By Carlos Miller
Seconds after BART police officer Johannes Mehserle shot and killed Oscar Grant, police immediately began confiscating cell phones containing videos that have yet to see the light of day.
In fact, the only videos that have been seen by the public were filmed by people who managed to leave the scene before police confronted them.
In one instance, police chased after Karina Vargas after she stepped on the train, banging on the window after the doors closed and demanding her to turn over the camera. The train sped away with Vargas still holding her camera.
Her video, which did not show the actual shooting but captured the turmoil before and after, was one of the first to pop up on the internet. And soon after more videos popped up showing the actual shooting.
In the most vivid video, the train doors can be seen closing seconds after the shooting as the train speeds away.
But the truth is, police had no legal right to confiscate a single camera.
“Cops may be entitled to ask for people’s names and addresses and may even go as far as subpoenaing the video tape, but as far as confiscating the camera on the spot, no,” said Marc Randazza, A First Amendment attorney based out of Florida and a Photography is Not a Crime reader.
Bert P. Krages II, the Oregon attorney who drafted the widely distributed The Photographer’s Rights guide, responded to my inquiry with the following e-mail message:
“In general, police cannot confiscate cameras or media without some sort of court order. One exception is when a camera is actually being used in the commission of crime (e.g., child pornography, counterfeiting, upskirting).”
It didn’t appear that the BART videos were being used in a commission of a crime, so what could people have done to prevent police from illegally confiscating their cameras?
“Probably not a whole lot,” said Randazza. “You don’t want to get into a situation where you are refusing to comply with law enforcement, especially when that law enforcement officer just shot and killed somebody. No camera is worth losing your life over.”
But what can you do if you’re as stubborn as me and have a tendency to refuse unlawful orders?
“Make sure you have an attorney that specializes in First Amendment law,” he said during Monday’s phone interview. “Make sure you have his cell phone and home number. Sometimes calling an attorney on the spot can be helpful.”
Needless to say, I now have Randazza’s cell phone number programed into my cell phone.
-30-
I am a multimedia journalist who has been fighting a lengthy legal battle after having photographed Miami police against their wishes in Feb. 2007. Please help the fight by donating to my Legal Defense Fund in the top left sidebar. And feel free to join my Facebook blog network to keep updated on the latest articles.
You can also purchase Krages’ book on photographer rights that is listed in the right sidebar and help this blog in the process.
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Might want to write down that lawyer’s number in your wallet instead… if the cops take your phone, you’ve got a bit of a chicken/egg problem.
Good point, but I don’t have a camera on my cell phone, so it won’t be what they confiscate.
Just ask them for 5 minutes to back up your numbers and then upload it to YouTube!
“One exception is when a camera is actually being used in the commission of crime”
In the BART case I think they might have had a reason for taking the cameras, those kids where recording a snuff film…
I think a good internet movement would be to pressure legislatures to make it a criminal offense for police to interfere with the legal video taping of arrests. Legal being from a safe distance.
Perhaps if there were actual consequences for them, we might reduce this problem.
Wow, I’d like to see some stupid cop try to take my camera away from me!
RT
http://www.privacy-web.us.tc
It’s good to know that alot of young people have enough street smarts to not hand their cellphones over to the police. I think they did the right thing by posting their BART videos on youtube. In America it’s sad, but that’s the only way to be sure that the truth gets out. The police would have destroyed the most damning evidence against Mehserle.
My only fear is that a jury won’t have the good sense to realize that if someone is fleeing from the police to protect evidence of wrongdoing that it doesn’t matter what the law says, the person is doing what’s right and good for their community.
if they decide to just swipe your camera, why would they not also take your celly for no reason at all?
“One exception is when a camera is actually being used in the commission of crime”
In the BART case I think they might have had a reason for taking the cameras, those kids where recording a snuff film…
…very funny post
So is there any legal recourse if your camera equipment is illegally confiscated?
Even with a snuff film as the argument, they still have to go through the process of asking the courts for the camera.
>Even with a snuff film as the argument, they still have to go through the process of asking the courts for the camera.
Not if they believe you might “destroy” or otherwise tamper with the evidence.
Carry an extra, blank CF card in your pocket. When the cops ask for your pics, hand ‘em the blank one.
Seems like the BART officers wanted to cover any incriminating evidence up to help their fellow officer. I would have just run. =]
but if the cops are doing something illegal, like to try and take my camera to cover their butts, don’t i have the legal right to protect my property, by force if necessary?
i think that’s the problem, everyone is just too darn willing to lay down and take it instead of fighting back. (and yes i realize someone was shot not 10 seconds before, I’m just putting the question out there.)
Signs are posted that you are not allowed to take pictures of public transport, airports, bus stations… things like that since 9/11.
While I think that’s a stupid rule, I think they have the authority to do so…
“But the truth is, police had no legal right to confiscate a single camera. “Cops may be entitled to ask for people’s names and addresses and may even go as far as subpoenaing the video tape, but as far as confiscating the camera on the spot, no,” said Marc Randazza, A First Amendment attorney based out of Florida and a Photography is Not a Crime reader.” … destruction of evidence to a crime is a crime unto itself … when police officers steal, ahem I mean confiscate, video evidence to a crime that they are responsible for – such as police brutality, or murder as in this case – they should be held accountable … the only time a police officer can confiscate cameras is if there is evidence to an ongoing criminal investigation — and only after giving a receipt for that camera, so as to return the video evidence after a copy of the evidence is made …
cops don’t care about anyone but themselves, their fellow cops, and their immediate families. most cops seem to join their line of work because they are controlling, power thirsty people, and being a cop gives them that power/control that they’ve sought after their whole lives…
…knowing this, i avoid police WHENEVER physically possible. any time i am ever anywhere that is public, i do a scan to see if there are any cops, and if there are i make sure they stay a good distance away from me. i’m not a fugitive or anything, lol, its just that i’ve been in one too many situations with the police where i did NOTHING wrong and ended up in jail with charges for crimes i didn’t commit. cops are tricky bastards, i encourage everyone to watch their backs…
I wonder what resource you have, if they actually taken your camera.
I got confronted by police when photographing at the vice presidential debate. I was carrying valid media credentials (issued by the commission on presidential debates) and was photographing the sat trucks on the field.
I was told to delete the photos, and when I refused to comply unless given a reason, I was stuck in handcuffs.
20 minutes later I was released after agreeing to delete the images.
good for you. If I had money to spare I would donate it to you.
Velkum to Soviet Amerika. Papers pulez
I recently found your blog and really enjoy it. Thanks for doing this blog. This whole trend of law enforcement being against photography really gets under my skin and I like to hear about who is fighting that and related stories. Keep up the great work.
~1auren
photographer, moblogger.
In some places it is illegal to make an audio recording of someone without their knowledge. Police could confiscate a camera if they believe that crime is being committed.
Great post Carlos. So many people need to read this. I can only imagine how many times police have unlawfully looked through a camera or confiscated a camera and deleted images without a search warrant.
Last time I checked my camera took pictures and didn’t capture audio. That’s what my camcorder is for
This is a temporary problem.
I doubt cops will even bother once everything saves directly to net in realtime…
This can be a problem as they will lie and fabricate evidence to justify there actions. Lucky most of the ones doing this are a little on the dumb side and can be fooled and discovered. All though not always.
I use Nikon and am thinking of getting a WT-4 xmtr ( good for apx 300 yards ) and linking to a remote storage site. Now lets see them delete.
wow
a homicide has occurred but people do not wish to assist the police & turn over photographic evidence of the crime – obviously you people want to help the shooter, because without your pictures or vid, he may not be convicted – the more people who turn over pictures, the more evidence is obtained, the better the chances of conviction
so, what, you run home, post the vid on YouTube, what next?
YouTube will try the shooter?
people, there’s a legal precept called chain of custody
the longer evidence is out of the hands of police, the harder it is for prosecutors to use that evidence
the vid is posted on YouTube, it runs on CNN, yada yada yada, there are 8 million copies all over the world, but which one is the original? how do you prove it hasn’t been tampered with? yes, geeks can prove that, but defense attorneys can easily confuse a jury into thinking it’s been tampered with
a really sharp defense attorney might be able to have the vid ruled inadmissible
(thank goodness there are entirely lawful, non-violent ways for police officers to obtain photographic evidence of a homicide at the scene from a reluctant witness who refuses to turn over his cellphone camera)
I think it depends on the situation….if the photographs will help solve a case, investigation, murder, homicide, kidnapping, hit and run case, and/or any other legal issue then yes. They should be allowed to confiscate.
Arizona Attorney,
You believe they “should” but are they legally allowed to confiscate cameras without a court order?
My whole issue with this is not necessarily that the cops might want to use one of my videos or photos for evidence, it’s just that they want to take it from me completely.
If they tell me they want to download my video, I might consider it but I will insist on going home with the video and I will post it online if I want to.
I’m a journalist but I don’t work for a major news company (although I worked in the Az Republic for four years).
If a journalist from a major media organization captures something on video, there is no way that company will allow that video to be confiscated.
And the truth is, journalists do not have any more privileges under the law than non-journalists. They just might know the law better when it comes to these things.
I believes this also comes down to copyright violations.
if someone has pictures or a vid, he’s more than a photographer – he’s a material witness
police may detain a material witness at the homicide scene for questioning – the witness will also be asked to surrender his photographic evidence at the scene – depending on the medium, that may also include the device itself if it’s a cellphone camera etc. that does not have removable memory
depending on the jurisdiction, the photographer may not be able to refuse this request – at a minimum, if he refuses he will be held until the proper judicial order is obtained compelling surrender of the images – he will also not be able to touch the camera or cellphone while that judicial order is being obtained (he will either do this voluntarily or will be handcuffed so he cannot)
this is a chain of custody matter – the police & detectives on the scene will make certain chain of custody is maintained, part of the reason a surrender request is made
if the person is a private party, he will be released at some point but the images will remain behind – he or his employer will not be able to exploit, publish, or upload the images until returned to him by the police
one other thing, depending on your jurisdiction, you could be charged as an accessory after the fact for failing to provide police with the photographic evidence upon request – you would be considered an accessory because by refusing to provide the photographic evidence, you are aiding the accused in avoiding prosecution
Most cops are just nazi thugs, sometimes the worst criminals in society.
Whilst this is a sticky subject, as “Officer Brad” suggested, the police will use “evidence of a crime” as raison d’etre to ‘legitimately’ confiscate even if you think you’ve not done anything wrong; not much can really be done about that unless you yourself want to get arrested – which seems to be happening all too often these days to journos.
If you do get a request and they want your gear best thing to do is make sure that the ticket onto which they write your details also records the serial number of the camera and the media, that way you have some form of accountability and proof the gear was indeed taken… “camera? what camera?”.
When a public servant threatens to take your camera or any property of yours, but especially a camera that you just used to film their illegal activity/tyranny- that’s a violation of your rights as enumerated in the 4th Amendment, and therefore you have a right to immediatly invoke the SECOND AMENDMENT!
If enough sheeple out there would wake up and get some b@ll$ and stand up for their rights like they should, the piggies will back down and start adhering to the Constitution.
I don’t have a problem with giving police a COPY of a video or picture taken on a camera to help in the investigation. What I do have a problem with is leaving the sole source of evidence with the police.
U can delete the videos and photos, if they are saved on an SD card or something equal.
Then u go home and use some UnDelete programm (like http://www.recuva.com) to restore them. Try it. It will work on most cameras and cellphones.
People should videotape police whenever they feel like it and post it online. Police should know they are being watched.
Most cops are just nazi thugs, sometimes the worst criminals in society..
NO, UNDER US LAW, POLICE NEVER HAVE THE RIGHT TO EITHER CONFISCATE YOUR CAMERA, NOR YOUR FILM / VIDEO, WITHOUT COURT ORDERED SUBPOENA
HOW DO I KNOW?
I AM 30 YEAR VETERAN PROFESSIONAL TV NEWS CAMERAMAN. MEMBER OF IA 600, INTERNATIONAL CINEMATOGRAPHERS GUILD, (AFL-CIO)
NEVER GIVE YOUR CAMERA NOR VIDEO UP VOLUNTARILY.
STAND YOUR GROUND, ASK FOR THE COPS NAME AND BADGE NUMBER AND POLITELY REFUSE.
IF ARRESTED, ASK FOR A LAWYER AND POLICE SUPERVISOR IMMEDIATELY.
NEVER GIVE UP YOUR VIDEO.
PERIOD.
ACCESSORY AFTER THE FACT IS BOGUS.
NO SUBPOENA, NO HAND-OVER.
BETTER YET, HIDE IT AND GIVE A BLANK.
ALWAYS.
I’ve been ARRESTED for taking photos. I know, it sucks. But I know I was right and they even acknowledged it.
Officer Brad,
Why would someone refusing to hand over a video to a cop being video taped while the cop was in the commission of a crime be aiding the accused (cop) in avoiding prosecution? Seems like they would be doing the exact opposite, especially if the video later made its way on the Internet.
I’ll tell you the reason that many of the police think that they have all this extra power. It’s shows like CSI and NCIS. I love these as much as the next guy, but when they go in and demand something, they always get it. So people think that in real life you have to. And some cops thinks that it means in real life they have that authority.
Oh and Chuck, I think your caps-locks key is broken. You might want to get that looked at.
Scott,
That Chuck is a different Chuck than the one who has been telling stories about Alaska.
So maybe he keeps the cap-lock on to differentiate himself from the other Chuck.
Ah, I see.
Sorry Chuck.
Of course he can always unlock the key when we writes the actual post. But I guess he wanted to stress a point.
And he is absolutely right in what he says.
Officer Brad,
I just realized your Jan 23, 2009 at 5:03 PM comment was held in moderation. I don’t know why but I just approved it.
The problem with completely turning over video to the police is that there is a chance it will wind up in the memory hole.
Also, the more copies of the video that are out there, the harder it is to tamper with. If police have the only copy available, then that can be easily tampered with and nobody would know the better.
And yes, in a perfect world, we would be able to trust police to not tamper with the evidence but we’re not living in a perfect world.
But if you have 8 millions copies, as you say, it would be impossible for police to tamper with that evidence.
I really don’t understand how a judge would accept a defense attorney’s argument that a video would be inadmissible if it clearly shows a crime being committed.
Besides, we’re talking specifically about police confiscating videos in which they are not painted in the best light.
For example, check out this video of the NYPD basically going berserk on anybody with a camera during a critical mass ride in Times Square.
There are actually two videos from two different occasions but they show a clear pattern of abuse that would never have made the light of day if police would have confiscated these videos.
http://carlosmiller.com/2008/12/18/nypd-cop-facing-prison-time-for-citizen-abuse-exposed-on-youtube/
http://carlosmiller.com/2008/08/12/nyc-council-members-urge-probe-against-nypd-as-second-video-emerges/
“I’ll tell you the reason that many of the police think that they have all this extra power. It’s shows like CSI and NCIS…”
I’m glad I’m not the only person who has made this observation.
“We need to swab your mouth for a DNA sample”
“Duh, OK. AAHHHHH!!”
Don’t talk to the police, ever:
Part 1:
http://video.google.com/videoplay?docid=-4097602514885833865
Part 2:
http://video.google.com/videoplay?docid=6014022229458915912
Officer Brad,
Precisely because of chain of evidence, in police shootings, surrendering photographs makes the chain suspect!
The one thing that most of you are failing to remember is these cops actually killed someone moments before.
I am going to be a little careful when dealing with a pack of wolves who just gunned someone down in cold blood.
Then again, the other cop is now being shown as beating on the dude before Mehserle shot him. I guess getting beat up is another option.
For those of you not familiar with the BART police they have a kind of unbelievable realm of jurisdiction. It’s really kind frightening actually.
I’m a regular reader and I was pleasantly surprised to see your blog in Reddit: http://www.reddit.com/r/politics/comments/7t2lq/do_police_have_the_right_to_confiscate_your_camera/…. in case you were receiving a higher number of hits and didn’t know from where.
here’s the bottom line folks – the police control the homicide crime scene, not the public – it’s not a place for public debate or a forum for pundits – if you don’t cooperate with the police on the scene, you likely will be arrested – you may think your rights are being violated but Job One for the police is the homicide investigation so they’re not going to be terribly sympathetic if you’re uncooperative or don’t like something – a cop is most likely to answer “that’s just tough” or “too bad”
judges overwhelmingly back the police in these sorts of matters – the courts do not want citizens impeding criminal investigations – a judge will not be sympathetic to an uncooperative witness – I can tell from many of the comments here that most of you people have never been inside a criminal court & seen a judge in action – ask Carlos, he’ll tell you how much a judge favors the police in criminal matters
now put the shoe on the other foot – your loved one has just been murdered – are you going to have any sympathy for someone who will not turn over his cell camera footage of the crime to help in the investigation? Mom or Sis or Dad or Grandma is lying on the ground covered with a bloody sheet & someone is having a snit because she doesn’t want to let the police touch her precious cellphone?
UNDER US LAW, POLICE NEVER HAVE THE RIGHT TO EITHER CONFISCATE YOUR CAMERA, NOR YOUR FILM / VIDEO, WITHOUT COURT ORDERED SUBPOENA
Chuck my friend, you’re comparing apples and oranges here – subpoenas are primarily used in civil court & certainly not used at the scene of a crime – if you have footage you just shot, you are a material witness – you saw the crime too, so you will be detained & questioned at length, perhaps for many hours – there aren’t too many blind cameramen out there so if you have footage, you witnessed what went down also
what you’re talking about is technically called a subpoena duces tecum – they are primarily used in civil cases, e.g. one party needs a copy of footage that ran on Channel 57 back on 1/2/07 so the subpoena is used to obtain a copy for civil litigation purposes
I suspect you’re thinking about a court order, but use of that would only kick in once homicide charges have been filed & the defendant has been arraigned so that his case is on the docket; none of that has yet happened at the scene of the crime
you can’t leave the scene anyway to obtain any kind of court order so discussion of one is pointless
if a prosecutor shows up at the offices of Channel 72 wanting to see footage of a homicide, that’s when a court order is needed, they’re for after the fact (in some jurisdictions, the prosecutor would actually obtain a limited search warrant)
IF ARRESTED, ASK FOR A LAWYER AND POLICE SUPERVISOR IMMEDIATELY.
your attorney will be contacted in due course hours later, only after you’re taken down to the station & processed with your camera & footage safely in police custody – if you demand to see a super, he’ll back his officer – a supe will have no sympathy for someone who refuses to cooperate in a homicide investigation – it’s a crime scene, not an ACLU cocktail party, so those in attendance will not be too sympathetic to your cause
not much can really be done about that unless you yourself want to get arrested
you are 100% correct, when a cop asks it’s not an option, it’s an order
if someone at the scene has footage of a homicide, he has 2 choices when the police ask for the cellphone camera
1) turn over the cellphone or 2) refuse & get arrested
if he’s arrested, the police will end up with the cellphone anyway, so what’s the point in refusing?
if he has objections to turning over the cellphone, there are remedies for that later
“not an ACLU cocktail party”
They’re too cheap to throw parties.
——–
If I were in a situation where I just photographed or filmed a cop shooting somebody or anything that the cop insists I hand over, I will flatly refuse.
