By Kristin Hoffman, Staff Writer
A fire that occurred in September 2016 led to an interesting legal question: Can a person’s medical device, like a pacemaker, be used as incriminating evidence for a crime? This question arises due to the Fifth Amendment protection against a person being forced to incriminate himself.
The fire in question occurred on September 19, 2016 in Hamilton, Ohio. Ross Compton, 59, owned the home where this fire occurred. He told police that on that date, when the fire broke out in his Middletown home, he quickly packed some of his items in a suitcase, busted through the window with his walking cane, threw his things out the window, and rushed out of the house. He also told them that he had a cardiac pacemaker.
A cardiac pacemaker monitors the heart and helps to control irregular heart rhythms. This information is then recorded and stored and can be retrieved for analysis.
Thereafter, the police obtained a search warrant for the electronic data stored on Compton’s pacemaker. After reviewing the data, a cardiologist determined that Compton’s statements about his actions during and after the fire were “highly improbable” due to his health conditions. The Middletown Police used the pacemaker data as evidence to indict Compton; the data collected highlighted inconsistencies in both his statements to the police following the incident and to the 911 operators.
Lieutenant Jimmy Cunningham of the Middletown Police said that the data retrieved from the pacemaker “was one of the key pieces of evidence that allowed us to charge him.” The inconsistencies in Compton’s statements were not the only evidence that led to his arrest, however. There was gasoline found on various pieces of his clothing.
Compton was arrested and charged with felony aggravated arson and insurance fraud for the September 19 fire that resulted in $400,000 in damages to Compton’s home. This case raises an interesting question regarding the intersection between technology and privacy. This question is one that has been analyzed extensively in the context of the Fourth Amendment.
This situation certainly passes a Fourth Amendment analysis. The police obtained a search warrant for the data contents of the pacemaker. When reviewing a search conducted with a warrant, the court will review whether there was a substantial basis for the magistrate to determine that there was probable cause for a warrant. Here, the police had reason to believe that Compton’s statements were inaccurate because of the gasoline found on his clothing, and they had reason to believe that the pacemaker data would contain evidence to rebut his statements.
This case also lends itself to a different analysis, however. The question of whether a person’s embedded medical device, like a pacemaker, can be used as incriminating evidence for a crime requires a Fifth Amendment analysis. This question has been resolved by the Supreme Court in Fisher v. United States, where the Court held that the Fifth Amendment is not a general protector of privacy rights; rather, it only “protects against ‘compelled self-incrimination, not [the disclosure of] private information’.”
In cases where the only compelled act is the production of data, the fact that the data contains incriminating evidence is irrelevant. This means that although the pacemaker was inside the defendant’s body, production of the pacemaker’s data is not a violation of Compton’s Fifth Amendment right against self-incrimination.
Although troubling, a search of data obtained through an embedded medical device of a criminal defendant’s pacemaker can be used to incriminate the defendant of a crime. It is important to note that in this case, the analysis is far easier because the police obtained a warrant before conducting the search. Compton pled not guilty to the crimes charged of arson and insurance fraud. It will be interesting to see how this evidence is used in the trial.
 See U.S. Const. amend. V.
 Man pleads not guilty in case based partly on pacemaker data, Associated Press, Feb. 7. 2017, https://apnews.com/c55eac83846f42e19fb924e57917001b/Police:-Ohio-man’s-cardiac-pacemaker-data-leads-to-charges.
 Ms. Smith , Cops use pacemaker data to charge homeowner with arson, insurance fraud, Newsworld , Jan. 30, 2017, http://www.networkworld.com/article/3162740/security/cops-use-pacemaker-data-as-evidence-to-charge-homeowner-with-arson-insurance-fraud.html.
 Fisher v. United States, 96 S.Ct. 1569 (1976).
 Id. at 1580.