Cops vs Photographers, an interesting comment

[Bob Hubbard]

I track a lot of these stories as most here know. Being a a photographer who enjoys a favorable relationship with law enforcement I try to keep my finger on things as it were. A lawyer made an interesting comment in a recent column.

The question: Can police legally seize your camera as evidence without a subpoena?

We've had a lot of differing replies here in the past. Some said yes, some no, some said with cause, others with warrants, etc.

Common opinion is that police can only seize your camera if it was used in the commission of a crime, or if they have a court order/warrant, or if they are arresting -you-.

But...a 'new' twist is introduced:

However, another attorney I interviewed said officers do have the right to confiscate your camera to preserve evidence.

This can only be done in extreme cases such as homicides, rapes or kidnappings, said Michael Pancier, who not only is a nature photographer, but is representing me in my case against 50 State.

In other words, he is a strong advocate for photographers’ rights.

The alternative (to confiscating camera) is that they detain you until such time as a subpoena is obtained which could be days.

Evidence has to be preserved. If you photographed a murder scene; that's evidence; they can't just let you go and hope that you don't delete it or alter it. If the evidence is not immediately preserved, it may be challenged and may be inadmissible. Likewise, if the evidence is destroyed or lost because it was not preserved; then a whole case whether for the state or the defense may go down the tubes. It's no difference than say if your car got bullet holes as a result of a nearby shooting; or if your purse was recovered by a mugger caught by police; they confiscate it as evidence; all could be confiscated as evidence. No subpoena is required. You'll get it back; but under these circumstances, where you as a bystander have evidence of a crime; it needs to be preserved immediately at the scene. I believe the police have the discretion to confiscate it as evidence.

But again, they can't take it if they are simply pissed that you taped them where no crime has been captured on the tape.

I asked Pancier what is more important, preserving the evidence or preserving the Fourth Amendment and he said preserving the evidence is preserving the Fifth Amendment that entitles a suspect to due process in the legal system. (bolding is mine-Bob)

“When you have a serious crime where somebody can do 25 years to life, then it’s important to gather all the evidence,” he said.

Because that video clip might turn out to be exculpatory evidence, meaning it could prove the defendant’s innocence.

http://www.pixiq.com/article/miami-beach-police-seize-cameras-as-evidence-routinely

"preserving the evidence is preserving the Fifth Amendment"
In all honesty, I never thought of it that way. Which would make the "unreasonable" a bit more 'reasonable'.

 

[Bill Mattocks]

I track a lot of these stories as most here know. Being a a photographer who enjoys a favorable relationship with law enforcement I try to keep my finger on things as it were. A lawyer made an interesting comment in a recent column.

The question: Can police legally seize your camera as evidence without a subpoena?

A subpoena is used by courts to compel witnesses to come to court and testify, or to bring evidence with them.

I think you may be thinking of a warrant.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is clear that police can seize evidence with a warrant. The question is whether or not they can seize evidence without one. In short, yes, they can, but under fairly stringent circumstances. The one that probably applies - if it applies - would be:

http://www.justia.com/criminal/docs/search-seizure-faq.html

Exigent Circumstances. Police are not required to obtain a search warrant if they reasonably believe that evidence may be destroyed or others may be placed in danger in the time it would take to secure the warrant.

http://en.wikipedia.org/wiki/Exigent_circumstance_in_United_States_law

Even in exigent circumstances, while a warrantless seizure may be permitted, a subsequent warrant to search may still be necessary.[5]

Short answer: I don't know. I suspect the police could argue that seizing the camera was required due to exigent circumstances that the evidence could be easily destroyed in the time it would take to obtain a warrant. However, it could also be argued that once they had secured (confiscated) the camera, they could then, and should then, apply for a valid search warrant prior to 'searching' the camera for evidence. The camera would have to be logged as evidence, a chain of custody maintained, the owner given a receipt, and of course, the evidence would have to be returned after it was no longer required as evidence.

I think police would have to be pretty careful about how they went about it to avoid a lawsuit; but that does not mean they could not do it.

I don't buy that Fifth Amendment argument. I'm not a lawyer, but that's just gibberish.

 

[Archangel M]

If I believe that your camera has evidence on it and you are standing RIGHT THERE I will take it and log it into property..from there it will be decided if a warrant will be issued to look at what is on that camera. If I think the camera in your house has evidence on it I will get a warrant. I may pull you out of your house and secure the home till I get it....