And I know I will get arrested for it but that would force a legal eye on the actual evidence they confiscated, which would make it harder for them to destroy.
If I just hand over the camera, sure I might walk away without getting arrested, but not only did I get stripped of my constitutional rights, I surrendered the only evidence existing of whatever it is I filmed.
And there is a higher chance of that evidence never getting shown to the public.
This is very important in case I happen to film police brutality.
Sooner or later some loonbag is gonna take an old camera shell and pack it with C4 and a radio detonator. Then they’ll give the authorities a big fuck you urban Iraqi style…
“you are 100% correct, when a cop asks it’s not an option, it’s an order ”
I’m not in the habit of taking orders from my employees.
Allen,
Thanks for reading. I usually submit my good articles to Reddit but in this case, someone had submitted it to Digg and it ended up overloading my site, so I never got a chance to put it on Reddit.
But obviously someone just did, so it’s bringing in a lot of traffic.
That post quickly became one of the all-time popular posts on this blog. It’s been posted everywhere on the internet.
http://www.google.com/search?q=Do+police+have+the+right+to+confiscate+your+camera%3F&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a
I hope to God Office Brad doesn’t walk a beat anywhere near where I live.
Your justification for the convenience of the court is always the one that is trotted out.
As for your idiotic remarks about an “ACLU Party”, well you have just confirmed your hidden political agenda and in my books that makes you dirty.
Next, you’ll lecture me on how important it is to give up my rights to “save” them…
You never worked for the Nixon Administration, did you?
War is Peace; yada, yada, yada.
“Good point, but I don’t have a camera on my cell phone, so it won’t be what they confiscate.”
Exactly! and the police never confiscate anything they aren’t supposed to, so your camera is safe.
Brad, your concept of the material witness process is completely wrong. Police can’t simply hold anyone standing around a crime scene as a material witness, that would be insane. A person can only be detained as a material witness pursuant to a material witness warrant, which is only issued if there is some reason to believe that a standard subpoena (which are used in criminal cases all the time, I have no idea what you’re talking about in saying they’re mostly for civil cases) would be ineffective. So, assuming you actually are a police officer, are you going around detaining people at crime scenes as “material witnesses”? Because that’s completely illegal.
Zach, your comments are as laughable as your “information”
a subpoena is an order directed to an individual commanding him to appear in court to testify or produce documents in a pending matter before the court – it has nothing to do with a crime scene – most subpoenas are used in civil cases; they are used in criminal cases but only at the time of trial to compel witnesses to appear – again, they have absolutely no application at a crime scene because there isn’t even a docket or arraignment yet, let alone a calendared trial
a “material witness warrant” has nothing to do with a material witness at an active crime scene – do your homework & learn the correct terminology before flaunting your ignorance
Police can’t simply hold anyone standing around a crime scene
I never said they did – don’t put words in my mouth – if you have footage of a homicide, you’re more than someone “standing around a crime scene” – you’re a material witness
it’s patently clear to me you don’t even have a basic understanding of what a material witness to a crime is or any idea how material witnesses are handled at a homicide scene
I have been at some homicide scenes where more than 100 material witnesses have been held for several hours until interviewed
just to be clear here Zach, a material witness at a crime scene is not the same thing as a material witness in the trial phase
that perhaps is the source of your confusion
a material witness at the crime scene may or may not become a material witness in the trial phase
Officer Brad sounds like someone that arrests people under pretexted circumstances for things like resisting arrest, interfering with an official investigation, ignoring a lawful order from a police officer and trespassing.
Yes the police do have an interest in questioning people that are witnesses to homicides and other crimes. That doesn’t mean that only the police get to set the time, place and manner of that questioning. It doesn’t give them the right to detain you at a crime scene for hours, simply for being a witness. It doesn’t give them a right to put handcuffs on you. It gives them a right to ask you questions at a time, place and manner that is agreeable to both you and the police. You can also refuse to talk to police and there isn’t much they can do to compel you to speak to them, for this they may arrest you under the pretext of interfering with an investigation. You don’t have 5th amendment rights to not testify except when it comes to crimes you are charged and could be ordered to testify by a judge to do so. If you refuse the judges order you could be held in contempt.
Yes police do have an interest in seeing photos and videos you may have made during a crime and there are means for them to legally get them but all require a court order, not the demand of a police officer. Being the witness of a crime and having photographic evidence of that crime doesn’t give the police a right to take your property from you. It doesn’t even give the police a right to demand a copy. The photos are your personal property no matter what Officer Brad might say and the only way the police can get them without stealing them from you is for you to agree to give the police the photos or copies or with a court order, which I believe could be a search warrant. There isn’t a suspicion that you have just committed a crime so you can’t be legally searched against your will at the crime scene, the police requiring you to show them your photos is a search. Though the police might use one of those pretexting charges against you to make you submit to being searched against your will.
Many police officers do things wrong every day and trample the rights of citizens. Most of the time they get away with it and the people who’s rights they trample have no idea they were wronged. Many police officers don’t like meeting people in the street that know what their rights are and will use one of those pretext charges to f with you if then can when you don’t submit to them. So be prepared.
duane kerzic
Do not talk to police without council present. When you are stopped by police you do not have to answer any of their questions. As soon as you are stopped (detained) by police your “miranda” rights are already in play. Police usually read you these rights “after” you have been arrested and on your way to jail. The truth is “you have the right to remain silent.” So… If you have the “right” to remain silent… I recommend… YOU STAY SILENT.
Rules of evidence; 801D2a. Anything you say can and will be used AGAINST you in a court of law. You never know what you are going to say that can be used against you. You are not a psychic, you are not a prophet, you can not see the future… So no… You don’t know what the police knows and you don’t what you say to the police can be turned around and be used against you.
Give big thanks to Dean for posting that good lecture that’s available through Google video. Watch that video, this professor/lawyer makes it extremely obvious and simple to understand why you should NEVER talk to the police.
Yes police do have an interest in seeing photos and videos you may have made during a crime and there are means for them to legally get them but all require a court order
correct – if a witness does not voluntarily surrender his device at the homicide scene, he may be held until the necessary order is obtained
he may be ordered not to touch the device & to leave it in his pocket – if he violates that order, he may be arrested for failing to obey a police officer & handcuffed so he can no longer touch the device
When you are stopped by police you do not have to answer any of their questions.
please don’t give out wrong advice like this – some states have so-called “stop and identify” statutes where you must provide name, current address, & possibly some form of identification – these have been upheld by the US Supreme Court, see Hiibel v. Sixth Judicial District Court of Nevada
As soon as you are stopped (detained) by police your “miranda” rights are already in play.
again, this is not correct – Miranda only kicks in with custodial situations
Again Officer Brad wants to overreach what he’s allowed to do and the boundaries of his authority. I, for one, never want to meet this officer because he’s obviously one that would end up violating my rights as a citizen at some point.
A court would never order you to give your camera or your phone to the police and the police can’t expect you to voluntarily surrender it for some undetermined amout of time. They also can’t in the case of a cell phone expect you not to use it for the purpose of communicating, nor can they expect you to stop taking photos of the murder investigation with your camera.
That’s the point that Officer Brad misses.
The court would at most order you to provide a copy of the image or video to the police at no charge. The court would not take your images from you nor would the court expect you to surrender your cell phone to the police.
Now since I’m a good citizen and would be interested in seeing a murderer convicted I’d offer to give the police a copy before I was asked. But the moment they tried to take any of my equipment or photos from me my attitude would completely change. The moment they tried to control my movements as a witness my attitude towards the police would completely change.
As far as the police telling you as a witness and not a suspected perpetrator of a crime Officer Brad it way over the top.
I’ve been a witness and I’ve been accused as you can see on Calos’s website, http://carlosmiller.com/2008/12/27/amtrak-police-arrest-photographer-participating-in-amtrak-photo-contest/ and my website, http://www.duanek.name/amtrak.
duane kerzic
If you are stopped by police in most places you have to identify who you are, where you live and sometimes provide a means of ID and that’s all.
You have no obligation to answer any other questions the police ask you unless you chose to answer those questions.
You also can’t lie to a Police Officer. So most of the time you’re better off not talking to them at all.
I’ve been known to break this rule from time to time and it’s worked out for me as far as speeding tickets go. But most of the time if the cops are questioning you nothing you say is going to prevent you from getting in trouble so the less you say the better. there is always time to confess if you did something wrong.
duane kerzic
““stop and identify” statutes where you must provide name, current address, & possibly some form of identification ”
A person only has to show their identification if police have “reasonable suspicion” that a crime may or may have taken place.
Also Identify laws are not there to MAKE a person give up identification. Instead “stop and identify” gives the permission to police to arrest a criminal suspect who refuses to identify themselves. See how that changes everything there? It gives the police the right to arrest a person for not showing ID (that they suspect has committed a crime)… It does not give the police the right to obtain identification from whoever they want.
Also, showing form of identification (pertaining to my original argument.) is not “answering” police questions.
“May I see your identification?” Sure thing officer. “So, where are you headed? Where you coming from?” With all due respect, I do not believe is in my best interest to answer those questions officer. As per my constitutional rights I choose not to answer any questions without my council present. Am I being placed under arrest or am I free to go?
As for “miranda rights.” The miranda warning is nothing but a condensation of your rights. Miranda rights do not “give” or “take” any rights from you. Miranda is nothing that “kicks in.” Miranda rights warning is nothing more than a statue that requires law enforcement of informing you of your constitutional rights (Miranda it’s not a right in itself.) So yes… I am correct. Your constitutional rights “kick in” always.
If the police officers decides he’s going to arrest me because I’m “failing to cooperate” or “obstructing justice” well then no problem. Now I am under arrest (not just detained) and now I have EVEN MORE reason not to answer any questions or talk to the police.
BTW, that “Miranda only kicks in with custodial situations”… I laughed at that one. That’s like saying; You have no constitutional rights until it “kicks in.” You must be kidding me.
Great response OverDosis.
The only thing that “kicks in” is the requirement that the peace officer must notify you of your rights when you are in a custodial situation. OverDosis, you are correct you always have your constitutional rights, those rights “kicked in” when you were born or landed in the United States of America which ever came first.
Stop and Identify is fairly well covered here, http://en.wikipedia.org/wiki/Stop_and_Identify_statutes
I think Officer Brad might need some Remedial Police Officer Training (RPOT). We used to have Remedial Military Training (RMT) when I was at Officer Canidate School, Newport, RI. It worked wonders.
I have been a sworn law enforcement officer for more than 20 years
I have never been reprimanded & I have never been sued for any action I have taken while on duty
if people want to think they have a “right” to impede a homicide investigation, then I hope they have some money saved for a good attorney because they’re going to need it
but be forewarned that the defense of “some guy posted on the internet that I didn’t have to” or “I read in Wikipedia” won’t get you very far
Every occur to you, Officer Brad, that you just might have been operating under some bad assumptions for 20 years and no one has called you on it?
I highly doubt you’ll ever try to find out for sure IF you are operating correctly under that Oath you took so long ago, or that it even matters to you; you have your assumptions and “experience” to fall back upon.
You’re one of reasons people distrust cops; you make your job harder and more dangerous with your attitude and inflexibility.
So the next time you start busting your mouth off about the ACLU and punks who “demand their rights”, think about what you’ve become and that oath you ignore.
Sounds like you make war on the citizenry, not protect them.
God help those you “serve”.
So what officer brad is saying is when an officer is committing a crime we are supposed to protect him by giving up evidence to be disposed of.
Thanks for clarifying it Officer Brad. May I respectfully suggest you take additional training and learn how the law works. It seems 20 years of on the job training skipped a few important things you should know.
Now I’m understanding why the founding fathers wrote the second amendment. It’s important for people to protect themselves sometimes from abuse. Just because your with the government doesn’t make you right.
I don’t know how do do quotes on here but Frank Wylie you hit the nail on the head with your comments. Now I don’t personally believe that all peace officers are bad. I only believe a small percentage of them are.
I also believe that the tricks they use and the lies they tell in “doing their job” make us all more dangerous. It’s amazing how proud some officers are of these tricks and ruses they use, yet if they did the same thing in business it would be considered a fraud. This in my mind makes them no better then those they seek to arrest. If there weren’t so many reversals on DNA for certain crimes I’d have a lot more faith in the police.
It’s impossible to win in the street against the “thug in blue”. After all he’s the one with the legal gun and the handcuffs. They will always find a pretext to arrest you under if they want to.
If you were at the scene of the BART shooting and they came to you and said, “give me your cell phone” and you gave it to them they would later claim you gave it to them voluntarily, even if you were under the impression that it was an unlawful order for you to “have” to give them your phone so you’d never win anything against them. Most of the time this is the ruse that the police use.
They give an unlawful order you comply then they say you did something voluntarily and they get away with it. You don’t have any recourse against them, even if you file a complaint the investigation is going to come down that the cops didn’t do anything wrong.
As I have learned it’s not until you refuse the order and they arrest you under one of those pretext charges for not following an unlawful order that you have a case. I’m going to give you a warning here. It’s much better to just allow them to arrest you and not give them any crap about it, they look worse in the end anyway. I’m sure Carlos will now agree based on his experience, just give them your stuff and put your hands behind your back. You don’t need them piling on the charge of resisting arrest.
Now Officer Brad is correct. The police with the prosecutor will do their best to make things very expensive for you.This is one of the ways they get away with their jack thuggery. The ACLU and the Legal Aid Societies are one of the ways the citizens have fought back against this behaviour. This is probably why Officer Brad has such obvious disdain and disrespect for these institutions. They keep his war on the civilians in check.
Now after you are found not guilty in the criminal court you proceed to the civil court. Almost all of the time these things are settled before trail. You end up getting some money and the police agencies don’t admit any wrong doing. This is a time consuming process so most of us don’t want to get involved in it.
Duane,
Quotes can be done by just doing quotes. If you want to italicize a segment, do it like this:
< e m > SEGMENT < / e m >.
But be sure to remove the spaces. I had to do it this way in order to show you or otherwise, it would come out italicized.
The heart of this post was the Oscar Grant shooting. That particular incident comes across as the ultimate in police abuse of authority. It stirs deep feelings among many who see it. Many questions remain but personally I can see no excuse for the extreme and misplaced actions plainly visible in the video. The root cause of those actions goes deep and is spread wide in law enforcement. The incident from the very beginning could have been, and should have been, handled much differently.
From that incident now comes the debate of “Do the police have a right to confiscate your camera?”
How police use their authority comes into play in that question.
Unless I am misunderstanding something, what I am seeing here in these comments is similar to what I have seen on the street. Namely, citizens saying we have rights and police, often but not always, saying our authority trumps your rights, so too bad.
I don’t see that as being a good approach.
Within my understanding, the 4th Amendment is what is supposed to guard the public against unreasonable searches and seizures. For a person to be arrested a law enforcement officer must at least have probable cause; i.e., the person being arrested probably committed the crime.
For property to be seized and searched probable cause is necessary as well; in the disputed issue here, an officer would need to legitimately believe a camera probably contained evidence of a crime. A warrant must be obtained for the search and seizure unless exigent circumstances exist. In that case the property could be seized while a search warrant is obtained.
For a person to be detained a LEO must have at least a reasonable suspicion that a person is about to or just committed a crime. That detention must be short lived until probable cause for an arrest is either established or dispelled. In a confused and hectic situation police can reasonably stop multiple persons but only if they are suspected of some type of criminal activity. Once again the detention must be short lived. Once someone is determined to have no criminal involvement they must be released. It is a Constitutional rights violation otherwise.
This additional power granted to police beyond the 4th Amendment came from Terry v Ohio but it did not grant police the authority to forcibly stop and detain “witnesses” to a crime.
If the material witness statute gives authority to a LEO to forcibly detain a witness at the scene of a crime (and I am of the strong belief it does not) it seems to me it would be a contradiction to the limitations of a LEO under 4th Amendment and Terry v. Ohio guidelines.
Our laws in this country are not necessarily carved in stone. They are argued, debated, and sometimes changed or interpreted differently all the time from small local ordinances all the way up to our Constitutional rights.
Ultimately, I see and fully understand that the public doesn’t like police coming across as bullies. They don’t like misplaced aggression. I don’t either.
Police have significant power and authority. When they come across as needlessly or overly aggressive, as authoritarian instead of authoritative, it understandably turns people away.
Too much force, too soon, and too often is taking law enforcement in the wrong direction.
So what about the question, “Do the police have a right to confiscate your camera?”
If I were back on the street again, I would tread very lightly in that briar patch. I think I would have much better results treating someone respectfully and asking politely rather than demanding and seizing. But that is just my opinion.
What if the camera contained evidence of police misconduct?
Show it to the world. People have a right to know and police have not always been very forthcoming in that area.
Officer Brad you talk about no one has a right to “impede a homicide investigation” you are clearly right. However if you look at it from the point of view we are coming from, in my opinion, we are keeping evidence from being destroyed as you guys always look out for each other and damn the public.
Don’t we have a civic duty to keep a crime from being committed?
I agree with Karl when he says that if police come across as overly aggressive, they will turn people away.
In my experience, the most professional cops were the ones who approached civilians with respect, even if those civilians were getting arrested for actual crimes.
This is just human nature. If you want to be respected, you need to show respect.
Now just say I was at the BART station and ended up with video that shows the shooting.
If the cops comes up to me and start yelling and ordering me to hand over my camera, I will refuse. I’m very instinctive about that.
But if they come up to me and explain they would like to see the video because they want to ensure a thorough investigation, I will try to reason with them.
I would even offer to drive to the police department, allow them to download the video on the condition that I would walk free with my camera and the video.
And on the understanding that it will be posted online.
And when I post it online, I will be honest and say that I allowed police to have a copy of this video.
Of course Officer Brad is correct. You must obey a police officer at a crime scene. The police officers allegedly requesting the camera phones were not the same ones involved in the shooting. I cannot believe what I’m reading here, and I am astounded to think people actually believe you can ignore police officers and take the law into your own hands. The BART officer has been arrested and now faces trial. The system worked because mechanisms exist within every police department to deal with problems. What some of you people advocate is nothing short of anarchy and lunacy. If you think a society without police is the way to go, then maybe a move to Somalia is in order. That’s a completely lawless society of the sort you seem to admire.
Sigh LAPD Captain: you have the same tired line as others “if you think police are not needed look at where ever.”
No one here says police are not needed what we say is we don’t trust you. We don’t think you’re honest. We don’t think you’re willing to uphold civil or even moral rights when it is one of your own at stake.
You say the system has “The system worked because mechanisms exist within every police department to deal with problems” I say maybe the videos you didn’t get insured that system worked the way it is supposed to.
What we want are law officers who are not above the law and who are not fucking bullying assholes.
Now how does that make us want a lawless society?
Hello LAPD Captain III
One important issue which I saw in the posts was whether or not witnesses could be forcibly detained.
You said that one must “obey a police officer at a crime scene.” That is a very broad statement.
LEO’s have limitations. Acknowledging such is not advocating “anarchy and lunacy.”
In reference to the BART officer you state, “The system worked because mechanisms exist within every police department to deal with problems.”
I have to disagree with you on that in relation to the BART incident specifically and law enforcement in general.
In the Oscar Grant shooting/BART incident, the “system” did not work. A person was shot and killed who should not have been. If no video existed or had not been made public, I strongly suspect that facts would have remained hidden and not been addressed.
