Convicts could pay for cell phone searches under lawmaker proposal

People convicted of crimes based on evidence from their cell phones, tablets or computers may soon pay an additional fee to help fund the detectives who sifted through their digital lives.

Senate Bill 54 would tack on up to $95 in fees for cases that hinge on digital investigations. During Tuesday’s Senate Judiciary Committee hearing, law enforcement officers told lawmakers that such investigations are becoming a larger part of their workload.

Since 2015, the price of the digital tools used to look through cell phones for evidence has increased more than 100%, according to Brent Gromer, the former commander for South Dakota’s Internet Crimes Against Children (ICAC) Task Force.

Gromer spent nearly two decades working ICAC cases, and “every year in that role, we saw an increase in the number of digital examination requests that we saw from law enforcement.”

There’s not enough money to pay for all that work, he said.

“Nearly all the funding that is used to conduct digital forensic examinations in the state of South Dakota is borne on federal grants, and that funding has stayed fairly flat since about 2008,” Gromer said. 

Digital investigations require powerful computer systems, he said, as well as specialized annual training for digital forensics experts. He told lawmakers that the 2,000 or so statewide investigations involving digital evidence annually cost roughly $192,000 a year, and estimated that each ICAC digital investigation averaged $425.

“We’re not getting anywhere close (with $95), but this is an opportunity to hopefully stem that tide a little bit,” Gromer said. 

Digital investigations have traditionally centered around crimes against children, where perpetrators target and groom their victims through text or messaging services. But more crimes now have a digital component, according to current ICAC Commander Toby Russell, including drug trafficking, assaults and murders, vehicular homicides or burglaries.

“Virtually every crime committed has a digital evidence component of one form or another,” Russell said. “If you look at the national news right now, we have the homicides in Moscow, Idaho. We have a missing wife in Massachusetts. Both of those investigations were impacted and aided by digital evidence.”

Committee members were broadly supportive of the need for a new funding stream, though there was debate over the size of the fee and the appropriateness of collecting it from defendants. 

In response to a question from Sen. Mike Rohl, R-Aberdeen, Russell said the $425 price tag was an average, not an actual cost, which varies from case to case. Sen. Brent Hoffman, R-Sioux Falls, questioned why the bill wouldn’t levy the entire cost of a digital investigation as part of a criminal conviction.

Sen. David Wheeler, R-Huron, said he could not support the proposal, citing the potential impact on the fees already attached to convictions. Many defendants lack the means to pay restitution or fees already and often see their fines reduced by a judge as a result, Wheeler said. An additional fee might end up reducing the overall amount a defendant is able to pay in fines and fees, some of which is used to pay for schools.

“This is an attempt to fund law enforcement general activity by assessing a made-up fee to the defendant,” said Wheeler, who argued that the Legislature’s budgeting panel, the Appropriations Committee, ought to take up the matter.

Rohl successfully moved to amend the bill to allow judges the discretion to impose the digital investigation fee, rather than requiring it. The amended bill passed 6-1, with Wheeler as the lone no vote.