 

[Bob Hubbard]

Now I have to question the last part Arch. Am I reading that right? If I'm in my house (as opposed to on my front porch) filming or photographing, you believe you can enter my house -without a warrant-, detain me, and deny me or my family access to the house? If so, how do you justify that? Also, do you know any laws or case law that would validate that?

What if it's a place of business? Can you just walk into say, McDonalds and demand their lot tapes, -without- a warrant?

Clarification sought, in both.

 

[Archangel M]

If I believe you are destroying evidence and can articulate such I don't need a warrant. Thats an exception to the 4th.

If you are in a home with a camera I think has evidence on it I will get a warrant. If I think you may "possibly" be a risk but I can't articulate an immediate need, I will knock on your door then have you step out..or I will wait till you leave for work then not let you back in till I get a warrant. I know "pull you out" sounds like a force my way in statement, but it's actually more a figure of speech. There are numerous ways to secure your house with you outside till I get a warrant.

 

[oftheherd1]

This can only be done in extreme cases such as homicides, rapes or kidnappings, said Michael Pancier, who not only is a nature photographer, but is representing me in my case against 50 State.

As far as I know, it would apply to all felonies. It might also apply to some misdemeanors.

Exigent Circumstances. Police are not required to obtain a search warrant if they reasonably believe that evidence may be destroyed or others may be placed in danger in the time it would take to secure the warrant.

They indeed may if they believe the evidence will be destroyed or removed. But be sure any defense lawyer will challenge it in court and the prosecutor will have to satisfy the judge it meets the standard for exigent circumstances. If it is close enough, it may be necessary to convince appeals judges as well. I have never heard of seizing evidence to prevent danger to others per se. Certainly if an officer seizes a gun within the reach of a person suspected of wishing to imminently use it, he can seize it, but that is just that, protecting life. The fact that it is or may be evidence is incidental. But that may be a valid standard. I haven't been involved in law enforcement for a long time.

Seizing a camera for evidence of photos taken at a crime scene that the officers can also photograph would get a lot of scrutiny. If there was reasonable belief that the person had photographed something that was not available to the police, and the photographer refused to give it to the police for evidence reasons might excuse seizing it.

Evidence has to be preserved. If you photographed a murder scene; that's evidence; they can't just let you go and hope that you don't delete it or alter it. If the evidence is not immediately preserved, it may be challenged and may be inadmissible. Likewise, if the evidence is destroyed or lost because it was not preserved; then a whole case whether for the state or the defense may go down the tubes. It's no difference than say if your car got bullet holes as a result of a nearby shooting; or if your purse was recovered by a mugger caught by police; they confiscate it as evidence; all could be confiscated as evidence. No subpoena is required. You'll get it back; but under these circumstances, where you as a bystander have evidence of a crime; it needs to be preserved immediately at the scene. I believe the police have the discretion to confiscate it as evidence.

I think this would have to be done under exigent circumstances, with the tests I mentioned above. If the police can successfully argue it was necessary, it might be used in court. The arguements about immediate preservation seem to refer to electronic media. That is still an evolving area. However, if the photographer testifies as to what he did, and a forensic expert testifies that would not have altered the evidence, it will be admissible. As far as I know, the old test of a photograph being validated by someone who was at the scene, testifying it accurately represents the scene as that person saw it, will get it into evidence. But again, as I said, I haven't been involved for a long time. I know that used to be a valid test for admitting a photograph.

I'm with Bill on questioning the 5th amendment test. First, the 5th amendment applies to prohibiting coercing self incrimination. My seizing your camera for Bill's defense is not a 5th amendment issue. Also, criminal law in the USA is an adversarial system. Prosecutors are not normally allowed to hide exculpatory evidence they have from the defense. However, if they don't have it they can't be hiding it. And again, I don't think a camera that has photographs the police can also take would be worthy of confiscation as evidence without some very good reason. Neither are police normally required to work for the defense. However, again, I've not been involved for a long time and court decisions may be more stringent.

Mr. Hubbard - is this a lawyer you have engaged?

 

[jks9199]

Of course, I think I'm going to try to get you to consensually provide it and let me download the pictures at the station first... Makes life lots easier that way!

But I can easily justify taking the camera and/or memory card, and holding it while I obtain a warrant. The detention of the item is much less intrusive than detaining your person, and I know that rulings have upheld taking control of houses and vehicles pending a warrant.