Within law enforcement in general the mechanisms within many police departments to deal with “problems” are broken and in need of much repair.
None of that means that we don’t need police. Did somebody say that in one of the posts? Perhaps I missed it.
Karl makes a good point in that many police officers (and others in positions of power) tend to make leaps of logic, in that if you disagree with their opinion or interpretation of the law, you are automatically “guilty” of breaking the law and somehow unworthy of their positive or even neutral consideration.
It appears to be a confusion between ENFORCING the law and mistaking themselves AS LAW. That they somehow become, through the act of being hired and sworn in, an entity that can deform the statutes to meet their desires and whims, no matter how well intentioned they imagine themselves to be. You see this a lot in some military and ex-military MPs; confusion between self and law.
OK Officer Bart and or LAPD Captain III, I have just shot video and film of your officer involved in an instance of using deadly force.
You approach me and demand the cameras. I agree but in turn demand a receipt with serial numbers and an accurate inventory of what you are taking.
What do you do?
LAPD Captain III wrote,
“The BART officer has been arrested and now faces trial. The system worked because mechanisms exist within every police department to deal with problems. ”
This means absolutely nothing. We’ll see after the trial if the system worked or not. First of all, the officer should have been arrested on the spot and held without bond not two weeks later.
Here is another fine example of how the system failed when BART cop Fred Crabtree shot Jerrold Hall who was unarmed in the back of the head with a shotgun.
http://www.sfbg.com/entry.php?entry_id=7799
So tell me LAPD Captain III, how did the system work in this situation? How does a cop shoot someone who is clearly unarmed in the back of the head and avoid jail time?
“It appears to be a confusion between ENFORCING the law and mistaking themselves AS LAW. That they somehow become, through the act of being hired and sworn in, an entity that can deform the statutes to meet their desires and whims, no matter how well intentioned they imagine themselves to be.”
You forgot the part about how half the power of
God is strapped to their hips. That is a useful tool in enforcing compliance.
I’m gong to quote from a letter from the US Department of Justice to the Detroit Police Department as it pertains to witnesses.
II. Arrest Policies and Practices
DPD arrest policies and procedures contain imprecise, ambiguous and contradictory language. The policies as written, coupled with a lack of supervision, allow for the unconstitutional arrest of witnesses and suspects.
A. Arrest of witnesses
We recommend that the DPD amend and clarify its policies to comply with the law governing arrest. An arrest occurs when an officer’s words or actions would convey to a reasonable person that he or she is not free to leave. (1) California v. Hodari D., 499 U.S. 621, 628 (1991). Therefore, an officer’s subjective intent is not a factor in the evaluation. This inquiry is based on all of the circumstances surrounding the encounter. Florida v. Bostick, 501 U.S. 429, 437 (1991). Thus, an individual may be under arrest whether uncuffed on the street, guarded by officers in a special command or locked in a precinct holding cell, so long as a reasonable person would conclude that he or she is not free to leave.
According to DPD policy an arrest is defined “as a taking of an individual into custody for further investigation, booking or prosecution.” (2) Under DPD policy, “an arrest is not valid unless the arresting officer actually has the intent to make an arrest according to the definition of ‘arrest’.” (3) DPD policy further states that witnesses should be detained at the scene of a crime investigation and/or transported to the Headquarters Building for interviewing. (4) These policies implicitly authorize DPD employees to detain witnesses involuntarily for questioning. Some DPD employees, who acknowledge that witnesses are detained involuntarily for questioning, stated that even though a witness is not free to refuse transport to or leave from the command, they do not consider the witness to be under arrest.
We recommend that the DPD revise and clarify its investigative policies and eliminate any authorization or instruction to detain witnesses, absent a valid material witness order. (5) We further recommend that the DPD utilize appropriate law enforcement procedures that include techniques for both on-scene and station house interviews of witnesses. The procedures must safeguard voluntary participation by witnesses.
The new policies and procedures should be circulated to all precincts and commands. The DPD Manual should be updated to reflect the changes. The DPD should provide training on the new policies and procedures to all levels of command. All training should be documented to clearly identify who was trained, the date they were trained, and how the training was conducted. Finally, audits should be conducted to ensure compliance with the new procedures.
and with regard to the holding of witnesses
III. Detention Policies and Practices
When a detainee is arrested, the DPD requires that the detainee be formally processed before being placed in a precinct holding cell. As part of the processing procedure, DPD policy requires that an arrest ticket be completed. An arrest ticket records an individual’s personal information as well as the charge on which he/she is lodged, or detained in a holding cell. If the individual is a police witness, the investigator is required to identify that information on the arrest ticket and to attach the court order authorizing the witness’ detention to the arrest ticket.
The DPD does not ensure that detainees are moved out of its custody in a systematic and timely manner. The lack of a systematic process permits the unconstitutional detention of individuals in DPD custody. The DPD precinct cells were designed and are intended to operate as temporary holding facilities. Regardless of a detainee’s destination, (14) the DPD needs to implement a system that will process all detainees and ensure their timely movement out of DPD custody.
A. Individuals lodged as police witnesses
A witness who is subpoenaed to testify in a criminal case is a material witness. Pursuant to the U.S. Constitution and Michigan Law, only a court has the authority to decide whether an individual is a material witness and whether that material witness should be committed to a jail pending his/her testimony. (15) DPD policies regarding material witnesses are inconsistent. Although the DPD does not identify material witnesses as such, the DPD describes four categories of police witnesses, all of whom are detained to ensure their testimony in a criminal case (16) and all of whom require a court order prior to their detention in a precinct cell. (17) This policy also states that the DPD does not have the authority to detain a police witness without a court order for more than 12 hours. (18) The policy implies that an eleven hour detention without a court order is acceptable. Yet another DPD policy specifically requires DPD detention officers to check the admission cards of all police witnesses on a daily basis and to contact the OIC regarding the lack of a court order or expected date of release. (19) These inconsistencies in DPD policies implicitly allow for the illegal detention of individuals classified as police witnesses.
DPD employees have informed us that individuals merely suspected of being a witness or merely suspected of knowing the whereabouts of a suspect are arrested, lodged and held as police witnesses in precinct cells without a court order or access to judicial review. However, even if the DPD enforced its policy requiring a court order to arrest or detain police witnesses, individuals would remain improperly detained in DPD custody because not all witnesses are classified as witnesses when they are arrested. Indeed, DPD employees informed us that some witnesses are listed as being charged with the crime with which they are believed to have information.
Some witnesses are appropriately classified as police witnesses and lodged pursuant to a court order. We spoke to several such police witnesses who were sentenced prisoners removed from a state correctional facility. The police witnesses we spoke to had been in the holding cells for several months even though DPD facilities are designed and operated for temporary placement only.
We recommend that the DPD revise its policies regarding police witnesses to eliminate conflicting elements and to comply with the U.S. Constitution and Michigan Law. The DPD should not allow any individual classified as a police witness to be lodged without a court order. If an investigator does not have a court order, the OIC of the precinct desk should refuse to lodge the witness. Similarly, if a witness without a court order is detained at a special command, the investigator’s supervisor should ensure that the individual is immediately released.
The DPD should arrange for any police witness held for an extended period of time to be lodged in a facility designed for extended stays.
I’ll quote from another item, December 28, 2006 2007-R-0036 INVESTIGATIVE DETENTION By: George Coppolo, Chief Attorney which can be found at:
http://www.cga.ct.gov/2007/rpt/2007-R-0036.htm
d. Non-criminal detention
(1) A trooper may briefly detain a person who is not a criminal suspect to protect the public or assist apprehension of a criminal.
a. When requested by a uniformed trooper, anyone operating a motor vehicle in Connecticut (CGS § 14-217) is required to provide or produce:
1. Name and address;
2. Name and address of the vehicle’s owner;
3. Registration certificate;
4. Motor vehicle operator’s license; and
5. Proof of insurance.
b. A trooper may order any or all occupants out of a motor vehicle stopped for a traffic violation.
c. A witness at a crime scene may be briefly detained to obtain a name and address or to make inquiries.
d. If a witness is not cooperative, attempt to identify the witness and approach him or her later.
(2) If it is necessary to arrest a witness to a crime to ensure appearance at a trial, an arrest warrant would normally be obtained before arrest (CGS § 54-82j).
I wonder if Officer Brad and LAPD Capt III are getting the point. While yes police do have certain additional powers at a homicide scene they don’t have the rights to take your property from you. Perhaps they will get out the operations manuals of the departments they belong to and refute this material. Nothing like a little RPOT for these guys, show us the documents.
duane
I’m astounded to think people don’t remember what the second amendment says and why it’s there.
It’s there to protect us from abuse of the government.
I think the Fourth Amendment is more appropriate in this case, which protects us from illegal search and seizure.
True.. and the 2nd is there in case they break the 4th amendment… what am I saying.. in case? They do it all the time.
I cite the rouge Ex President Bush and his illegal wiretaps.
The government is supposed to serve the people not the other way around. The government should always fear the public. The public should never fear the government, but this is definitely the growing trend thanks to our run away law enforcement group.
I’m astounded to think people don’t remember what the second amendment says and why it’s there.
Shooting cops, or anyone else for that matter, won’t solve the problem. It’ll make it worse (Waco anyone?). I have LEOs in my family. They aren’t all bad, just a little misguided. I’m sure LAPD, and Brad are good guys too.
Peaceful resistance is the most effective way to go. The kind of activism Carlos is engaged in exposes the system for the bunch of bullies and thugs it is. The saying “The pen is mightier than the sword” is very true.
The internet is probably the greatest tool ever created to help in this endeavor.
http://www.freetalklive.com
http://freestateproject.org
All of our Constitutional rights are valuable and worth protecting.
Indifferent elected officials typically respond only when enough citizens collectively make known their strongly held desires.
In Oakland, unfortunately too late for Oscar Grant, a few positive steps may likely occur in the area of law enforcement and ensuring that civil rights are not so blatantly violated.
Also likely is that once public attention dies down progress in true public safety will die down, which means that citizens collectively must be constantly vigilant and vocal to government leaders. It would have been better for Oscar Grant and others in the Oakland area if all the scrutiny and public pressure applied to local officials had begun and continued from long ago.
The publisher of this blog, Carlos Miller, is undertaking a First Amendment based fight against police and local government officials. It would better serve the public in the Miami area if more people would demand of local elected officials to honor First Amendment rights. Mr. Miller’s issue is a good opportunity to do so.
If First Amendment rights are not honored, it is much easier for government officials to violate the remainder. From what I understand, Mr. Miller was condemned for exercising his First Amendment rights.
It is much easier to keep all of our rights if many others get on board. Helping others will help us all.
At least that is how I see it.
It is much easier to keep all of our rights if many others get on board. Helping others will help us all.
At least that is how I see it.
Karl, this is the truth, everyone has an interest in protecting every one’s rights because it’s the only way to protect our own rights. We have to be ever vigilant against the violation of all citizen’s and people in the USA rights by any governmental agency.
This doesn’t mean that I’m advocating anarchy, let be very clear about that. I recognise that the government has certain powers and support the government in the exercise of those powers. I support the police in the execution of their duties.
Let me be very clear about what I don’t support. I don’t support when the police over step their powers and infringe on the civil rights of the people. I don’t support Officer Brad’s and LAPD Capt III’s statements that of course you have to follow what the police tell you to do at a crime scene. As if the people are sheep to be herded by the police.
What Officer Brad and LAPD Capt III seem to forget is that at a crime scene they are representing the people’s interest in apprehending the perpetrators of the crime. The police are acting as agents of the people. It is the people that have an interest in prosceuting the crime, not the police, which is why all criminal matters are tried as The People of Vs. . This is very important.
Remember the people are not agents of the police.
I used the wrong tags… this sentence It is the people that have an interest in prosecuting the crime, not the police, which is why all criminal matters are tried as The People of Vs. . should read,
It is the people that have an interest in prosecuting the crime, not the police, which is why all criminal matters are tried as The People Name Of Jurisdiction Vs. Name of Suspect.
I’m not suggesting shooting cops. I am suggesting self defense.
And for the record, passive resistance would not have given us a free country from another bully we reported to 200 years ago.
I’ve prosecuted several dozen cases where the police seized cellphone cameras at crime scenes from witnesses. I know of no caselaw supporting a witness who refused to surrender a camera. I know of several cases where witnesses were successfully prosecuted for refusing to cooperate with police and surrender cellphones at the scene. If a police officer has reasonable belief the camera contains evidence, he/she may lawfully seize it. That’s the law and precedent. Anyone who thinks they have some right to refuse a police officer and withhold evidence is seriously misinformed.
ADA,
Actually, I can think of one. A couple of years ago on Miami Beach, a group of right-wing Christian preachers were preaching when police intervened.
Police arrested the main preacher because they believed he made derogatory remarks towards homosexuals.
His wife filmed the entire incident. When police told her to hand over the camera, she refused and was arrested.
While he was charged with a misdemeanor, she was charged with a felony.
They threw her charge out a few days later.
Give me a few days and I’ll find the video and do a write-up on it.
ADA
I’d be interested in the case numbers of those prosecutions.
I think when most photographers discuss surrendering their camera or camera card it is in non-criminal situations such as photographing a bridge, building or structure.
To withhold evidence, there must first be a crime…
I am suggesting self defense.
Which could involve shooting cops, and, unless you have a huge, well financed militia behind you, would be a losing battle.
And for the record, passive resistance would not have given us a free country from another bully we reported to 200 years ago.
I’m well aware of what happened 200+ years ago. I’m also well aware that it was fought over less egregious acts against the citizenry than we have today. Unfortunately it probably would have been lost without the support of the French.
How would something like that be organized now? Who’s going to pay for it? What kind of command structure? Who do we go after? Our brother, sister, friend, neighbor? And when it is all said and done, what’s to insure we don’t end up with worse than we have now?
Sorry, I’m for the peaceful resistance approach for the time being. Gandhi, and MLK were right on. We have much better tools now to fight with that don’t involve violence. We can use them to expose the corrupt system for what it is, a gang of violent thugs.
Say cheese everyone
http://www.freetalklive.com
http://freestateproject.org
Dear ADA,
I’ve prosecuted several dozen cases where the police seized cellphone cameras at crime scenes from witnesses. I know of no caselaw supporting a witness who refused to surrender a camera.
How about the Four and Fifth Amendments of the Constitution of the US. You can’t just go and search and seize a criminals property but you can seize a witnesses? To imply that witnesses to a crime have less protections then the perpetrator is just nonsense. Where did you go to law school anyway and were did you finish in your class? Are you sure you passed the bar exam? I hope your supervisor reads what you posted here and knows it was you when doing your next review.
I know of several cases where witnesses were successfully prosecuted for refusing to cooperate with police and surrender cellphones at the scene. If a police officer has reasonable belief the camera contains evidence, he/she may lawfully seize it. That’s the law and precedent. Anyone who thinks they have some right to refuse a police officer and withhold evidence is seriously misinformed.
Please cite the cases and the appeals. Police can’t seize any personal property unless they have a warrant or they arrest you, that’s the law and the precedent. They also have to return most of that property to you in a short period of time unless it’s evidence of the crime and then it has to be returned after the trial unless there is forfeiture of the property as part of the trail.
If police officer has reasonable belief the camera contains evidence, he/she may not lawfully seize it but he/she may lawfully get a warrant to search it and possibly hold it as evidence for a short period of time.
Now I want to be completely clear here if you are the witness of a crime of any kind and take photos of it. I’m not saying that police don’t have an interest in obtaining a COPY of your photos/video or that you can refuse to provide them a copy at some point. Please don’t read anything I have said to imply that you don’t at some point have to provide a copy of the photos/video to the police or prosecutor if they ask for it. You do have to provide a copy. If the police know you have photos/video of the crime and you don’t give them a copy they can charge you with impeding an investigation and you will lose.
What I am saying is that police don’t have the right to take your camera or cell phone from you and hold it as they see fit for some undetermined length of time. They don’t have a right to take your memory card from you and they don’t have a right to prevent you from enjoying your photos and using them as you see fit.
My advice to anyone that took photos of a crime would be to tell the cops you have photos of the crime at some point, either at the scene or later. You want to be cooperative and supply them with copies of the photos but at a time and place convenient for you. If they then try to seize your camera or memory card to nicely refuse. Officer Brad’s contention about chain of custody is just nonsense that cops will use to bully you. The cops didn’t see you take the photo so it doesn’t matter when they get the copy, they still need you to authenticate it in some way.
There was a case in California where a freelance news videographer took video of a murder. I don’t remember the names right now. He sold his tape to several TV news stations and it appeared on the news. The cops asked him for a copy and he refused citing shield laws. He was charged with a federal crime for withholding evidence. Since there is no federal shield law he was compelled to provide the tape and to testify.
It just so happens that in an article in yesterday’s San Francisco Chronicle, they addressed this very issue.
Guess how it ended up?
“The chief said BART had asked KTVU for a copy of the video early in the investigation and that the station refused to provide one. BART then called Alameda County prosecutors, who went to court to get the video.”
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/29/MNOP15JI6F.DTL
So ADA, are you suggesting this is such a case?
If so… are you seriously out of your mind?
“Legal System Struggles With How to React When Police Officers Lie ”
http://online.wsj.com/article/SB123319367364627211.html
Enjoy the read.
I don’t know what the “chain of custody” argument in this thread is supposed to prove. Law enforcement uses evidence removed from the scene of the crime all the time. This is not controversial.
And those would be?
Not my decision. I however have resolved to protect my person and my family when threatened. Fortunately the law provides for that contingency and it’s in my state constitution as well.
I agree but in turn demand a receipt with serial numbers and an accurate inventory of what you are taking. What do you do?
