue was not whether police legally obtained the cellphone — a search warrant allowed them to seize Austin’s phone after he was accused of bribing his fellow officers to pull over his ex-wife and tow her car — but that detectives went beyond the scope of the warrant by downloading the entire contents of the device.

“There is no evidence the Indiana State Police could not have conducted a limited search … and only downloaded text messages to and from telephone numbers associated with (the bribery case),” Culver wrote in his ruling.

Austin was convicted in the bribery case last year after a brief trial and was fired from the Greenfield Police Department shortly thereafter.

He is currently serving a year on home detention.

County Prosecutor Brent Eaton said he has reached out to the Indiana Attorney General’s Office for advice on an appeal of Culver’s decision, but he acknowledged the blow to the case.

If Culver’s ruling stands, the state could be forced to drop the Class C felony charge.

Because the text messages were discovered as the result of an illegal search, they are “fruit of the poisonous tree” and cannot be retrieved through a new search warrant, Eaton said.

Austin said his privacy was violated when investigators went through his personal messages, which he said contained intimate conversations taken out of context by Greenfield police detectives, who conducted the investigation jointly with state police.

“They had no business reading any of it,” he said. “These were private messages between me and a girlfriend.”

Investigators have said they stumbled upon the messages when a search for “$200” pulled up texts from two different conversations — one about a steak dinner and one with a request for sex for a friend who was visiting Austin from out of town.

The downloading of Austin’s phone contents had a ripple effect throughout the department. At least two other officers were suspended based on text conversations they had with Austin.

Austin’s legal woes began in April 2014, when a dispatcher accused him of bribing at least three fellow officers with a $200 steak dinner if they would pull over Austin’s ex-wife and tow her car.

In a two-day trial late last year, Austin’s attorney, Bob Elsea of Greenfield, argued Austin was only asking officers to punish a lawbreaker — Austin’s ex-wife was driving with a suspended license at the time — and rewarding them for doing so. But a jury found the officer guilty of two felonies, bribery and official misconduct.

It was the first of three criminal cases filed against the officer in four months. The promoting prostitution case was filed in June. Two months later, Austin was arrested a third time and charged with drunken driving.

The motorcycle Austin was riding in the 9500 block of North County Road 600W nearly sideswiped a passing police car, prompting the officer to pull Austin over and give him a breath test. The test registered Austin’s blood alcohol content at .12 percent, over the legal threshold of .08 percent.

Austin pleaded guilty this week to operating a vehicle while intoxicated. He will serve a year’s probation, and his driver’s license will be suspended for 90 days.

Austin’s sentence was not enhanced because of his criminal history, Eaton said, because the legal standard is to examine prior convictions on a person’s record at the time they were arrested.

When Austin was arrested on the drunken-driving charge, he had not yet been convicted.

“You do not have a history of substance-abuse crimes here,” Eaton said.

Austin is appealing his conviction in the bribery case. He is represented by John Tompkins of Indianapolis.

Noelle Steele is editor of the Greenfield Daily Reporter. She can be reached at 317-477-3232 or nsteele@greenfieldreporter.com.