 

[Archangel M]

Legal issues regarding securing a premises (and occupants) while awaiting a warrant.

http://www.legalupdateonline.com/4th/810

 

[ETinCYQX]

I'd have issues giving a several thousand dollar camera to a LEO. The card, maybe, but with 800 pictures on it that I might sell 5 each of at $35 a pop, well, that's a pretty significant leap of faith too.

My solution is not to photograph stuff that I think might cause me trouble. If I think I'm doing a good thing by photographing something, I have blank cards for that.

And as far as criminal charges go, I don't photograph anything that breathes unless said breathing thing has not only paid me, but has also signed a sheet stated said breathing thing has paid me.

 

[punisher73]

I had an assault where two guys showed up and jumped another person. One of the assailants girlfriends was there with her cell phone filming the assault. I took the phone and logged it into evidence since it showed the assault/crime happening.

Depending on what was believed to have been photographed or filmed, I think the police would be right in taking it as evidence if they knew that is what was on there.

As a question to the photographers, if you HAD photographed a crime would you volunteer the pictures as evidence to the police or not say anything? If witnesses said that you were photographing the crime and the police asked you about seeing the pictures would you give them the card?

 

[ballen0351]

Sorry for diggin up an old thread but The local news just did a story on filming police and I had a question for Bob. The story basically said police can be filmed anytime and any place if they are on duty. Now they got this legal opinion from the lawyers of the ACLU so its hardly an unbiased source. My question is, and it wasnt address in the news story but what if your filming someone elses arrest someone you dont even know and threw it up on Youtube with out that persons consent? Whats your thoughts on that? What if this person didnt want the footage released? I understand if your recording your own incident but what about others right to privacy? Do you need release forms for subjects you film?
They news story was about a guy that was filming a woman being arrested at the preakness horse race. He wasnt involved in the incidnet and didnt know the woman he just started fiming if the police noticed and took his phone deleated the footage and he did get his phone back later but he now has filed a lawsuit against the police.

 

[Bob Hubbard]

This is a multipart matter.
1- filming or photographing someone in public - In the US, if it's in plain site it's fair game. Other countries laws vary.

Legally, it's pretty much always okay to take photos in a public place as long as you're not physically interfering with traffic or police operations. As Bert Krages, an attorney who specializes in photography-related legal problems and wrote Legal Handbook for Photographers, says, "The general rule is that if something is in a public place, you're entitled to photograph it." What's more, though national-security laws are often invoked when quashing photographers, Krages explains that "the Patriot Act does not restrict photography; neither does the Homeland Security Act."

http://www.popularmechanics.com/tec...taking-photos-in-public-places-is-not-a-crime

See also http://en.wikipedia.org/wiki/Photography_and_the_law

United States
Local, state, and national laws may exist pertaining to photographing or videotaping. Laws that are present may vary from one jurisdiction to the next, and may be stricter in some places and more lenient in others, so it is important to know the laws present in one's location. Typical laws in the United States are as follows:

Public property

• It is generally legal to photograph or videotape anything and anyone on any public property, with some exceptions made for certain portions of military installations that have national security sensitivity.[SUP][38][/SUP]
• Photographing or videotaping a tourist attraction, whether publicly or privately owned, is generally considered legal, unless explicitly prohibited by posted signs.

Private property

• Photography may be prohibited or restricted within an area of property by the property owner.[SUP][38][/SUP] At the same time, a property owner generally cannot restrict the photographing of the property by individuals who are not located within the bounds of the property.[SUP][38][/SUP]
• Photography on private property that is generally open to the public (e.g., a shopping mall) is usually permitted unless explicitly prohibited by posted signs. Even if no such signs are posted, the property owner or agent can ask a person to stop photographing, and if the person refuses to do so, the owner or can ask the person to leave the property. In some jurisdictions, a person who refuses to leave can be arrested for criminal trespass, and many jurisdictions recognize the common-law right to use reasonable force to remove a trespasser; a person who forcibly resists a lawful removal may be liable for battery, assault, or both.[SUP][39][/SUP]
• Entry onto other private property usually requires permission from the property owner.
• Some jurisdictions have laws regarding filming while in a hospital or health care facility. Where permitted, such filming may be useful in gathering evidence in cases of abuse, neglect, or malpractice.