Frank, absolutely you would receive a receipt with a description of the objects surrendered – that’s necessary for establishing & maintaining what’s known in the law as “chain of custody” – most police officers carry either in their vehicles or on their person evidence tags and bags – some departments including mine use the type with a perforated receipt tag that has a unique serial number so objects surrendered may be traced throughout the custody process, from surrender to trial to return/forfeiture
I haven’t been able to check in here over the past several days because of work requirements but in my absence I did speak with a number of fellow police officers about this hypothetical while waiting for arraignment proceedings at district court – a sort of WWYD situation – there was unanimous agreement among the officers with the following procedure for securing cellphone cameras with photographic evidence from a witness to homicide or felony:
1) detain any witnesses with cellphone footage for further questioning by detectives
2) ask these witnesses to surrender cellphone cameras before questioning; bag & tag accordingly
3) instruct witnesses who refuse to surrender cameras that phones must remain in pockets or purses & that witnesses may not touch or examine cellphones while waiting; inform witnesses they may have to wait for several hours for a warrant to be secured; place these witnesses under guard; inform witnesses that if they are observed touching cellphone cameras they will be arrested for failure to obey a police officer (plus other possible charges to be determined after consultation with prosecutors)
4) if not possible to place witnesses under guard due to manpower limitations or because of late hour a warrant cannot be obtained promptly, seize phones pursuant to the exigent circumstances exception (see below) – anyone resisting seizure is arrested for failure to obey a police officer
5) any person who is arrested because of 3 or 4 above can be lawfully searched once placed under arrest & all possessions on his person can be lawfully examined since an arrest lawfully voids any expectation of privacy; hence, a warrant is no longer necessary to seize & view cellphone footage – book & process anyone arrested & log all possessions, including cellphone
6) to cover all bases, apply for warrant to seize & examine all cellphone footage of witnesses not under arrest – it’s important here to note 2 things (a) a warrant can be obtained after seizure when the seizure was made pursuant to the exigent circumstances exception plus (b) witnesses & defendants (or their attorneys) cannot appear before the magistrate/judge when the police officer applies for a warrant so there’s no chance to “plead your case”; witnesses would have to initiate their own legal challenge in a separate action after the seizure & that could take weeks if not months
I also ran this past a judge I happened to see in the mensroom at the courthouse (a “liberal” guy, btw) & he agreed with my procedure 100%
the exigent circumstances exception explained briefly: police officers may seize evidence where there is a danger that the evidence may be transported, damaged, compromised or destroyed – hence, police can lawfully seize without a warrant any “transportable” evidence, like cars, boats, RV’s, trailers, motorcycles, briefcases, suitcases, clothes, laptops, PDA’s, GPI’s, cellphones, cameras, etc. – when applying for a warrant after the fact the magistrate/judge will review the exigent circumstances (again remember only police officers are present during the warrant hearing)
I have personally seized vehicles, briefcases, laptops & clothes under the exigent circumstances exception & never had a problem with a warrant later or any successful warrant challenge in trial – I have taken custody of cellphones at suspected arson sites but the citizens involved voluntarily cooperated – I find 95-99% of the time witnesses are more than happy to cooperate with police
Duane, you’re giving a lot of advice here but you just clearly don’t understand the law – I’m sure you mean well but you’re giving some very bad advice that could get some people arrested
Police can’t seize any personal property unless they have a warrant or they arrest you
FLAT OUT WRONG – please see my explanation about exigent circumstances above – police seize evidence all the time without a warrant where circumstances necessitate it – such seizures are routinely upheld
I don’t support Officer Brad’s and LAPD Capt III’s statements that of course you have to follow what the police tell you to do at a crime scene. As if the people are sheep to be herded by the police.
this kind of thinking is what gets people into trouble – a crime scene is not a public meeting or a public forum or a public debate or a town hall gathering – ongoing police actions are not subject to public review or approval or reconsideration on the spot – the police control the crime scene, period, that’s the law – the public may observe, but that’s it – it’s not public entertainment, a public spectacle, public theater where you get to decide the program or change the plot – you can observe but you cannot lawfully interfere in any way
a crime scene is not interactive where the public is concerned
yes, you must listen to police officers at a crime scene, otherwise you risk arrest & you’ll be hard-pressed to find any judge who will give you a sympathetic ear – at a crime scene, the police call the shots, they run the show, that’s it – you don’t get to second-guess the police – a crime scene is not a democracy
if you have a problem with how the police conduct themselves at a crime scene, there are proper channels & avenues for dealing with that after the fact
here’s a real-life example of a similar situation in play all the time; I’ve arrested a lot of people for this & every cop I know has had similar arrests: I stop several vehicles simultaneously for moving violations, I tell each driver to wait while I write up the citations individually; occasionally, one driver will leave because he tells me I do not have the right to make him wait – he is arrested for failure to obey a police officer (a much more serious charge than the moving violation btw) – every last driver I know who has tried this has been convicted – every cop I know who has made this same charge got a conviction
why does this happen? because people have the mistaken belief they can ignore a police officer if they don’t like what he says – yes, there are rare circumstances where an officer’s order is later found to be unlawful, but they are very few & far between – maybe 1 in 10,000 – you’re going up against tremendous odds stacked against you if you think you can ignore a cop – I’ve been a police officer for more than 20 years & have never had a successful challenge to any order I’ve given; I only know 1 cop who has 1 time
again, there are lawful ways to object to a police officer’s conduct but that is after the fact – if you object by resisting you most likely will be arrested – that’s the way the system works
{why does this happen? because people have the mistaken belief they can ignore a police officer if they don’t like what he says – yes, there are rare circumstances where an officer’s order is later found to be unlawful, but they are very few & far between – maybe 1 in 10,000 – you’re going up against tremendous odds stacked against you if you think you can ignore a cop – I’ve been a police officer for more than 20 years & have never had a successful challenge to any order I’ve given; I only know 1 cop who has 1 time}
Officer brad ignored also my article from the Wall Street Journal which states that cops lie much more often than he is suggesting. 1 tin 10,000? Re-read the article please and cite sources to rebuff.
Thanks
We really need to thank Officer Brad for showing us how the system works. He showed us just how the Law Keepers become the LAW MAKERS. Instead of consulting his departments Operations and Procedure manual he chose instead to have a discussion over some donuts with his fellow LAW MAKERS about this. The Law Keeper’s ultimate tribunal of Law Making and of course they all came up with the answer they wanted and a way to trample the rights of those they are sworn to protect. Officer Brad thank you for this insight into how the system actually works and how laws are made. The only mistake Officer Brad made here is he chose to post his findings in a public forum where it might get some public comment. The police tend to not like public comment about their LAW MAKING activities.
Officer Brad knows just how to develop voluntary witnesses. This is exactly what the court system and the people actually want, voluntary witnesses. They don’t want people that have been arrested and forced to provide testimony.
Officer Brad and his Law Making buddies forget that witnesses aren’t suspected of any crime, which by Officers Bard’s information on how to handle them is exactly how they are being treated. The Police don’t have a reasonable suspicion that someone who is a witness of a crime actually committed a crime and thus is not subject to arrest.
The first question I have is what is the difference between detention and arrest? Once a person isn’t free to go they are arrested. If after I gave my name and contact information and an officer told me I wasn’t free to go I’d ask him if I was under arrest. If he said no and I had someplace to be I’d leave with my camera and cell phone. Officer Brad doesn’t know that I’ve been a witness to several crimes in my life. I’ve even been the one to call 911 and reported the crime. All I’ve ever been required to do at the scene is give my name and contact information and sometimes a brief statement at which time I was free to go. This is how it’s supposed to work.
So Officer Brad and the rest of his tribunal not only condone manufacturing a crime to arrest an innocent person they set about creating a pretext under which to do it. Then use that pretext to violate a person’s privacy by searching their private property and they to justify their actions under exigent circumstance. What Officer Brad fails to mention is that the property he has seized and where that seizure was later upheld the property was seized from the actual suspect of the crime. I could just see Officer Brad choosing the best looking female witness of the murder and seizing her clothing under exigent circumstances because he wanted to have a better look to be sure she wasn’t involved.
I have quoted from two authoritative sources regarding witnesses to crimes yet Officer Brad chooses to ignore what these sources say and instead depend on his ad hoc LAW MAKING tribunal. The Connecticut State Trooper Procedures and Operations Manual is very clear on how to treat witnesses.
Now I’m going to use a historical attempted murder to illustrate this exact case. When John Hinckley attempted to murder Ronald Reagan on March 30, 1981. There were lots of cameras at the scene of that attempted murder. Yet the Secret Service didn’t seize a single one. All the footage aired that night on the nightly news and the stills appeared the next day in the paper. Now just what is it that the Secret Service knows that Officer Brad doesn’t?
In the BART shooting the reason the BART Officers were trying to take the cameras is because they were trying to protect their fellow LAW MAKER and prevent bad press.
I forgot to touch on Officer Brad’s contention about a multiple car moving violation stop.
In this case the driver is actually the suspect of a crime and is under arrest and thus detained until he gets his summons at which time he is free to go. So Officer Brad is correct, he gave the driver a lawful order to remain until he received the summons.
What does this have to do with a witness anyway?
{In the BART shooting the reason the BART Officers were trying to take the cameras is because they were trying to protect their fellow LAW MAKER and prevent bad press.}
This is exactly why people resist the Officers. It’s an illegal order and should not be obeyed. When the people are arrested, it doesn’t make it to court because they are released hours later at the jail with no charges. Why no charges? because a judge would slap the officers around for disobeying the law.
Duane, I’m not here to debate you – I’m not going to read everything people link here & get into a debate – I’m telling you how it is on the street from the perspective of a cop with 20+ years of experience – you’re reading things on the internet & you think that’s standard operating procedure; I’m telling you how the criminal justice system works from somebody who’s been inside the system for 20+ years
my department, for example, doesn’t even have an “Operations and Procedure manual” – there’s where internet reading & reality don’t match up – so you’re going off on a tear about me not reading something that doesn’t even exist for my department
I don’t debate on duty & I don’t know any other cop who does – if someone doesn’t follow my order, he’s warned & told he’ll be arrested – if he persists in not following my order, he’s arrested – that’s it, end of story – that’s how cops work; we’re police officers, not debate monitors
if you want to argue with me & not follow my orders, then you’ll be arrested & you’ll have to deal with it from there – the justice system will handle it – it’s no sweat off my teeth – I arrest people all the time, day in, day out – my job is about maintaining law & order – if people don’t follow my order, the legal system will resolve it – I don’t take it personally, I don’t lose my temper, I don’t shout or hit – I simply arrest & process through the system – I’ll even let you collect yourself if you’re crying before I shoot your booking photo (I’m one of the rare cops who does)
Once a person isn’t free to go they are arrested.
wrong – witnesses can be lawfully detained for a reasonable period & are not under arrest
I’ve been a witness to several crimes in my life
“several crimes” is not a lifetime of experience my friend – I see far more than “several crimes” most every hour when I’m on duty in the field
All I’ve ever been required to do at the scene is give my name and contact information and sometimes a brief statement at which time I was free to go.
many times that’s what I do but it’s always up to me, not the witness, depending on the severity of the crime & whether a detective is coming to the scene
not only condone manufacturing a crime to arrest an innocent person
Duane, when you make statements like this, your agenda is loud & clear – you make blanket assumptions & conclusions about me based on nothing – you wouldn’t know me if you fell over me – reality is not like “The Shield”
he has seized and where that seizure was later upheld the property was seized from the actual suspect of the crime
here’s a perfect example of you leaping to conclusions without any facts
every one of those examples I cited were seizures involving witnesses or third parties, not suspects – this just happened on Thursday where I seized a vehicle belonging to a third party under exigent circumstances; I obtained a warrant the next morning without a hitch
Duane, my friend, there may come a time where you’ll realize, sadly, that ignoring a police officer is not the smart thing to do – you remind me of the kid who will only learn that the stove is hot after he puts his hand on it, no matter how many times he’s warned beforehand
if I’m at a felony or homicide scene, my highest priority is bringing the perpetrator to justice – I’m not really sympathetic to uncooperative witnesses who don’t want to be inconvenienced – I’m thinking about the parent who has had a child murdered or the woman who has been raped or the elderly widow who has had her wedding ring stolen – they’re my priority, not the witnesses
One might also ask in the context of the BART shooting, why a police officer would decline to follow all (or any) of the steps Officer Brad laid out.
In this case the driver is actually the suspect of a crime and is under arrest
Duane, here is an example where you show your lack of understanding of the law & your sweeping statements get you into trouble
a moving violation is not a crime – it’s a summary offense
when you’re detained for a summary offense, you’re not under arrest
the whole point of my example, however, was how people commonly & mistakenly believe they can ignore a cop when they don’t agree with what the cop tells them
read the caselaw – courts overwhelmingly concur that when a person fails to obey a police officer, he commits an independent crime in that refusal separate from the initial matter that lead to the order – if the grounds for that order are later determined to be unwarranted, almost without exception that doesn’t excuse you from ignoring the order – you likely will be convicted of failing to obey a police officer
{One might also ask in the context of the BART shooting, why a police officer would decline to follow all (or any) of the steps Officer Brad laid out.}
I suspect he is a fake and not an officer of the law. Just a guy who watches too much CSI
I don’t know officer brad does make some good points but his 20 years of experience and not being questioned on anything he has done is that because he is so righteous or just more blue wall cover ups?
This is no longer the 60’s and 70’s where only the “hippies” stood up to overzealous police and unconstitutional actions. More people in the mainstream are starting to see it.
Video is the great equalizer. Why is it that it is so hard for Officer Brad to see people are worried about not so much the property but the destruction of evidence. Why can’t he see we want this to come to the light of day make sure police who break the law are being charged with crimes. Unless the blue wall is just a myth. How about it Brad are the fears of the public that the police might destroy evidence when it is one of their own at risk completely unfounded?
Or are he and his force so upstanding they never committed or seen crimes committed in the name of upholding the law or is he just that blind?
{Or are he and his force so upstanding they never committed or seen crimes committed in the name of upholding the law or is he just that blind?}
Seems the WSJ article is pretty much the answer to this question. Look further up and find my link to the article. It’s pretty obvious. CSI Officer Brad is concerned with evidence to put bad cops away for breaking the law.
I already read it thanks Sentinel. It was a good read really nothing new to me though. I grew up in the south dealing with good ol boy sheriff deputies and be arrested and lied on more than once. It is amazing to see first hand the ease of speech and smugness of police lying in front of a judge.
Officer Brad belongs to some 3rd rate police agency. His agency doesn’t even have a procedures and operations manual. How bush league can you get. He hasn’t stated any qualifacations other then his 20 years experience in this un-certified agency to support his statements. Just because that’s how you’ve always done it around there doesn’t mean that’s the correct way it’s done.
So basically all he has to support any arguement he makes is what he believes to be correct and how he’s always done it.
Officer Brad is right about one thing. He’d come up with some pretext to arrest me.
That’s when the fun would start for me. I have the time, the money and the know-how to fight back. Has anyone ever had a police officer tell you he’s got all day. Well I have all year and the next year if need be. He might go home that night with the impression he won. It would be a short lived impression however.
Be sure to watch The Colbert Report tommorrow evening at 11:30PM on Comedy Centeral. I’m on there about the incident in Penn Station NY. It’ll be really funny trust me. The show repeats several times on Tuesday with the last showing at 8:30pm.
Unless the blue wall is just a myth. How about it Brad are the fears of the public that the police might destroy evidence when it is one of their own at risk completely unfounded?
Kilroy, the blue wall is almost entirely a myth perpetrated by fanciful Hollywood programs like “The Shield”
I spent the first 15 years of my police career on the force of a very large metro agency, since then I’ve been on a medium size force in a nearby city – so I’ve spent my entire career in a major metro area & know a great number of officers from both my own & nearby departments
I do not know one police officer who would risk his honor, his reputation, his career, his family’s security & his pension to protect a dirty cop – I’m not going to lose everything to protect someone who’s dirty & I don’t know another officer who would
yes, on very infrequent occasions cops disgrace their fellow officers & destroy evidence – there is a system in place to deal with them at even the smallest department
it’s not the job of citizens on the street to police the police – if you think a police officer has done something wrong, get his name or badge number & report him to the appropriate authority, an IE division or prosecutor – don’t take the law into your own hand because that puts you on the defensive – no citizen has the “right” to ignore a police officer because he thinks that officer might be protecting a corrupt cop – that’s insanity
I’ve spent a good part of my career in high crime areas where lawlessness is rampant – I’ve seen first-hand the effects of the “Stop Snitchin’” campaign where people are terrified to turn to the police because of lawless thugs who intimidate them – it creates a tragic spiral trapping countless numbers of innocent people
the police are there to help law-abiding citizens – when they ask your cooperation, you help them maintain law & order when you cooperate – they’re working to protect your city, your town, your community
because without the police, who are you going to turn to?
Wow.. what an about face from Officer Brad.
In the case of the BART Police Dept. I think there is ample evidence that there wasn’t a system in place till after this shooting to deal with bad cops. It’s also obvious from some of the conflicting statements that are public that there is some type of a cover-up underway. Even the judge is already aware there is testilying going on.
Of course it’s the job of the citizens to watch their police forces. To think otherwise is just fool hardy. Why do you think in New York City they have the Civilian Complaint Review Board. The purpose of that board it to provide civilian oversight of the police department. New York is not alone in having Civilians review the actions of the police department.
I’m glad you have spent time in high crime areas and saw the effects of “Stop Snitchin” campaigns. I think you took the wrong lesson away from that experience however. Did you ever ask yourself exactly why the citizens in those areas stopped cooperating with the police. It’s not because the lawless thugs that were over running the neighborhoods were seen as the police by the very citizens they were supposed to protect. That’s why the people stopped cooperating, they decided they couldn’t trust the police to protect them because the police were constantly harassing them. Think of how you told me you’d treat me if I refused to surrender my cell phone or camera when you demanded it, because after all whatever a policeman tells you to do is law. You’d find a reason to arrest me and then seize my camera or cell phone. Just how long do you think I’d be cooperative. Do you think I’d ever volunteer I had photos or videos again? Do you think I’d ever report a crime again if I knew you were going to take my property from me for some undetermined length of time. The cops brought those “Stop Snitchin” campaigns on themselves and actually caused the problems in those neighborhoods because they were so rough with the people and completely trampled their rights.
The lack of cooperation with police departments in those areas happened because of how the police departments treated the citizens. The citizens decided they’d rather trust the law breakers and gangs then the police departments. They thought they’d get more ‘protection’ from the thugs that weren’t wearing blue and didn’t have badges.
Remember I never said not to cooperate with the police. I never said don’t give them your name, I never said don’t offer to be a witness, I never said to not give them a copy of the photos. I said that the police didn’t have the right to seize your camera or cell phone no matter what photos might be on it. Cooperation is a two way street, cops need to learn this. Cooperation isn’t something you get by using an iron fist, handcuffs, guns and the power of arrest. Those are the tools the people have given to police officers to use on actual suspects, not witnesses.
Cooperation is something you get by respecting the people you’re supposed to respect. By respecting their rights to their property, by respecting their rights to free travel, by respecting their rights to be free from unwarranted detention. You don’t get it by detaining witnesses for hours while you figure out how to coerce them into cooperating. Those tactics end up with people hating the police department and not wanting to have anything to do with police officers.
Because without the public who is going to help the police do the proper job?
In Canada the Criminal Code gives powers to police and also has statutes protecting the police while engaged in the lawfull execution of their duty. am a member of the RCMP one of the worlds leading Police agencies , we do not have an operations and procedure manual, what we do have is a policy manual that is constantly evolving. this document is meant to guide an officer in their daily actions. no one has the right to interfere with or obstruct an investigation. Fail to disobey me while I am acting under my authority and you will be arrested and may be charged for obstructing a police officer in the performance of his duty.
I will not jump over the counter to telll or show someone haw to make the burger, or hop the stage to tell the singer how to sing . I will not tell teh pilot how to fly his plane I expect, no I demand teh same courtesy from the public.
Excuse the errors very tired worked all night and seeing double
Ok I am now convinced either Officer Brad works at Fantasy Land, works as Officer Friendly in Elementary schools or is not a cop.
I wish we had such honorable public servants, that you seem to work with, but they are few and far between in Memphis and the surrounding metro and Mississippi area.
If they don’t like you they will lie in court , plant evidence, assault you, harass you especially if you try and file a report. Your imagined blue wall is alive and well in the south.
As for the shield I never really watched it but maybe you should read a biography about a cop from New York named Frank Serpico or just watch the evening news.
As for your go to the IAD for help routine, you sound incredibly naive, like a child who still believes in Santa Claus.
