PROVO — Were officials at Brigham Young University acting as agents of the Utah County Attorney's Office when they investigated the embezzlement of hundreds of thousands of dollars?
That is the question raised by a former BYU finance officer charged with using a defunct corporation as a shell to allegedly steal more than $306,000 from the LDS Church-owned university. John Davis is charged with one count of racketeering and seven counts of theft, all second-degree felonies.
In a motion to dismiss filed in 4th District Court, Davis and his attorney, Craig Snyder, argue that because BYU officials were working with campus police and the Utah County Attorney's Office, they were involved in a criminal investigation. That means, Snyder argues, that BYU officials failed to obtain needed search warrants to confiscate Davis' office computer and his files.
Prosecutors are fighting the motion.
According to the motion, BYU police were involved in the internal investigation beginning in early May 2001. The motion says that at the same time, "Davis was frequently told by different BYU employees that there was no criminal investigation."
In June, Utah County Attorney Kay Bryson met with BYU officials about an alleged theft of funds by Davis. Davis' work computer was turned over to a county investigator without a search warrant being issued, and other exchanges of evidence were also made without a search warrant, Snyder wrote.
Snyder claims Davis' 4th Amendment right against unwarranted search and seizure by the government was violated because BYU officials were acting as agents of the state during the criminal investigation.
"Any evidence obtained by BYU in the course of its investigation was obtained by BYU as an agent for the county attorney's office and is thus subject to the prohibitions and restrictions of the Fourth Amendment," Snyder wrote.
Davis, who worked as BYU's supervisor of collections, used a company called RCM (Regional Credit Management) to funnel university funds to a bank account under the company's name between May 1995 and May 2001, according to the state's allegations.
When BYU accountants conducted an audit, they discovered a series of checks written by Davis to RCM.
Davis' wife Carol was also charged in the initial complaint, but a 4th District judge determined prosecutors had insufficient evidence to show that Carol Davis knew what was going on.
Deputy Utah County Attorney David Wayment said Snyder's claims are off base because Davis' computer and files are the property of BYU, not Davis.
"They didn't need a search warrant," said Wayment. "It wasn't needed because BYU owned the computers."
As for the 4th Amendment issue, Wayment argues that the issue of search and seizure only involves agents of the government. Because BYU is a private institution, it does not apply.
"It only becomes a 4th Amendment issue if (BYU auditors) were our agents," Wayment said. "They weren't our agents."
Wayment said he is not concerned about computer evidence being tossed out because there are bank transaction records showing the checks written by Davis to RCM being deposited into his personal bank account.
Judge James Taylor has taken the motion under advisement and will issue a written ruling.