Privacy issues Further information: Privacy laws of the United States

• Members of the public have virtually no privacy rights when they are in public places. Basically, anyone can be photographed without consent except when they have secluded themselves in places where they have a reasonable expectation of privacy such as dressing rooms, restrooms, medical facilities, or inside a private residence. This legal standard applies regardless of the age, sex, or other attributes of the individual.[SUP][citation needed][/SUP]

• Photographing private property from within the public domain is legal, with the exception of an area that is generally regarded as private, such as a bedroom, bathroom, or hotel room.[SUP][38][/SUP] In some states, there is no definition of "private," in which case there is a general expectation of privacy. Should the subjects not attempt to conceal their private affairs, their actions immediately become public to a photographer using an average lens or video camera.

• Many places have laws prohibiting photographing private areas under a person's clothing without that person's permission. This also applies to any filming of another within a public restroom or locker room. Some jurisdictions have completely banned the use of a camera phone within a restroom or locker room in order to prevent this. It is expected that all 50 states will eventually have laws pertaining to surreptitiously filming a person's genitalia. The United States enacted the Video Voyeurism Prevention Act of 2004 to punish those who intentionally capture an individual's private areas without consent, when the person knew the subject had an expectation of privacy.[SUP][40][/SUP] Additionally, state laws have been passed addressing the issue as well.[SUP][41][/SUP]

Commercial photography

• In certain locations, such as California State Parks, commercial photography requires a permit and sometimes proof of insurance.[SUP][42][/SUP][SUP][43][/SUP] In places such as the city of Hermosa Beach in California, commercial photography on both public property and private property is subject to permit regulations and possibly also insurance requirements.[SUP][44][/SUP]
• At the Chesapeake and Ohio Canal National Historical Park, commercial photography requires a permit under certain circumstances.[SUP][45][/SUP] For photography that involves the advertising of a commercial product or service, or photography that involves sets or props or models, a permit is required.[SUP][45][/SUP] In addition, if the photography has aspects that may be disruptive to others, such as additional equipment or a significant number of personnel or the use of public areas for more than four hours, it is necessary to obtain a permit.[SUP][45][/SUP] If a photographer or related personnel need to access an area during a time when the area is normally closed, or if access to a restricted area is involved, the photography requires a permit.[SUP][45][/SUP] For commercial portrait photographers, there is a streamlined process for photography permits.[SUP][45][/SUP] In the case of National Park system units, commercial filming and/or audio recording requires a permit and liability insurance.[SUP][46][/SUP] Still photography that uses models or props for the purpose of commercial advertising requires a permit and proof of insurance.[SUP][46][/SUP][SUP][47][/SUP]
• If a photograph shows private property in such a manner that a viewer of the photograph can identify the owner of the property, the ASMP (American Society of Media Photographers, Inc.) recommends that a property release should be used if the photograph is to be used for advertising and/or commercial purposes.[SUP][48][/SUP] According to the ASMP, a property release may be a requirement in such a situation.[SUP][48][/SUP]

Other issues

• Photographing accident scenes and law enforcement activities is usually legal.[SUP][38][/SUP] At the same time, one must not hinder the operations of law enforcement, medical, emergency, or security personnel by filming.
• Any filming with the intent of doing unlawful harm against a subject may be a violation of the law in itself.

2- posting said photos or video online - Usually legal, with some exceptions.

When you publish (which posting online is) you cross into a different legal realm. The definition of terms like 'artistic' and 'journalistic' sometimes are quite vague, and one risks entering into libel/slander/defamation accusations in some cases.

Police in several jurisdictions are waging war against photographers and videographers, citing outdated wiretapping laws as cause to harass, assault, intimidate, rob and abuse. Most of those cases are dismissed when someone with sense hears the case, but a few have gone against civilians. -Any- situation where one encounters and records law enforcement encounters should be seen as a potential loss of equipment, media and freedom. To offset the risk of destruction of evidence which happens when an officer 'reviews' the footage (with 1 finger 'accidentally' on the delete key), invest in good data recovery software, and go wireless with footage instantly uploaded to a server outside the immediate reach of the 'unfamiliar with that model camera' officer who is camera shy.