DJ Motorcop
Fail to disobey me while I am acting under my authority and you will be arrested and may be charged for obstructing a police officer in the performance of his duty.
I promise I will disobey you then.
I want to write more but I have to go in 3 min, I’ll do more when I get back.
What I’m talking about is when an officer exceeds his authority. When an officer is acting outside the law. When they just assume because they have the guns, handcuffs and badges that they can do whatever they damn well want when they want and F___ anyone that gets in their way..
Once again Officer Brad is 100 percent correct. The procedure he explains is consistent with LAPD policy as well. If you’re foolish enough to disobey a police officer at a crime scene, you will be arrested and prosecuted. Your future employment may be jeopardized by an arrest and criminal record. If this happens, you will have no one to blame but yourself for breaking the law. If you insist on being a fool, be prepared for the consequences.
The modern day police version of a good public.
Yes massa I’s be a good citizens no needs for yall to beat on me sir I obey yes sir Do a dance sing a song what eva ya need.
However what LAPD said above is correct this is why passive resistance won’t work in this day and age. People don’t have the time or the money to stand up for their rights in a court of law because most can’t afford it.
They have the the dealer paid off and play with a stacked and marked deck.
How can the common man win?
“because without the police, who are you going to turn to?”
Oooh, that’s an easy one. Smith and Wesson.
Like I said I was exhausted when I wrote that. It is fail to “obey ” my lawful commands and yadda yadda yadda.
The definition of a good citizen is one who does not engage in criminal activity, one who reports criminal activity and finally one who does not hinder others going about their lawful activity. This would also include not hampering the police. I have been photographed more times then I have had hot suppers. In my red serge and on my motorcycle I have been in the press on the news in Canada if you are in public you are in the public domain and can be subject to be photographed. However do not photograph my crime scene as you may capture images and evidence that we use to exclude suspects who make false confessions. Your photo could cause distress to the loved ones of the victim and you could also reveal investigative techniques and methods employed to preserve and gather evidence. Do not enter or obstruct my crime scene. Do not impede my way or the ingress or egress of those authorized to be in my crime scene. At natural disasters and fires etc there will be a safety zone set up for the safety of all concerned. Please respect that zone. You can snap my photo while I am working with the exception of the above example. I have been photographed handcuffing suspects, escorting the Queen, the Prime Minister, the Rolling Stones and criminals in custody. Snap away with respect and you might even get a smile.
Officer Brad sounds like a very well trained member of law enforcement and has gone out of his way on this forum to cite case law as well as relevant examples.
In Canada any material witness can be detained to be interviewed (even held in protective custody in some cases) any images or recordings they posses can be seized for examination and use as evidence. If not surrendered voluntarily they will be seized on a warrant, but can taken for safe keeping until a warrant is obtained. If a warrant is denied then the objects are returned. I have even seized footage shot by the CBC and as well reporters recorded interviews of suspects these professionals held the requested items in safe keeping until we obtained a warrant so as to protect their professional standards. Their assistance in many cases brought criminals to court to answer for their actions. In all things be professional not adversarial and respect will surround your actions and deeds.
DJ Motorcop,
Let me take this time to say that I do appreciate officers like you, Officer Brad, LA Chief III and Karl Mansoor for coming on this blog and stating your opinions.
Obviously, the majority of people on this blog are skeptical of police so it might not seem like the most welcoming place.
But it does allow for much-needed dialogue between officers and skeptical civilians.
And to the other skeptical readers who doubt these are cops, I personally believe they are cops. I have no reason to believe otherwise.
DJ Motorcop,
You are doing a good job here, thanks for being here and contributing. I’ve spent a lot of time in Canada. I’ve been in all but PEI, NT and NU on a motorcycle. My last big trip in Canada I rode on my motorcycle from St. Stephens, NB to Beaver Creek, YT. Then came back into Canada at Little Gold Creek, YT and crossed the Peace Bridge from BC into Washington. You can see photos from the trip here, http://photos.duanek.name/gallery/191835_DKJon#7298924_jsXJF. I also dated a woman that was on the OPP for a short period of time. Law Enforcement Officers in Canada, in my experience which isn’t that great tend to have different personalities then many in the USA.
While Canada and the USA are similar in their basis of law, English Common Law the founding of the two countries is very different. The USA is the only country ever founded by a revolution lead by the proletariat class. It’s one of the reasons our Declaration of Independence and Constitution are considered such important documents. It’s also why the government of the USA is given powers which must not infringe on the rights of the people except in very specific cases. This is what causes problems in this country when people that work for the government begin to believe the government has rights. The Constitution does not give the government or any of its agencies any rights only powers. I don’t know enough about the Canadian Constitution to comment one way or another.
I have even seized footage shot by the CBC and as well reporters recorded interviews of suspects these professionals held the requested items in safe keeping until we obtained a warrant so as to protect their professional standards. Their assistance in many cases brought criminals to court to answer for their actions. In all things be professional not adversarial and respect will surround your actions and deeds.
What you are saying here is exactly what I’ve been saying all along. I’m sure the CBC either gave you a copy or made a copy for their use, and you both went away happy. You acted towards them as professionals and in turn they acted like professionals. In our country officers tend to become adversarial with people when they don’t have a need to be. That’s been my point all along. Don’t come up to me demanding that I had over my camera and cell phone because I’m not going to. Ask me for a copy of the photos or to email to the police the photos from my cell phone and you’re going to get cooperation. Don’t come up to me demanding that I answer questions or you’re going to lock me up, ask me nicely and I’ll tell you everything I know. If I have someplace to be and my answers aren’t going to make much difference time wise, suspect is already identified or something like that let me go on my way after you get my contact information and important information that can be gleaned in 5 minutes. I’ll give you the hour or two when I have the time the next day.
This is exactly how the FBI and the US Attorney’s office treated me when I was a witness to a major federal crime. We set up an appointment for me to come in to the US Attorney’s office and give them my information. When the FBI agent showed up at my house to ask me questions he didn’t pester the crap outta me, insist I answer or else, or annoy me. He said if it wasn’t a good time he’d make an appointment with me when it was a good time. I answered questions for four or five hours when it was a good time for me.
Also while Officer Brad and LAPD Capt III say this is what the case law is they haven’t cited a single item, noting that I can go and read. LAPD Capt III likes to say in several places this is what the manual say but has never bothered to quote from it verbatim. When I asked Officer Brad to cite something he came back that they don’t have a manual, but he and his fellow officer sat down over some donuts and discussed it and that’s how it is, oh and let’s not forget the pissing judge verified he was correct. Now how the, very liberal, judge could concentrate completely while doing something as critical as taking as micturating without missing the urinal is beyond me. It almost makes me wonder if the judge pisses with a wide stance, or taps his toes in some obscure rhythm. Did Officer Brad show him his badge and do some finger pointed to explain why he was asking? , I digress from the point at hand but those were supposed to be funny.
I didn’t know the RCMP called it the Policy Manual. Every certified law enforcement agency in the USA has some kind of manual, whatever they may call it. I live on the border of 3 towns, 2 of those towns have certified departments and one doesn’t. You can tell the difference between the officers from the certified departments to the ones that aren’t as you meet them in restaurants and places like that. When I cite a source I provide a link to it so you can refer to it or I provide the actual citation so you can find it with a simple search.
This is totally off topic but it illustrates my points. On my way home today I stopped in a mall with a takeout food place. As I arrived a police officer also arrived parked his patrol car in a proper parking space and went into the food place to get lunch. I’d like to meet this officer if I was in some kind of trouble. When I came out of the store another police car was parked in the fire lane in front of the food place. As I was getting my camera out to take some photos the officer came out of the food place with several bags of food. I was going to walk over to that officer and point how bad an impression and example he was making but didn’t bother, I don’t think he would have heard me anyway. While conducting personal business in the public’s car he decided to flaunt his authority and park in a fire zone. If I did the same thing I’d get a ticket that has a fine of $100-200 plus court costs and sometimes carries an additional community service requirement. This officer should be in a different line of work because if he’s abusing his authority for something as simple as this what is he doing about important official business.
The statement, “the blue wall is almost entirely a myth,” was made at comment #125.
I could not disagree more.
My police career tells me something entirely different and when I hear of similar observations from family members and friends still active in law enforcement in multiple agencies, large and small, it further solidifies my belief.
When I see many news accounts disclosing police abuse of authority and other forms of misconduct and the vigorous sustained efforts to conceal such incidents, I cannot accept when people say there is no “blue wall” or “code of silence” or that it is minimal.
None of that means that I believe all or even a majority of law enforcement officers are corrupt. I don’t believe that is so. But police abuse of authority, misconduct in all its forms, and an attitude of arrogance are all much more widespread than most police officers are willing to admit. The effort to conceal all of that is even more pervasive.
But rather than a continued lengthy comment, please allow me to link to just a few specific reasons with back up. (I could have used the word “references” instead of “back up” but cops like back up)
http://www.karlmansoor.com/More_Information.html
Karl,
What an awesome post and really amazing “back up”. I can tell you from my case that abuse of power and the code of silence exists. When I can I’ll release more information.
Carlos, sorry for the hijack. The Colbert Report will be airing a segment about what happened to me this evening at 11:30pm EST on comedy central. The show will repeat several times with the last showing being at 8:30pm Tueday. It’ll then be embedded on my site from http://www.colbertnation.com.
Carlos broke this story to the world at http://carlosmiller.com/2008/12/27/amtrak-police-arrest-photographer-participating-in-amtrak-photo-contest/
{And to the other skeptical readers who doubt these are cops, I personally believe they are cops. I have no reason to believe otherwise.}
Neither has anything been provided to validate their claims. I’m sorry but I simply don’t see anything here.
Oh and part of my work does involve fraud detection and validation. So you’ll pardon my skepticism.
{In Canada any material witness can be detained to be interviewed (even held in protective custody in some cases) any images or recordings they posses can be seized for examination and use as evidence. If not surrendered voluntarily they will be seized on a warrant,}
So are you suggesting everything done in this particular incident was proper?
How many murderers do you know are able to walk away from a murder scene and get arrested two weeks later?
{“because without the police, who are you going to turn to?”
Oooh, that’s an easy one. Smith and Wesson.}
I have a couple of Targus handguns. They are 7 shooters and works really well
They go great with my CC permit
{Ok I am now convinced either Officer Brad works at Fantasy Land, works as Officer Friendly in Elementary schools or is not a cop.}
At least he does a good job of avoiding the actual question here. The point of the discussion I thought was did the BART officer do the wrong or right thing in murdering that guy.
Neither has anything been provided to validate their claims. I’m sorry but I simply don’t see anything here.
Yeah, but it doesn’t really matter, just look at what they’re advocating. They are arguing for an authoritarian attitude for the police. It doesn’t matter whether they’re actually officers or not, the difference is that their philosophy is such that the police should be able to do X, Y and Z and that citizens should have no say in how they do it. They don’t see a problem with that, and furthermore that it should be even moreso than it is now. I’m not a big fan of “shut up and eat your cake, citizen” philosophies, and history tells us that that attitude will cause the police to lose their effectiveness, but you can’t change peoples’ minds just by showing them a video of an officer shooting a restrained person in the back. To them, this is how it should be.
From post 144 u235sentinel ” The point of the discussion I thought was did the BART officer do the wrong or right thing in murdering that guy.”
No, his actions are indefensible.
The topic here is whether or not the police have the legal power to arbitrarily seize personal property of those who witness a crime.
To which I have replied several times no. Granted I am not as articulate and flowing of the literary muse as some others here but I don’t think I have delved off topic.
I have experienced this very thing several times. Once I was even placed under arrest for not relinquishing my video tape. I was told it was evidence and I was a material witness. If I did not cooperate I would be detained until they got a judge to sign a search warrant allowing them to take the tape. I was placed in an unairconditioned police car on a 100 degree day.
My feelings are actually torn.
From a law enforcement angle the video or pictures may be the only real evidence. If they allow you to leave you have chain of custody concerns, integrity concerns and a real concern the evidence could become lost or stolen.
However, those concerns often become paled when the evidence in question points to police wrongdoing. Too often tapes or digital cards are returned blank.
As for me, my reputation to go public keeps me pretty safe. I also carry a portable JVC DVD burner where I can make copies in the field if need be.
I also ALWAYS carry additional recording devices. I have two slim Olympus digital audio recorders that fit unnoticed in a shirt pocket, my cell phone records audio and/or video and I also carry a DVR cell phone.
I don’t worry about the honest cops. My problem is I have yet to come across one! (okay, that was in jest, but close to the truth)
Here is an outtake from the article I just wrote about Bates, the above commenter.
“They arrested me at the scene and placed me in a police car when I refused to hand over the tape – I offered to make a copy and give them the copy, which I have always been allowed to do since 1996. They said I was being arrested as a “material witness” and I would be held until they got a court order to seize my videotape.
They cuffed my hands in front of me. This allowed me to get to my cell phone. I already had the local news stations on speed dial and I called them all – telling them I had a police beating on tape and they were trying to destroy the evidence.
Within minute the scene was full of media. The Lt. at the scene call the chief of police. The chief asked to speak to me. He agreed the Lt. would give me a written note stated I will get my original and unaltered video back by noon the next day – to which I agreed.
The police insisted on unhandcuffing me while still in the car so the media would not get images of me (the witness) in handcuffs.
I got the tape back as promised.
The funny though was the DA did not know I had the original tape. During the investigation he had the tape altered to take out a threat against Donald Pete’s life (made by the first officer on the scene). When I realized this I went public with the unaltered tape which clearly had the threat against Pete’s life. Pete said that threat was what made him hesitant to be handcuffed.
Exposing that is what got the DA after me.”
Read his story here.
http://carlosmiller.com/2009/02/03/sooner-state-boasts-its-own-video-vigilante/
Duane Kerzic
You rode through NB to get to PEI, I bet , I am stationed in NB and who knows we may have passed each other on the roadway.
I know there is a a siege mentality in all police agencies that leads to that thin blue line, the blue wall and code of silence culture.
I have always tried to conduct myself as if my mother could see every move I made. I have had to give statements regarding the conduct of fellow officers on many occasions. I tell the truth and keep my opinions to myself. What I see is what I see.
When I was a field training coach I told my rookies to treat everyone like family. To behave as if your mom was watching. One rookie asked what do I do if I get into a fight? I told em fight in way that would make momma proud, when the suspect and down and cuffed it is over.
Some rookies questioned the “treat everyone like family” statement. If your uncle Joe had to much to drink and was combative, and you had to use force to calm him down, then that is the same type of force you should use to calm down some body else’s uncle Joe. temper your reaction to counter and stop their action.
We still loose our cool yell and shout, because we all have times when the stress and anxiety gets to us, especially when our life and the lives of others are in danger.
We have a guy here in NB called “News Chaser” and he posts on U Tube. You can see his best motor cop video, of my partner, in an MC chase of a naked suspect in a car if you query Moncton naked chase. He video tapes us all the time and is sort of a cult figure, the guy is very respectful and he is well tolerated by us. He has lots of videos on u tube and he always lets us know what he has in case we need a copy. he shows up for chases and gun calls and fights and never ever gets in the way.
As a police officer I realize that sometimes the eyes of the public are on me and sometimes those eyes are behind a lense. The vast majority of my fellow officers understand this and strive to be professional and respectful to everyone. We allways hope that respect comes back to us.
It is all bout respect. I go out of my way to ensure the on scene journalist is safe and it is up to them to get the shot from outside the no go zone.
If all law enforcement officer acted as you then quite possibly this blog would have never been started.
Sadly this is not the case.
Officer Brad and LAPD Captain you should be taking notes.
I’m very impressed by the patience and professionalism Brad and Captain show here. They ignore the baiting and name calling and explain how the law and police procedure work.
I don’t understand some of you people though. You seem to think the police will make a personal exception for you. The highest priority at a crime scene is solving the crime. The public can observe but not interfere. You seem to want to be allowed to interfere in a police investigation and then get huffy when you’re told you can’t. When police officers come here and patiently explain how that can’t happen you attack them with all sorts of anger and spitefulness. It makes no sense to me. What do you want? Do you want the police to compromise the investigation so you can get interesting photos? Do you think you should have some sort of special treatment?
VA Master Trooper: You betray a lack of knowledge in your post here. The rank and file officers being discussed here do not “solve crimes.” Their job is to protect the rights of everybody involved. As much as they might aspire, they are not investigators and they are not immune to Bivens.
VA Master Trooper,
Welcome to the blog.
I don’t believe a citizen is “interfering” with an investigation if he is filming or photographing an incident or the ensuing investigation, as long as he maintains a respectable distance.
Many court cases have determined that it is legal to document police and police investigations, although this information never seems to trickle down to the officers because they continually make these arrests.
For almost two years, I’ve been documenting these cases on this blog and they always end up with the judge ruling in favor of the photographer.
My case is a slight exemption because even though I was acquitted of most charges, including disobeying a police officer, I was convicted of resisting arrest without violence.
But that is mainly because I pissed off the judge and the prosecutor, who is the son of a cop, with my blog.
The only evidence they used against me were the words I publish on this blog and the prosecutor, which the encouragement of the judge, was able to convince the jury that I have a “history of bias” against police officers because of my blog.
However, I didn’t launch my blog until after my arrest, so it’s hardly “history”. This most likely will be reversed in my appeal.
You even said the public can “observe” police, so documenting police with cameras is really no difference than observing because you don’t have to be interfering with the investigation to document these incidents.
The main debate here is whether or not police can confiscate a citizen’s camera who happened to document the investigation.
In writing my story, I’ve quoted two attorneys. There are also a couple of actual examples in the comments section of this article where a news agency and a citizen refused to turn over their camera and police were forced to get a court order.
Although the officers who have been debating this issue on this blog have remained professional and respectful, which I appreciate and wish we all can do the same, they have not provided any actual case law or examples where police can legally confiscate someone’s camera without a court order.
DJ,
I think I wasn’t clear in my last post. I’ve gone through NB 4 times, I think. I lose count sometimes. 1st time on my way home from a trip to Montreal, then to Quebec City and around the Gaspe and then home across NB. Next time was on a trip to Labrador and then home so I’m counting that as two trips. Last time was on my way to Alaska. On this last trip I crossed the Eastern most, Western most, Northern most and Southern most crossings between Canada and the USA. Going through Customs into Canada on this trip was interesting because I had “Bear Deterrent Spray” with me. The Customs official in NB never saw the stuff before. That is a story in it’s self that’s not for this site.
The respect you talk about is exactly how I’ve always perceived the officers I have met in Canada. When I got stopped just south of Matagami, QB on my way to Radisson by a QPP member for going 125 in a 90 on RTE-109 it was just such an encounter (I’m not going to say I don’t like to drive fast at times and I’m not saying I’m perfect either). I was stopped before he even got the car turned around. He gave me the pamphlet on why I shouldn’t speed in QB and said, ’should you learn to read french this will be helpful”. We both laughed and he said he had to give me a warning since he checked my plate. I tend to try to talk to officers because they know all the out of the way, unusual stuff to see and take photos of.
I understand we are all human and just trying to do our best. I understand that.
I don’t want to violate your crime scene, interfere or get in the way. I just don’t want my stuff taken away from me and that includes my photos. Especially when there are other ways for me to provide the police with the contents of those photos that can be agreeable to all.
