Permitting a man’s pacemaker data to be used as evidence in a Butler County arson case is just the beginning of how data created and stored by technology will become more sought after by law enforcement and prosecutors, according to legal experts.
Defense attorneys say the rhythm of Ross Compton’s beating heart is private and shouldn’t be used to incriminate him in a criminal case.
But prosecutors say data taken from the pacemaker implanted into the 59-year-old’s chest is fair game, just like blood samples, DNA and even cell phones — as long as police have a valid search warrant.
“In the future, everything that records data is going to be something law enforcement and prosecutors are going to look at quite closely,” said University of Dayton law professor Jefferson Ingram, who has taught criminal procedure for 39 years. “To prove guilt or even innocence.”
Compton is scheduled to stand trial later this year on charges of aggravated arson and insurance fraud. At that trial, prosecutors will be permitted to use information downloaded from his pacemaker as evidence against him.
Compton was indicted in January for allegedly starting a fire in September 2016 at his Court Donegal house in Middletown. The blaze caused nearly $400,000 in damages.
Middletown detectives said Compton gave statements that were “inconsistent” with evidence collected at the scene.
Compton, who has extensive medical problems, including an artificial heart implant that uses an external pump, told police he was asleep when the fire started. When he awoke and saw the fire, he told police he packed some belongings in a suitcase and bags, broke out the glass of his bedroom window with a cane, and threw the bags and suitcase outside before taking them to his car.
Police then obtained a search warrant for all of the electronic data stored in Compton’s cardiac pacing device, according to court records.
The data taken from Compton’s pacemaker included his heart rate, pacer demand, and cardiac rhythms before, during and after the fire.
A cardiologist who reviewed that data determined, “it is highly improbable Mr. Compton would have been able to collect, pack and remove the number of items from the house, exit his bedroom window and carry numerous large and heavy items to the front of his residence during the short period of time he has indicated due to his medical conditions,” according to court documents.
Defense attorney Glenn Rossi, who argued in court this past week that the pacemaker evidence should be thrown out, said taking such data as part of a legal case is “unheard of” and this case may be the first of its kind nationally.
“They have never done this before,” Rossi said, adding, “Is the level the government is going to go to? Seizing the information from a beating heart?”
Rossi argued that the search was an invasion of Compton’s constitutional rights and unreasonable seizure of his private information. He also claimed the process was invasive for his client, who was told by police that if he didn’t comply, he would be put under arrest for non-compliance.
Chis Carr of Medtronic, the company that makes the pacemaker embedded into Compton, testified about the procedure to retrieve the data.
The patient’s skin is not pierced, according to Carr, and downloading the data takes 90 seconds to two minutes.
Rossi added the data is personal to his client because he is the one with a pacemaker, unlike like blood samples — because everyone has blood — that can be taken routinely by police.
“It is just fundamentally unfair to say to a person the functioning of your body and the record of it related to illness that you have … is something that the government should then be able to take and use to incriminate a person,” Rossi said.
Assistant Butler County Prosecutor Jon Marshall pointed to instances where after obtaining a search warrant, police can seize different data, medical records and even blood samples for use as evidence in criminal cases.
Police and the government have long been allowed to get personal data from people after obtaining a search warrant.
“Some of that most personal data is from a phone. The most personal, and yes embarrassing, data can be downloaded after a search warrant is obtained. That has long been allowed,” Marshall said.
In the end, Common Pleas Judge Charles Pater ruled against the defense.
“The question is, is that information so private that the state should be precluded from getting that kind of information,” Pater said.
Pater said just because the pacemaker data is individualistic to Compton, doesn’t mean it is more private than other things.
“There is a lot of other information about things that may characterize the inside of my body that I would much prefer to keep private rather than how my heart is beating. It is just not that big of a deal,” Pater said.
Lance Salyers, a former assistant Butler County prosecutor, said he likens the pacemaker data in question in this case to fingerprints that are routinely lifted without a warrant from crime scenes.
“It is using your own body against you,” Salyers said.
Technology is a new frontier for law enforcement, he said, and in the future everything from Fitbit data to an Amazon Echo, will come into play in a crime investigation and case preparation.
“At the end of the day, it is all data. More data makes for better decisions in cases,” Salyers said. He added it sometimes takes the law a while to catch up at technology advances, so permitting use of pacemaker data is an advancement for the legal profession.
“A person who has a pacemaker should be aware it is collecting data,” said Ingram, the University of Dayton law professor.
Data from all devices will likely be a part of criminal investigations and legal cases in the future, he said.
“That is what is in the future that criminals have to be aware of,” Ingram said.