Having a good lawyer familiar with the laws said officers are not up to date on, as well as any and all department memos from the last decade or 2 advising cops to not be camera-stupid, is also a good idea as many officers are unaware of the legality of public photography and in some few cases, willingly ignorant of them as cases in NYC, Miami and LA have shown.

http://gizmodo.com/5553765/are-cameras-the-new-guns


See also http://www.krages.com/phoright.htm

For some information on protecting yourself, as well as where high-risk areas are in the US, see http://www.copblock.org/cameramap/.
While I don't agree with a fair amount of the groups opinions, the encounter stories are a worthwhile read, as are other blogs such as Carlos's (though the commentary at times is also quite clueless).

See also “How to Record the Cops.”

As I've said numerous times, most (98%) cops in the US are decent, hard working folks doing a dangerous and often thankless job. It's the 1-2% that fall into the 'bad cop' category that makes life a pain for them and us. The majority of LEO encounters happen without incident as even my BS traffic stop this summer in Texas at a 'revenue enhancement stop' showed. (I got a bill, but was back on the road in 5 minutes without hassle because I wasn't a jackass to the cop). While I support the recording and broadcast of -all- public servant and official encounters, there is a difference between passive and being obnoxious about things. To the LEO's reading, any cop-contempt you see in my words is aimed soley at the asshats in blue who think the law doesn't apply to them and that a badge is a license to bully.

 

[Carol]

Oh, one other thing, Ballen.

According to NH RSA 1493 81-9:
If you wear a kilt,
in the official New Hampshire state Tartan,
on a Segway,
at a Scottish festival,
on a ski resort,
having a conversation with a lady about donuts (I kid you not)....

you WILL be photographed. By me.


Lincoln, NH Police Officer wearing official state tartan by Sikaranista, on Flickr

OK, I lied, there's no such law. Just great community outreach by the Lincoln PD :asian:

http://www.lincolnnhpd.org/outreach/kiltsforcops.htm

 

[jks9199]

Carol... Don't give my chief any ideas! Actually, since the jurisdiction did that sister city thing with somewhere in France... we'd probably have to wear berets. And be obnoxious to people.

OK, maybe we can handle the obnoxious part!

 

[Carol]

Carol... Don't give my chief any ideas! Actually, since the jurisdiction did that sister city thing with somewhere in France... we'd probably have to wear berets. And be obnoxious to people.

OK, maybe we can handle the obnoxious part!

You could tell your chief that you're willing to meet him halfway. You'll take on the obnoxious part for now, and then address the Beret matter when the sister city agreement results in a 3 day long festival that provides a tremendous amount of oomph to the local economy. Half now, the rest later. Segway optional

 

[Tez3]

Depends where in France, many French people don't regard themselves as such primarily. Places like Brittany (whose people are Celts), Normandy (descended from the Vikings), Burgundy, Provence, and of course the Basques see themselves as French secondly. They are all nice people btw, not at all rude, for that you have to go to Paris. Everyone outside Paris agrees that Parisiens are the rudest people anywhere.

 

[ballen0351]

Thank You Bob I knew if anyone knew the answer it would be you. As for the kilt on the segway. I wouldn't be caught dead on a segway. The purple kilt would work shows my Ravens support.

 

[Buka]

I've been on details covering high security areas (public streets around said areas) during the years following 9/11. We confiscated many a roll of film- for taking shots that showed certain security features of certain buildings - always after politely informing the people who took the pics that we needed to take their film. They always complied. Thank God, because if they hadn't we would have had to let them walk, and taunt us if they wanted to.

Not always easy wearing a badge.

 

[Carol]

I've been on details covering high security areas (public streets around said areas) during the years following 9/11. We confiscated many a roll of film- for taking shots that showed certain security features of certain buildings - always after politely informing the people who took the pics that we needed to take their film. They always complied. Thank God, because if they hadn't we would have had to let them walk, and taunt us if they wanted to.

Not always easy wearing a badge.

No indeed.

But not all of us photogs have a bad attitude towards LEOs either.

On a bitterly cold (subzero) day, I had been snowshoeing on the AT and was dragging myself back in to town for dinner. The police officer that I captured on the Segway...he was on traffic duty standing in the middle of the Kancamagus Highway trying to control the crush of traffic leaving the ski resort. The fellow was bundled up heavily but...he looked damn cold. It would have been a compelling photograph, but just as I was thinking about pulling over, a blast of cold air seemed to double him up like he got kicked in the gut. I didn't take the photo. I couldn't. I don't have it in me to photograph someone suffering, especially the emergency workers that have to be out in the elements no matter how cold or how hot.

But having a decent day on patrol at the NH Highland Games, that's a whole 'nother matter