This is what my point all along has been. When something needs the tap of a 1 ounce hammer you don’t get the 16 pound sledge hammer out and wale on it. A little bit of respect, humility and gentleness goes much further in helping your cause.
As far as I’m concerned the officers in the USA can learn much from their counterparts in Canada. Canada is almost as racially and ethnically diverse as the USA. Some might argue it’s more so.
Oh, DJ, send me an email. I’m planning on being in Mocton in September for another motorcycle ride. Perhaps you would want to meet me and my buddies for dinner or something. Our last trip from Trinadad, CO to Portland, OR is discussed here, http://www.advrider.com/forums/showthread.php?t=410130&highlight=dockingpilot
duane
Carlos, the highest authority cited on warrantless evidence seizures is usually United States v. McConney, 728 F.2d 1195
the McConney court identified 4 allowed exceptions to warrantless seizures, two are relevant here (quoting the court’s language specifically):
“the destruction of relevant evidence”
“some other consequence improperly frustrating legitimate law enforcement efforts”
at a warrant application, the police officer will explain to the magistrate or the judge about the circumstances of the seizure & why he took emergency action without a warrant – the magistrate will then decide if the seizure is proper – if not the property is returned, if so it’s retained & the warrant is provided to the person whose property was seized
remember we’re talking about seizures here at the scene, not after the fact – after the fact, a warrant would first be obtained – as I explained in my Feb 1, 2009 comment at 9:50 AM, the seizure would be made & then a warrant application made shortly after
when police want to see news footage, that’s almost always after the fact – because the media is known to the police, the police know they can easily find the photographer or cameraman & secure a warrant if needed – that’s not the same for spectators with cameras unknown to the police – for that reason a magistrate would almost certainly not grant a warrant after the fact for a seizure from somebody in the media but would when the photos were being taken by someone without media credentials because that person may be untraceable once he leaves the scene
in my experience the media almost without exception is extremely cooperative – they want info on background so they’ll gladly trade their footage
one other thing Carlos – each state has its own caselaw on warrantless seizures so there will be some difference state to state, you need to read the caselaw for your own state – the BART incident happened in California, where courts have allowed police more leeway – in California, a police officer could examine the cellphone footage before the warrant application but in other states (including mine) he could not or the caselaw is not yet specific on this point
Officer Brad,
In my experience, the media doesn’t give up footage to police for the sole reason that they want to ensure an air of objectivity.
Here is a somewhat related case in California regarding Joshua Wolf, who remained in jail for more than 200 days because he refused to turn over video footage of a protest even after he was subpoenaed.
http://en.wikipedia.org/wiki/Josh_Wolf
maybe it’s just my charming smile & winning ways with the media that makes them so cooperative
Officer Brad,
Maybe more cops should follow your lead because the usual overbearing, aggressive and threatening tactics don’t seem to work, at least not with the people on this thread.
Officer Brad,
From what I’ve read just now in a quick research of that case you mentioned, it is specific to
“exigent circumstances” in cases where officers are allowed to enter a structure without a warrant.
http://en.wikipedia.org/wiki/Exigent_circumstance
The existence of exigent circumstances is a mixed question of law and fact. There is no absolute test for determining if exigent circumstances exist, but general factors have been identified. These include: clear evidence of probable cause; the seriousness of the offense and likelihood of destruction of evidence; limitations on the search to minimize the intrusion only to preventing destruction of evidence; and clear indications of exigency.
So in other words, if I am a drug dealer and you believe I am flushing a kilo of cocaine down the toilet, then this exception in the law might allow you to break down my door.
But it really doesn’t apply to what we’re talking about because logic tells us that somebody who films police doesn’t do so with the intention of deleting the video or “destroying the evidence”.
On the contrary, they will most likely share this evidence with the entire world, which is what the police actually fear.
Carlos, you have to read the caselaw – Wikipedia is written by anyone & everyone, it’s not caselaw
caselaw is not about matching facts of a case that was appealed to a matter at hand – it’s what the court said about where the permissible divide lies between constitutional & unconstitutional action
Roe v Wade for instance relied on caselaw that wasn’t just about abortion, all sorts of issues like privacy & permissible state action were raised
the court in McConney specified when exigent circumstances apply in warrantless actions, not a specific type of case
whether or not the warrantless seizure was made under exigent circumstances is up to the magistrate & no one else – if I think it’s allowed but he says no, then it’s no – that’s why police officers generally apply for warrants when they can but seize when they can’t & apply after the fact – then the magistrate or judge decides – the officer proceeds on the side of caution
the magistrate very well may agree with your point but it’s the magistrate who decides, not the officer, not the witness – he may say the seizure was too broad so the material is returned – that’s why we leave questions of law up to judges & magistrates – they’re the experts on these matters
there very well may come an an appeal at some point that says the exigent exception does not cover a witness’s camera, but until that point, cops & judges use the available caselaw
remember, law is not about logic as much as it’s about “reasonable belief” – would a police officer have “reasonable belief” that the photographic evidence could be destroyed – that is the question the judge or magistrate will consider
in this very thread you see people posting comments that they would obfuscate the evidence – so if I was making a warrant application, I could use those very comments to support my argument that I had “reasonable belief”‘ an unknown witness could destroy evidence
I so love a good debate that does not just fall down into a mud slinging argument.
Ok everybody loves examples so lets add some examples with some WWYD type questions.
As the BART shooting is fresh in everybody’s mind lets start with that one.
You are out for a nice day of picture taking in the Bay Area (something I really did not all that long ago) with family and happen to be using BART to get to where you think your pictures are calling out to you and witness the scuffle that eventually ended in the tradigy and start taking pictures as “Human Drama” interest not knowing at the start what you will end up with. You are then approached and ordered to hand over your camera to a BART officer.
Now I in NO way want BART police to end up with the only copy of my pictures. Sorry I just cant trust they will survive to get to any trial and WOULD resist any attempt by BART officers to confiscate my camera. On the flip side I would be willing to offer COPIES of then to City or county LE (straight off my camera if they asked). Even then I would have no intention of leaving my camera in the custody of the police.
What would our posting LEO’s do if this happened to be you on the platform with the camera at the time?
Right or wrong I believe would end up being decided in front of a Judge, but I also fully believe that if BART had gained full possession of the only copies of those photos my camera would have suffered a technical failure in which no photos could be recovered if they showed BART officers in anything but the best of light.
Ok something with a bit less of the “morally right, legally wrong” overtone possibilities.
You are out at night taking pictures of a nicely lit up bridge over some body of water from a city park. City cops come by and demand to see your pictures. They demand that you erase your pictures or they will confiscate your camera and arrest you.
Officers of the law have made a request. According to LEO’s posting here those requests should be accepted as orders and unless deemed unlawful by a judge assumed to be lawful.
Sorry but I can not and will not accept that every request by LE is a lawful order unless and until told differently by a judge. However popular media had attempted to train civilians such is true and LEO’s have come to expect everybody to act as if it is. A lot of them seems to get all kinda of bent out of shape if anybody dares challenge the lawfulness of anything and everything that passes their lips.
According to current statics (and I know… statics can be made to say just about anything you want) there is about 100,000 on duty LEO’s at any time or 1 for every 178 civilians in this country. There is no way for those 100k or so officers to properly police that many people. They absolutely need assistance from the communities they serve. I believe the only way they can continue to get that assistance is to respectfully request aid whenever they can and not take the “I am the law you will do things my way” attitude to many of them on the streets now seem to take when dealing with civilians in ANY situation and attempt to demand that aid. Anybody, LEO or non-LEO attempting to demand I do (or not do) something is likely going to be told to stick it where the sun don’t shine. Somebody respectfully ASKING me the exact same thing is going to find me a lot more willing to work with them to find something that works for both of us.
Does Officer Brad even bother to read what he posts? I think not. We now know why he resorts to his heavy handed approaches to witnesses.
You can read United States v. McConney, 728 F.2d 1195 here for yourself and decide. http://bulk.resource.org/courts.gov/c/F2/728/728.F2d.1195.80-1012.html
Actually US v. McConney doesn’t specify anything. It isn’t about warrant-less searches either. It does discuss exigent circumstances and ways of decided after the fact is such exigent circumstances existed in the service of a warrants on McConney.
A group of LEO’s had several warrants, a search warrant for membership papers in the Hell’s Angels, an arrest warrant for McConney and a Prescott Warrant. They show up at McConney’s home, a known violent felon, and the main door is open and the screen door is closed. They knock, “police, we have a warrant”. The lead agent can see McConney and another unknown person through the door. They enter before McConney says anything or answers the door. The arrest McConney on the warrant and search under the cushions of the sofa he was sitting on and find a handgun. They search the house and don’t find any papers indicating he belonged to the Hell’s Angels (he had quit years before) but find another handgun. They then dismiss the arrest warrant they went to the house on and charge him on the possession of a handgun charges.
We define exigent circumstances as those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.
While the court reiterates the definition of exigent circumstances it’s not the first to offer this definition.
Secondly these cases are about the searching of individuals that are suspected of a crime at the time. Officer Brad’s insistence on taking procedures that are intended to be applied to the suspects of crimes and applying them witness of the crime should tell you something about his charter if nothing else. To me it speaks volumes about him.
Something somewhat related. I’ve crossed between Canada and the USA and Mexico and the USA on a motorcycle many times. When I enter Mexico or Canada the customs and immigrations officials are nice polite and respectful. I’ve never felt any fear, harassment or disrespect from any of the foreign officials. Even the guy that had to totally search my bike one time because I had ‘Bear Deterrent Spray’ and he never saw it before. He also didn’t believe I was on my way to Alaska from St. Stephens, NB. After I suggested he check the tariff he thought I was being a wiseass but after he looked he found out I was correct. It’s the one thing I was taking with me that I was concerned about so I looked it up before I left so I wouldn’t be denied entry to Canada. DJ will appreciate this more than anyone else; the can had directions in both English and French so it could be sold in Quebec. You can’t have a small lipstick size pepper spray in Canada.
In all these crossings, more than 20 since 911 that was the only time I was searched going out of the USA. I wish I could say the same about reentry into the US. They ask me tons stupid questions that as a citizen I should not have to answer. What’s the purpose of your return to the United States? Where are you going in the United States? What did you do in Canada? Where did you go in Canada? Blah blah blah. My favorite is “are you bringing back any soil?” I always say I don’t know how to answer that one. Which gets me a funny look sometimes. So I tell them I ride my motorcycles on dirt roads. My motorcycle and my clothing are covered in soil. Should I answer yes? They almost always rifle through my stuff and leave it a mess. I am after all on a motorcycle and likely to be part of some criminal enterprise.
Rizzin I see your dilemma.
The second example where you are photographing the lit bridge is one where you are not in the act of any criminal activity, you are not trespassing and you have not photographed any crime or crime scene. Unless you are in a park that is clearly posted with signs prohibiting the taking of pictures then you are exempt from any action. The police (myself included) would have no lawful right to demand that you erase the pictures.
If you were involved in an incident like this I would hold onto my camera and demand that the officers call a supervisor to the scene. I would then call my lawyer. Even in my wildest imagination I could not conceive of this scenario taking place. We have no right to demand that you erase pictures. If you have pictures that are relevant and can assist in an investigation I would ask you to finish up your photo’s and then have our Ident tech come and download copies of your photo’s. There could be instances where we would take the camera into safe keeping such as protecting the identity of the victim(s) etc and to ensure the pictures are not released to hamper an investigation. Or if the pictures and or video clearly show a crime being committed.
But as the police we must ask with respect and dignity and we are accountable for our actions.
A person has the right to photograph and video tape anything or any person in the public domain. However the photog must do so lawfully and must comply with lawful requests to clear a zone for health and safety reasons or for the protection of private property. Remember that a roadway may be public but a pedestrian may only be upon it to cross at a designated cross walk or to travel on if no sidewalk is provided. Further to this you can not stand and block a sidewalk.
I can not fathom the problems in your locale as we have a healthy relationship here with our press and our free lance photogs and video buffs.
If you feel that the order is unlawful you still have to protect your self from snow balling the incident to a point where you violate a federal or state law that allows you to be arrested.
As a profession or a pastime I believe there are enough of you shutterbugs out there that you can form an association to establish a code of conduct as well as ensuring that you are all well versed in lawful conduct protocols.
I would even suggest that as a group you meet with the local police community affairs officers to iron out a good working relationship.
Mr. Kerzic, you really do need to get over your infatuation with Officer Brad. Next you’ll be blaming him for global warming and childhood obesity.
He’s simply explaining to you the stare decisis that courts use for warrantless seizures. A cop does not make a precedent argument in a warrant application. That’s a decision made by a judge. Neither Brad nor any other cop has any say in this.
McConney is an important precedent because the court specifically clarified the Whitney standard. The Hell’s Angels business is irrelevant. If you check Westlaw (I just did), you’ll see McConney is cited far more than any other case in warrantless seizure appeals.
Gideon v. Wainwright was a burglary case; however, the precedent articulated by the court applies to virtually every felony case, not just burglary. Similarly, McConney is at present a key precedent for warrantless seizures.
This is hornbook 101 stuff. Pop open Lafave and you’ll see McConney is the first precedent referenced on point.
Dear Ms. Prosecutor,
Thanks for joining the discussion. Please tell me how the Whitney standard or McConney have anything to do with the discussion at hand. I never said that either of the McConney’s weren’t important decisions. Interesting how they both apply to something done without a warrant with such an uncommon name.
We are talking about witnesses to a crime here having their property seized and searched. Witnesses that the police know with certainty have not committed any crimes and are not suspected of committing any crimes of any kind.
The only thing these people have done is happen to have been standing, by chance, in a place where they had a view of a crime being committed. Specifically, in this case Officer Mehserle shooting Mr. Grant in the back. Perhaps they took photos of the crime with their cell phones or cameras which the last time I checked is not a crime. Lisa, please stay on point with us.
Please show me some case law that allows the police to seize the property of the witnesses. McConney just isn’t doing it for me.
Now if Officer Mehserle’s cell phone was relevant to the crime and it was being seized I could understand how McConney would make a difference.
36
The mixed question of exigency is rooted in constitutional principles and policies.12 Like many such mixed questions,13 its resolution requires us to consider abstract legal doctrines, to weigh underlying policy considerations, and to balance competing legal interests. In particular, its resolution requires that we strike a balance between two sometimes conflicting societal values–the safety of law enforcement officers and fourth amendment privacy interests. The essential and difficult question raised by this balancing is how much risk police officers can reasonably be expected to assume before disregarding the rules society has adopted to otherwise circumscribe the exercise of their considerable discretionary authority in carrying out their vital law enforcement duties.
37
This is a question that no amount of factfinding will answer. The inquiry requires us to ask not merely whether the trial judge was correct in finding that Olson in fact had reason to believe, for instance, that McConney was a member of the Hell’s Angels Motorcycle Club or that he had a prior felony conviction; it also requires a determination whether these facts and any other information Olson had about McConney’s past are sufficient to satisfy the legal standard for exigency. We must decide, for instance, whether a reasonable belief that a suspect is a member of the Hell’s Angels Club, without demonstration of a link to criminal activity, is relevant to the issue of exigency, cf. United States v. Rubio, 727 F.2d 786 at 793 (9th Cir.1983) (membership in Hell’s Angels without a link to actual criminal activity insufficient to support a finding of probable cause to issue a search warrant). We must also decide how much weight may be given to an officer’s knowledge that a suspect has previously been convicted of an unspecified felony.
I’m not trying to be a wiseguy here. I just really want something that makes some sense.
To be honest with you the only guy here that’s making any sense to me is DJ. I can understand he doesn’t want loved ones hurt, I can understand he doesn’t want information released that would make it possible to rule out bad confessions. Perfectly understandable concerns that deserve to be addressed in a reasonable mammer.
I’m sure that while it pains Oscar Grant’s family to see their son being shot they are greatful those people removed those videos from the scene and prevented the other BART officers from taking them. The reason they are greatful is that these videos show the truth of what happened. Not the story that BART wants to tell and control.
“VA Master Trooper” from post 151.
No one here, as I see it, has asked to be treated specially only treated respectfully and not ordered around and treated as criminals for witnessing a crime.
If wanted to be not ordered around like a dog or have your property taken from you illegally especially when you fear evidence of police wrong doing will be destroyed is wanting special treatment. If not wanting to have the police laugh and say tough is special treatment.
Then I fear for the citizens you are supposed to be protecting.
I really think you have missed the spirit of what the citizens are saying on this article.
Fortunately, with the advent of smartphones, there’s a technological fix for the two-bit thugs like officer brad; who would steal private citizens’ property to cover for the criminals like mehserle in their own ranks.
I’ve got a couple of iPhone apps I develop as a hobby already on iTunes. In the honor of the heros who escaped from the BART police and got the word out about the murder of Oscar Grant; the next one will be a photo app that immediately uploads its images to flickr/picassa and then blanks the local copy. It shouldn’t be too hard to work out a “panic button” that uploads ALL local photos and wipes those too.
Bag it, tag it, and drop it down the memory hole… fine… you sleazy POS. I’ll be out my property. But I’ll at least deny its use to the likes of you. And the truth will still get out.
Officer Brad post 161:
in this very thread you see people posting comments that they would obfuscate the evidence – so if I was making a warrant application, I could use those very comments to support my argument that I had “reasonable belief”‘ an unknown witness could destroy evidence
As one of the “y0u people” on here can you please point this out to me. I have read every post and don’t recall anyone saying that.
I also don’t see what “reasonable” person is going to destroy evidence of a police shooting.
How do you base your “reasonable belief” someone would erase pictures which can easily be recovered from a simple camera delete.
How about let them do it then you can undelete them and be able to charge them with a REAL crime.
Also about your statement that a person could destroy evidence. That is excessively vague don’t you think?
I mean anyone COULD do anything. A suspect could take off his shoes and throw them at you but really what are the chances. Are you going to take his shoes at a traffic stop because he looks at his shoes?
I also don’t understand how you could use what you read on a blog and apply it to an individual you’re dealing with on the job.
Yes, Your Honor, I need an after the fact warrant because I seized this witnesses camera because I read someone on the internet might just delete the pictures instead of handing them over. Would that actually WORK?
If so we are in more trouble that I thought.
A cop does not have the luxury of two hours to think about these things on the scene. A cop sees a possible witness getting on a subway train that might depart any second. He/she realizes the witness may have critical evidence on his cell camera so the cop has a near instantaneous choice that must be made in seconds: (1) stop the witness, seize the camera, and apply for a warrant later or (2) let the witness go and valuable evidence may be lost forever. If the cop picks choice (1) the worst that will happen is a witness will be pissed off about having the camera taken. If he/she picks choice (2) the worst that may happen is a killer could go free because of lost evidence. So it’s a no-brainer for the cop: choice (1). It’s that simple folks. Welcome to a day in the life of a cop. We have to make snap decisions like this all day long, year in, year out. Sorry if your feathers get a little ruffled in the process but them’s the breaks. It’s life or death for us sometimes. You want please and thank you, maybe you should go to Nordstroms. I’m a cop, not a concierge.
Vegas motor cop… Sorry I think your assertion that the evidence in this case might be lost is ridiculous.
We are talking about an on duty in uniform officer involved murder. That would be on the net and sent to every news agency as as soon as someone got home and you know it.
Even if this was not an officer involved murder it would still be on the net and sent to every news agency as as soon as someone got home.
However your doing what others I think said they would not and that is getting a warrant. At least there is a paper trail that might be followed when someone on the force accidentally erased the disk.
Besides you don’t NEED the camera. All you need is the memory.
But can you tell me why you need to original or why can’t you just use a copy that I am sure would be given freely, if you act like a human being and simply ask?
Yeah your much to important to remember who the hell you work for or how much of a life or death situation your in when dealing with a material witness to a crime.
After all those who see crime are still guilty of something and must be treated accordingly.
You are why this forum is here.
“You want please and thank you, maybe you should go to Nordstroms. I’m a cop, not a concierge.”
Pardon me I meant to say your attitude is why this forum is here.
i really think some of you people need to grow up
cops aren’t your mommy, they have more important things to do than coddle and pamper you
i don’t want to see my tax $$’s wasted on police indulging overgrown brats like some of you people who think you have a constitutional right to act like spoiled children and get your way all the time
go throw yourself on a supermarket floor if you want to have a temper tantrum because the world doesn’t revolve around you
stop wasting the cop’s time and act like adults
pr,
The irony of your statements. Do you know how much tax dollars have been spent in prosecuting me for doing something that is completely legal?
I don’t either but I do know it has been a complete waste of resources.
And it’s no different than the multitude of other cases I’ve written about on this site.
DJ,
Thanks for the comments, but on flicker and a few other photographers rights sites I visit there ARE reports of things like my 2nd scenario happening to photographers weekly if not more often. One of the reason posters here are saying “back up with some real concrete PROOF that under some situations police can lawfully seize property for doing nothing more then taking photos.” Too often either the posters or somebody they communicate with regularly has had LEO’s make up rules or laws on the spot in an attempt to coerce photogs to quit taking photos of things they would rather not have photoed. The people here have lost faith in the trustworthiness of the officers. Once that trust is broken by any one cop then the entire department and to some degree ALL cops suffer for it because people no longer believe anything they say is true until proved in a court to everybody’s detriment.
Vegas MC,
Why is it that just stopping a witness until contact info can be collected not enough? Do you EXPECT them to try and destroy evidence if you let them know they MIGHT be in possession of some? Why is it that you MUST have the original when a copy certified by your own people as being from an unaltered original should be just as good? When footage is obtained from major news sources is it the original and ONLY copy of that footage? If your worried about exposure of critical details to the case why is an official request to not publish details not sufficient? Do you EXPECT people to ignore your requests? if so THEN they have broken the law and at that point I believe you should be free to peruse them legally. Friends & Family, so there could be some exception they will take steps to protect the suspect, but a complete unknown to them from the street, Sorry just don’t buy it.
You say your not the concierge, but you DO work for the people in your jurisdiction and until proven otherwise they do DESERVE some respect and consideration. Or have you only been exposed to the criminals for so long you no longer know how to treat law abiding citizens as anything but criminals?
Rizz
I am getting quite an education here.
I bike into the USA yearly and visit parks and scenic locations and snap hundreds of photo’s , can you imagine the irony if I end up being confronted during one of my (very amateur) photo adventures.
I wonder if, when I provide my personal information, the fact that I am a visiting law enforcement officer would change the way in which I am treated? I know it should not and I pray that it never will be put to the test.
Feel free to visit my country and snap away like I say I have been on U Tube in the paper and on the National news and was proud of every moment.
Good luck to all of you keep safe keep calm and litigate for your rights.
>Yeah your much to important to
>remember who the hell you work for
>you DO work for the people in your jurisdiction
Let me tell you about a special free service the police department provides here in Vegas called the Roadside Civics Lesson (RCL for short). Your PD probably offers a similar service and you sound like just the right kind of guys to take advantage of this wonderful opportunity. Here’s how it works: I see a driver bang an illegal U-turn so I pull him over. He immediately goes into Pissed Off Taxpayer Mode (POTM for short) when I ask for his license and registration. He starts screaming about how I’m wasting valuable county resources stopping people for harmless things, how I work for him, how I’m his employee and my personal favorite, I’m really his servant because I’m a public servant. Now while Mr. POTM is shooting off his mouth, I’m looking for every possible thing I can cite him on in addition to the U-turn. Hopefully he has crap dangling from his rearview, a window’s cracked, his driver’s license is bent, his tires look bald, his seatbelt isn’t retracting properly. I don’t say a word while I write this all up. If I’m lucky, I can write about $500 worth of violations on the guy which will also cause his insurance to go up about $1,000. As a free bonus with his RCL, I give Mr. POTM my business card so he can waste his time filing a complaint about me, which will get exactly nowhere because I’m acting entirely within the law. If I’m super lucky, Mr. POTM will waste his time trying to fight the citations in traffic court and I’ll get overtime for the pleasure of watching him make a complete jackass of himself in front of the judge. I’m sorry to say, most drivers don’t get a chance at a free RCL. If they’re polite, I might just give them a warning that will cost them $0. Now you may be asking why we offer the RCL. That’s because drivers like Mr. POTM never learned in civics class that cops are not his employees or servants. I’m employed by Clark County. The taxpayers do not own Clark County, just like they don’t own any city or county in the USA. Taxpayers have no right to order me around or whine about how I’m performing my job because cops are not your employees. Have a nice day!
{It’s life or death for us sometimes. You want please and thank you, maybe you should go to Nordstroms. I’m a cop, not a concierge.}
And to increase your life expectancy you need the support of the good people fighting for their rights. Otherwise we’ll take our ball home with us and let you play cop all you want.
Enjoy
{I also don’t see what “reasonable” person is going to destroy evidence of a police shooting.}
Exactly. We are going to post it on the Internet and give copies to every Radio/Newspaper/TV station we can.
That’s what we’ve been talking about and these CSI cops are arguing against.
{If not wanting to have the police laugh and say tough is special treatment.
Then I fear for the citizens you are supposed to be protecting.}
I guess Alex Jones was right after all and these are the ones we’re supposed to fight again.
I didn’t realize identification of these crooked cops would be so easy…
@ Vegas : Oh my gosh.. is that what you’re taught in civics? You have State Taxes yes? Even (contested by some) Federal Taxes? That’s what pays for local Government, it’s offices, services and it’s employees, so yes, as a Clark County employee you are bought and paid for by the tax payer – it can be argued that tax payers do indeed “own” local, state and federal Gov’ as a result because they pay for it.
Being ‘beholden’ to taxpayers is a slightly different matter though
Kilroy238 wrote,
“I also don’t see what “reasonable” person is going to destroy evidence of a police shooting.
How do you base your “reasonable belief” someone would erase pictures which can easily be recovered from a simple camera delete.
How about let them do it then you can undelete them and be able to charge them with a REAL crime.”
I think the person said they would delete the video and pictures on phone once it was uploaded to Flickr not before. Therefore, no actual destruction of evidence but preservation in fact.
Also, I don’t think it would be too difficult to write as part of the PANIC app a routine that writes a “101010″ pattern repeatedly over the blank part of the media to make sure that what was there was no longer recoverable by undelete. The NSA, CIA, and Black programs now employ this method to make hard drives safe.
Vegas Motorcop wrote,
“If the cop picks choice (1) the worst that will happen is a witness will be pissed off about having the camera taken. ”
Wrong. The witness will be pissed off, because the cop destroyed the evidence of cops committing a crime.
Wow… Vegas Motorcop did you have a bad day? If not I’d definitely suggest some anger management counseling, heck even if you didn’t have a bad day I don’t think it’s a bad idea at all.
While you do have a point about the guy you pulled over going into Pissed Off Taxpayer Mode on you during at traffic stop that’s not what we are talking about here at all. It’s a shame that people just don’t get you’re doing your job when you pull them over. I’ll tell you about my last RCL.
I was on my dirt bike which is street legal, interestingly enough this RCL also started with an illegal U-Turn on a NJ State Highway. I was in a Dunken Donuts, on the East bound side of the highway, of all places after going for a ride with friends. My truck and trailer were parked in a parking lot off the East bound side that was not connected about 1000 yards to the West. This highway has a grassy median strip about 50’ wide. The next place to make a legal U-Turn was about 1000 yards to the East. So I figured I’d just go across the median. There are rolling hills on this road, as soon as I get out in the median two NJ State Police cars crest the hill of to the East going West.
I bobble a bit in the median. I Pull out into the West bound lane and pull over. I’m kind of laughing at myself for doing something really STUPID. I knew I was taking a chance when I did it, I knew I was wrong, I knew it was stupid. But NJ State Police Sergeant Trooper internalizes my laughing as my laughing at him. Now talk about someone that has very little self esteem. He takes offense to it. He jumps out of the car runs up to me and gets in my face yelling at me. I assume the neutral stand with my hands at my side. Now the other car has a brand new, still in training trooper and his trainer trooper, who has some stripes so I guess he’s a corporal. So the trainer trooper adopts the posture of the Sergeant and gets in his best total trooper business mode. The trainee looks like he smells some day-old dog crap that’s been fermenting in the sun.
Finally after a couple of minutes the Sergeant has had enough of yelling at me and leaves telling the other troopers to take care of this and the trainer say something like ‘yes sir’. On dirt bikes it’s common to bend the license plate around the mount so you don’t lose it on a tree. So I get questioned on that at length but stay in my neutral posture and say if you feel the need to write me a ticket for that no problem. My bike gets another look over and they don’t find anything else. I was expecting like 10 tickets for the assumption that I was laughing at them for pulling me over.
They come out and the training trooper hands me two tickets, the RCL at work. Obstructed license plate and something for crossing the median. They get back in the car. The training trooper handed me the tickets but I’m not sure which one of them signed them. So I go back to the car and they roll down the window and I say something like, I was just wondering who signed the tickets. The trainee trooper says I did, I say thanks but the training trooper gets all annoyed. Do you want a compliment complaint form? I say no, but he’s insisting on giving me one. He gets out of the car, and goes in his case to get one. I’m saying I don’t really want one, just wanted to know who signed the summons and I know but if you insist I get one I’ll let you give it to me. So now they both get out of the car again. Get in my face; violate the distance between me and them. I used to sell stuff so I know about staying put and letting others adjust the distance between you. Then it finally comes out of the training trooper mouth that they think I was laughing at them and the Sergeant. So I now ignore the training trooper and turn to the trainee and say. Sometimes when people are embarrassed by something stupid they did they laugh at themselves. It’s got nothing to do with you. I go to the parking lot and can see them from there. They spend like 25 minutes there writing or something. I get my clothes changed, I get my bike on the trailer and secured and they are still stopped there.
So now I really am Mr. POTM. I go home and file a request to get the video from the trooper mobiles. After all it’s got the video and audio of everything that happened. I don’t bother with the compliment complaint form. So they, someone that wasn’t at the scene, call up trying to get me to not want to get the video. I insist that I want it and I do get it for $25. I think they have some kind of rule that if they send out the video it has to be reviewed by someone and they don’t want that person seeing the video because they do look like total jerks.
Now I go to court. The video isn’t going to help me in court because it shows the bent license plate and that I went across the median so I don’t even bother to bring it. I get there early so I’m the first one. A friend of mine used to be a prosecutor in the municipal court. He had a rule that the first person to court got off if it was only traffic tickets and I think maybe this guy has that rule also. So I get my chance to talk to the prosecutor and they have changed some of the rules in traffic court and I know this. So he says well the bent license plate is dismissed. We can take the crossing the median point violation and change that to this which doesn’t have any points and a low fine. I’ll ask the judge for no costs. I say that’s fine, if I have to pay costs it is ok.
Now I decided here is my chance to give the troopers a good job recommendation. I say to the prosecutor the trainee was really nice, very respectful, I think he’s going to be a great addition to the state police force. There was some Sergeant there, I think his name started with an M, the prosecutor says I know who you mean his name starts with an N. I say yeah that’s right. I’m glad I wasn’t black, I think if I was black he would have shot me. The prosecutor says yeah he’s a bit of a loose cannon. I say the training officer was kind of annoying but nothing like the Sergeant. Just how long do you think it took those statements to get back to the Captain?
That’s how Mr. POTM gets very even with Police Officers. The offhand comment in the right place that can mean the difference between getting a promotion and not getting one.
Have you ever heard of follow the money? So let’s see. You work for the Clark County which pays your salary from the account used to do that. The money gets into that county account from the general fund. The citizens vote to elect the freeholders of Clark County that employee the Tax Assessor and Tax Collector who assign and collect the taxes. The money from the taxes that are collected gets deposited into the general fund. So the taxpayers actually pay your salary. You work for the taxpayers.
Vegas Motorcop wrote,
“If I’m lucky, I can write about $500 worth of violations on the guy which will also cause his insurance to go up about $1,000. As a free bonus with his RCL, I give Mr. POTM my business card so he can waste his time filing a complaint about me, which will get exactly nowhere because I’m acting entirely within the law. ”
Funny, I had some douchebag cop try that pathetic POS on me. I sent the tickets to my traffic attorney, and got them all thrown out and I never stepped foot inside the courthouse. The douchebag cop did though, and wasted alot of his time. Oh, and I never got any points on my driver’s license either.
People that feel a cop is harrassing them should file a complaint with the cop’s supervisor. It won’t immediately do anything, however, if the cop gets enough complaints it will raise a red flag with internal affairs.
We have gotten off the topic.
Lets refocus and get back on point. Just what allows a peace officer to seize something from a person that hasn’t committed any crimes. A person where no one would suspect that they did commit a crime. A person where as far as everyone was concerned is positive they did not commit a crime.
So far all I have gotten from this discussion is that none of the photographers believe they should be able to and some have cited certain materials. All I have gotten from the peace officers with the execption of DJ is that they have the shields, the guns and the handcuffs so they are going to get what they want one way or another.
That’s what we are supposed to be discussing here. Yes we all have are stories about RCL and POTM. But lets save them for someplace else. I also admit I did stray from the topic.
-duane
{People that feel a cop is harrassing them should file a complaint with the cop’s supervisor. It won’t immediately do anything, however, if the cop gets enough complaints it will raise a red flag with internal affairs.}
Dude don’t mention IA. If anything our CSI cops don’t want facts getting in the way of their work
There is no question that police do not have the right to confiscate your camera without a court order.
I’ve seen it happen with the media many times. And we’ve seen Brian Bates’ example that I posted above on this thread.
The media does not have any more legal rights than Joe Blow citizen, so if it can refuse to hand over a camera, then we all can.
But the media has more money and legal clout than your individual citizen with a camera.
So it boils down to the intimidation factor. If you are a reporter for a newspaper or a TV station and you get arrested for refusing to hand over your camera, it will not only get instantly reported on the internet, it will most likely lead to a lawsuit against the police department.
Smart cops will know to tread carefully in these instances.
But if you’re just a regular Joe Blow, or even an independent journalist like me, the cops believe they don’t have to tread carefully.
They believe they can simply intimidate someone from handing over their camera.
This is the reason why I got arrested. I’ve covered the police department for several large newspapers and never got arrested because they knew better. But when they saw me as a freelancer, they didn’t care.
I’m sure they didn’t foresee that I would put up such a fight either.
So even a cop doesn’t have a “legal” right to take your camera, he will.
Most people who find themselves under the threat of arrest will abide by the officer’s orders, even if they know it is wrong. So they will hand over their camera.
And those who don’t will go to jail and still be forced to hand over their camera.
And even if they want to legally challenge this, the odds are stacked against them because your average law-abiding citizen doesn’t have an attorney on call.
And in this system, if you don’t have legal clout or money, you are guilty until proven innocent.
Since starting this blog, I’ve had many people tell me to just do what the cops say and then file a complaint the following day. These people are very naive.
When you have cops investigating cops, you will never have a fair investigation.
So the bottom line is, cops don’t have a legal authority to take your camera.
But they will.
So it’s really up to the citizens to determine how much they cherish their legal rights. And just how much they are willing to sacrifice for these rights.
Vagas,
“… government of the people, by the people, for the people,”
As an agent of that government you do indeed work for the community of people conveniently identified on the map as “Clark County”. Answerable on your conduct through your chain of command to the Sheriff (or Chief of Police) answerable to the city or county government answerable to the voters. (I guess you missed that day in civics)
But you work for the WHOLE community not any single individual of that community. As such in your chosen example you were serving the community as a whole by pulling over Mr. POTM who was engaged in unlawful behavior, namely traveling at speeds in excess of the posted speed limit, an activity deemed harmful to the community.
But this has nothing to do with posting as I dont believe and of us here have any question as to the legality of speeding. Our issue here is what limits on the authority are placed on those employed to serve and protect our communities from unlawful behavior when dealing with members of that community who have NOT broken any laws (other then the law against pissing you off). And besides even criminals have rights too, they just choose to forfeit some of them by engaging in unlawful activities.
Do you believe that you can issue an order and an activity that is in every other way legal suddenly becomes illegal? If so what are some of the limits of that power, and there had better be some. We can not and WILL NOT live in a state whereby anything can become illegal just on the say so of someone with a badge. Such power MUST be limited and its use controlled, we want to know those limits and controls exist and “Take it up with a Judge” does not cut it.
DJ,
Follow the link on Carlos’ blog roll to “War on Photography”, it will give you a good idea on the hassle that photogs are having for engaging in otherwise legal activities. Yes the stories are very one sided, but the fact that they are being hassled for doing something legal should say something.
{So it’s really up to the citizens to determine how much they cherish their legal rights. And just how much they are willing to sacrifice for these rights.}
I agree. Something I strongly recommend doing (besides filing the legal complaints) is to contact everyone in the media you can should they steal your camera and destroy evidence. Make sure it’s all over the internet including youtube. Talk to everyone in the media.
I was told this wouldn’t work for a situation I fell into with Comcast. But I tried it anyway. And after speaking to consumerist.com I learned how it works. They have great info how to fight back against this sort of crap.
I started my own blog and put every detail I could remember. Then I asked for witnesses to put their details. We included scanned documents and started a paper trail and started talking to our local and federal politicians. And finding other’s who had similar experiences. That was in 2007.
Did it work?
You betcha.
My fight wasn’t with bad cops but against Comcast. Some here may have heard of it. From issues with Comcast terminating internet access for violating an undisclosed bandwidth limit to network neutrality issues with P2P and so on.
What was the media response?
Shear outrage!
Over 50 newspaper interviews, two T.V. interviews and dozens more in magazines both in America and in Europe.
Today Comcast is making changes and yet has much more work to go.
I’m not trying to troll and spread the word about this. I’m trying to show a real life example of what can also be done when cops break the law. Just make sure you are ready to deal with the negative consequences.
Some people will think you were doing something nefarious or breaking the law. That’s why you were arrested right? Ad hominum attacks and so on will arise. But if you are an open book and do everything you can to get the word out you can be successful.
If a crappy company like Comcast can be made to heel then anything is possible.
“If a crappy company like Comcast can be made to heel then anything is possible.”
Perhaps for a 100% money driven company. However, cops are generally too dumb and arrogant to be persuaded by this technique. Remember, in most cases they only need a high diploma and some minimal police academy training to be a cop, so you can’t expect for them to act intelligently. They think that they are at the same level of intellect as an attorney or a judge and can interpret the law, but they can’t.
u235sentinel // Feb 4, 2009 at 6:59 PM
{I also don’t see what “reasonable” person is going to destroy evidence of a police shooting.}
Exactly. We are going to post it on the Internet and give copies to every Radio/Newspaper/TV station we can.
That’s what we’ve been talking about and these CSI cops are arguing against.
Yeah I am well aware of that but the guy I am talking to is a NEW CSI cop who obviously who has not bothered to read anything here. I am just trying to get him up to speed on why he is an idiot. It won’t help though his kind never listen.
You people can keep validating each other in your little echo chamber here but you’re only continuing to fool yourselves. Police officers regularly seize cell cameras from witnesses. I’ve done it a bunch of times, seizing cell cameras from passengers or family members filming the arrest of somebody they know. Those seizures were always upheld with a later warrant. The seized pictures helped the prosecution more often then not. When a police officer seizes evidence or gives you an order he does not have to give you a statutory or common law citation for why he made that order. If you fail to obey the officer you risk arrest. The burden of proof is on you to show that the officer knew the order was unlawful or you will be convicted. Because police officers can lawfully seize evidence without a warrant, you will fail to meet that burden.
The deck is stacked against you in the field. The police officer has the power to arrest you, you do not have that power. The worst that can happen to the police officer seizing the cell camera is the seizure will be thrown out by the court. The worst that can happen to you if you refuse to follow the police officer’s order and surrender your camera is that you will be arrested and convicted of a crime. If you want to take that risk, we are ready and willing to arrest you. It’s your choice.
VA Master Trooper:
To keep you from destroying the evidence of a murder one of your own committed I would gladly go to jail.
It is worth it to make sure he pays the price since you seem to think it is ok to murder civilians.
{The worst that can happen to you if you refuse to follow the police officer’s order and surrender your camera is that you will be arrested and convicted of a crime. If you want to take that risk, we are ready and willing to arrest you. It’s your choice.}
And that cavalier attitude is why the police are having a tough time solving crimes. You are NOT here when it happens. We are. You want our help? Don’t act in a shameless manner. And yes, your words are exactly the manner which turns normal people off.
Speaking of which, there is a new investigation into the 1982 Tylenol poisoning. Seems police are asking for the public’s help. Wow.. really? I guess you guys need to at least act like a human to get that kind of cooperation. I wish them luck. Hopefully they won’t have your piss poor attitude.
Before you get all pumped on on male hormones, I’ve helped cops in the past. One instance I witnessed a guy beat up in the middle of a main road. The perp fled on a motorcycle and I followed at a distance. I found his address and came back to the scene. Seems cops had arrived while I chased this guy down.
I walked up to one and said “interested in the guy who did it?” The look of shock on his face said it all.
They eventually called me as a witness and the defense was a big ass in his examination of me. Looking for ways to ‘claim’ I didn’t know what the guy looked like because he wore a helmet. I said I didn’t need to see his face, I had his address and his license plate plus he was always in my view.
The cops went to the guys house just minutes after I passed along the information and arrested him.
Would this have happened if the cops in my town acted like you? Hell no. I’d run like hell. You sir are a disgrace. I would never help you. Go do you own damn work and leave good people alone.
Why do I say all this? Because I had to break the law to keep this guy in my field of vision. While I was far behind him, I had to drive at double the marked speed limit otherwise I would have lots him.
Am I a criminal?
According to you, I shouldn’t tried to keep up because that’s wrong and you’re a bad ass CSI Miami cop.
Time to re-read the 4th Amendment bud.
Let me preface this by saying that I’m an 18-year-old American, so make of that what you will.
Recently, I’ve stumbled across a lot of “police brutality” type reports and I’ve encountered a LOT of anti-police attitudes from people my age.
Personally, I feel that the cops aren’t trying to help us. At all.
While they are “doing their job,” I find that they’re also not. They’re fulfilling personal agendas, such as beating the hell out of someone who is “resisting arrest” or shooting someone in the back because “they’re a criminal.” That’s just overzealous. Or how about, as one of the motorcops said, writing up someone for as many things they can possibly find wrong at the time…simply because the offender “pissed you off,” …that’s just unprofessional and plainly antagonistic.
In fact, I agree with the “becoming the law” illusion.
Reports like these make me wary of the police force and ashamed of how they’re trying to desperately cover-up for their fellow officers. That is a crime! As officers of the law, if you do something wrong…you should take complete responsibility for your actions! Because:
1.) YOU ARE A ROLE MODEL. Believe it. Whether positive or negative, however…that’s up to you.
2.) YOU [should] UPHOLD LAW. Regardless of who is involved.
It is completely ridiculous [and helplessly human] for such abominations of the law to happen.
When you hate/fear your government, when you have a lack of respect for authority, especially authority that is supposed to be on your side!!!…something is very wrong.
I would have to say this is probably the prevailing attitude [especially in young Americans] today.
I would also have to say that I am very disappointed.
{I’ve done it a bunch of times, seizing cell cameras from passengers or family members filming the arrest of somebody they know. Those seizures were always upheld with a later warrant.}
So you admit you aided a police officer commit a criminal act. Fine by me. Another reason I moved to Utah and carry. Thanks for validating my concerns and decision to take all necessary measures to protect myself, my family and my neighborhood against threats.
{The deck is stacked against you in the field. The police officer has the power to arrest you, you do not have that power.}
Nope… I have the second and fourth amendment. Thanks for playing.
And it’s been recently upheld by the US Supreme Court. You might want to read up on it if your a little rusty.
http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution
{ If you want to take that risk, we are ready and willing to arrest you. It’s your choice.}
200 years ago a bunch of people were willing to die for their country. You might think those people don’t exist anymore but you are mistaken.
50 years ago a black lady decided to keep her seat on a bus and sparked a movement. You might think those people don’t exist anymore but you are still mistaken.
http://news.bbc.co.uk/onthisday/hi/dates/stories/december/1/newsid_4398000/4398912.stm
And 40 years ago the US Supreme Court said
“Police CANNOT conduct frisks for the purpose of discovering evidence other than weapons. The Supreme Court has ruled that suspicious items other than weapons retain their Fourth Amendment protection during a frisk. This means that if a police officer claims that objects in your pocket feel like drugs, the objects cannot be further investigated without your consent. ”
http://www.flexyourrights.org/fourth_amendment_supreme_court_cases
Also you have the following to learn about citizens rights:
In the context of investigatory stops and detentions, here are a few important principles that should be remembered:
Investigatory stops and detentions:
1. Police may stop you for any reason, but are not entitled to any information other than your identification
2. Police may not detain you without reasonable suspicion
3. Police may not search you without either probable cause or your consent. Don’t consent to warrantless searches!
4. Police will often try to trick you into thinking you can’t leave. Ask if you are free to go.
And about Consent Searches
1. According to the Fourth Amendment, you cannot be searched without a warrant or probable cause, unless you consent. Don’t consent to warrantless searches.
2. The officer cannot “make things easier” for you if you consent. Consenting makes it easier for the officer to arrest you
3. If you consent to a search, any evidence found can be used against you in court.
4. If you don’t consent to a search and the officer searches you anyway, your lawyer can get the evidence thrown out in court.
5. You cannot get in trouble or become a criminal suspect for refusing to be searched.
6. The officer cannot detain you unless he has reasonable suspicion to believe you are involved in something illegal.
Now quit trolling Mr. CSI Fake Cop or we’ll get smarter and that’s something you really don’t want to have happen.
FYI… I’ve passed this link on to Alex Jones in case he’s interested in following this story further. I don’t know if he’ll pay attention to this or not BUT this is exactly the kind of crap he loves to report on.
So keep talking dude. You only reinforce us and weaken yourself.
Some precedent we commonly use in pleadings when backing up cops who make lawful seizures of cellphones from witnesses without a warrant:
United States v. Alfonso, 759 F.2nd 728
United States v. Reed, 935 F.2nd 641
United States v. David, 756 F. Supp. 1385
United States v. Romero-Garcia, 991 F. Supp. 1223
United States v. Ortiz, 84 F. 3rd 977
All cases where courts upheld exigent seizures of personal electronics by cops without warrants.
Happy reading!
@Prosecutor Lisa
Thanks for the reading. Did you post these to waste our time or some other bizarre reason?
{United States v. Alfonso, 759 F.2nd 728}
What does our conversation have to do with the US Coast Guard and Cocaine seizure? The only entry in the record of a telephone was when
“the Los Angeles Police Department received a telephone call from the manager of the Surf Motel stating that someone wearing a wetsuit had come to the motel and requested another key to room 3″
Care to cite where a seizure of a cell phone happened? I must have missed it.
In United States v. Reed, 935 F.2nd 641 the report says
“Viewing the situation in its totality, the troopers could have reasonably found exigent circumstances justifying seizure of the sawed-off shotgun.”
He was charged for unlawful manufacture and possession of an illegal weapon.
You won’t have any argument from people here on that one either. So a cell phone is the same as a shotgun? You must have grown up in a tough neighborhood. I grew up in Alameda County so I’m pretty sure it couldn’t have been much tougher IMO.
United States v. David, 756 F. Supp. 1385
I stopped here figuring you are not legitimate. This one was a good read and I highly recommend everyone check it out. Thanks for bringing it to our attention.
http://209.85.173.132/search?q=cache:AF8Io1Wi9TgJ:www.law.gmu.edu/assets/files/academics/schedule/2003/spring/Kiefer_CyberSyl.pdf+%22United+States+v.+David,+756+F.Supp.+1385%22&hl=en&ct=clnk&cd=1&gl=us
What does the seizure of computer hard drives and equipment have to do with this discussion???
Don’t waste our time unless you have real facts you can substantiate. Thanks
I’ll pick it up where you left off since I started at the bottom of the list.
I do however reach the same conclusions; Did you post these to waste our time or some other bizarre reason? Don’t waste our time unless you have real facts you can substantiate
United States v. Romero-Garcia, 991 F. Supp. 1223
“In United States v. Romero-Garcia, 991 F. Supp. 1223 (D. Or. 1997), the district court upheld the immediate, warrantless search of a pager, citing the same reasons as those stated in Ortiz but upholding the search on the ground that the circumstances created an exigency excusing the requirement for a search warrant. There is no material difference between the information retrieved from a pager and the information retrieved from the cell phones in this case, and the court finds the reasoning of the Seventh Circuit and the Oregon District Court persuasive.” The Georgia court, citing cases from other jurisdictions, upheld the search of the cellular phones as both incident to arrest as well as based on probable cause and exigent circumstances.
The search of cellular telephones as an incident to arrest search is a growing body of law. While many of the courts seem willing to accept these searches as incident to arrest or based on exigent circumstances, some do not. This is an area of the law which we must continue to watch and to test. It may be wise to consult local prosecutors on this issue, especially in cases where the search or resulting evidence is necessary for a prosecution.”
Ok so someone is getting arrested you can search the cell phone and pager. We never said you couldn’t. What does this have to do with witnesses?
United States v. Ortiz, 84 F. 3rd 977
“Manuel Hurtado and Julio Ortiz were arrested on September 7, 1991, in connection with a distribution of heroin charge. Ortiz, however, was released by the arresting officers shortly after being stopped. Hurtado was less fortunate; he was taken into custody
Three days after the arrest, on September 10, 1991, Ortiz and Hurtado were charged in an indictment alleging conspiracy to possess heroin with intent to distribute and the actual distribution of 5 ounces of heroin. An arrest warrant was issued for Ortiz, but Hurtado, who was still in custody, immediately faced the music. A few months later, Hurtado pled guilty to the conspiracy charge. He was sentenced to serve a term of 62 months”
http://cases.justia.com/us-court-of-appeals/F3/84/977/568395/ for the full opinion. Was Ortiz or Hurtado the witness? I must be missing something that requires a law degree to understand how someone under arrest is the witness that is known to not have committed any crimes. I see how exigent seizure plays here.
All cases where courts upheld exigent seizures of personal electronics by cops without warrants.
Happy reading!
Well they do seem to have something about exigent seizures of personal electronics by cops without warrants. But have absolutely nothing to do with seizures by cops of personal electronics by cops without warrants form WITNESSES. All these have to do with people that are actually under arrest.
I think Prosecutor Lisa failed out of Law School before she was even admitted. Also if you notice this is the first time I’ve adopted the use of the work “cop(s)”. The reason I did this was because Prosecutor Lisa did so. While some officers like the term others find it disrespectful. Which is why I try to use trooper, officer, peace officer, police officer all the time and not “cops”.
United States v. Romero-Garcia, 991 F. Supp. 1223 was a search incident to an arrest of a suspect, not a witness. At least that’s how I read it.
Also at a website frequented by law enforcement officers http://www.policelink.com/training/articles/4921-cellular-phonesdigital-devices-and-search-incident-to-arrest I found the following commentary on that particular issue:
“Two questions are frequently asked: May an officer search the digital information stored in the cellular telephone without a warrant, incident to the subject’s arrest? And, can that search take place at a later time as long as the subject and the phone are still in law enforcement’s custody? The answer to these two questions is much like the value of real estate…location, location, location. A review of cases involving this issue shows a trend toward allowing such searches but some courts flat out refusing to allow them. The United States Supreme Court has not yet considered this issue.”
That commentary, based on United States v. Romero-Garcia, concerns suspects not witnesses.
So even though I understand exigent circumstances, I’m not really understanding the zeal to seize property from a witness.
I also sense there is a deeper issue that some in the LEO community are not grasping.
At least that is how I see it.
Duane you beat me to it on United States v. Romero-Garcia.
I’m slow and tired.
Mr. Sentinel, do yourself a favor and learn a little about stare decisis before you make even more of a fool of yourself. You’re not a lawyer, you don’t understand stare decisis, so that’s how come you’re clueless about why these cases matter in any Fourth Amendment discussion.
Fortunately, the judges who I appear before understand stare decisis, as will any cop or lawyer reading the cites I’ve provided.
“I must be missing something that requires a law degree”
You are. You don’t have a law degree. I have a summa cum laude juris doctorate from Georgetown University.
Prosecutor Lisa,
I guess I should contact you next time I write an article on Constitutional rights to give the other side’s opinion.
“So even though I understand exigent circumstances, I’m not really understanding the zeal to seize property from a witness.”
Trial judges are generally making no distinction between defendant seizures and third-party (witness) seizures when it comes to cellphone cameras. In fact, some judges I encounter are more generous with third-party seizures because they know there’s no standing for the defendant to challenge.
Appellate review on this issue is close to nonexistent although there is a case directly on point moving in the 9th Circuit. In five years, the caselaw could be entirely different. As it stands now, judges are backing cops on third-party seizures. I’m thankful for that. Defense attorneys are not.
Hi Lisa,
With all due respect, even all the judges that sit on the Supreme court have law degrees and they don’t always agree with each other. In fact they often have strong differing opinions as we all know.
Then we can look at all the other judges in the country who will argue all day long about who is right and who is not.
That doesn’t even take into account all the other lawyers who don’t see eye to eye.
The bigger issue, in my opinion, is the hard nosed approach by some in law enforcement towards honest law abiding citizens.
Here is a picture of that attitude.
http://writechic.files.wordpress.com/2007/11/kern.jpg
Karl,
That is an interesting article you posted in comment 201.
If the courts can’t even decide whether or not police can search your cell phone after they arrest you, I really don’t see how they can confiscate your cell phone (or camera) when there is no probable cause to arrest you.
“With all due respect, even all the judges that sit on the Supreme court have law degrees and they don’t always agree with each other.”
Absolutely. This is an extremely fluid area of the law right now. Today, cops are favored in these kinds of seizures. Next year, the opposite may be true. Look how Heller has completely juiced Second Amendment law.
The witness cellphone seizure situation also provides a shining example of an extremely weird Catch-22 that sometimes is found in our legal system. Your legal rights are actually considerably stronger if you don’t resist the cop’s seizure of your cellphone.
Why? Because if you allow the cop to seize, he can’t arrest you. He has to get a warrant to see that phone after seizing it. He may not be able to get the warrant. But if you resist the cop, he can arrest you then seize the phone without ever getting a warrant.
By resisting you help him. It’s weird I know.
If you can stomach the heavy legalese, I recommend reading “The iPhone Meets the Fourth Amendment” by Adam Gershowitz .
“the hard nosed approach by some in law enforcement towards honest law abiding citizens.”
There are nasties in every profession. I know a whole lot of cops. Some are complete bungholes. Most are nice.
“I really don’t see how they can confiscate your cell phone (or camera) when there is no probable cause to arrest you.”
The controlling issue is the exigency, not the arrest. That’s the distinction. It can be an either/or situation. Romero-Garcia gets into that.
“There are nasties in every profession. I know a whole lot of cops. Some are complete bungholes. Most are nice.”
Yes Lisa, they exist in every profession. But the “bungholes” in law enforcement carry guns, can arrest people, and do much harm.
I know a whole lot of cops also and have worked and trained with many. Some are good folks but far too many of the “good” cops turn a blind eye to the actions of the “bungholes.”
When that happens, and it does happen, citizens don’t have a chance.
Hence, I believe, the adamant sentiments towards seizure of recording devices from witnesses.
Can we adjourn for the night? It’s past my bedtime.
@Lisa… Your comments are ad hominem. I have called you on the carpet and the cases you cited are without merit.
Do you have anything better than attacking one who proved you are bullshit?
And we’re talking here about cops breaking the law as in the BART murder by the man in blue.
Just in case you were confused on the topic.
@carl.. don’t try to make sense of the statements Lisa made. I suspect it’s just CSI Joe Cop here with a new alias from the comments.
@Duane {I think Prosecutor Lisa failed out of Law School before she was even admitted.}
Makes one wonder.
I appreciate the opportunity to learn. That’s why I joined in on the conversation AND searched for the records since they are public and easily available (google anyone?).
The items cited are related to other issues and after searching the documents for words such as “cell” “phone” “seizure” “camera” to name a few I found nothing indicating a cell phone was even involved in the case OR stipulated in the facts on the records I checked.
After tomorrow I’m blocking this conversation from my email. It’s been educational and entertaining. I love learning. No I’m not a lawyer. I don’t believe I ever claimed to be one. But I’ve learned what I needed and appreciate everyone (even you Lisa) for providing what I needed.
I am however a Sr. Information Security Analyst working in Forensic Analysis and work with law enforcement including the FBI and the police. So I do have some idea how things work.
There is a chain of custody but if I started pulling down things that have nothing to do with my work people will start asking the same questions we see here.
That’s what we are talking about. A camera which captures someone (a cop) committing a crime (as in the BART Murder).
The camera is my tool to capture the bad guy. It would be a damn shame if someone took my camera and it was broken after I compiled my evidence. I would be unable to prove anything.
Let the demonization begin. I guess that’s all the opposition here has . Cite accurate evidence because anything else means nothing.
I simply don’t care.
One final note then I’m off for tonight
Stare decisis is the legal principle under which judges are obligated to follow the precedents established in prior decisions.
Great. Still doesn’t explain why those cases I researched have anything to do with a cell phone or camera.
You probably should explain it to us plain folk. It’s hard to understand since we’re soo stupid.
“The items cited are related to other issues”
You could not be more wrong. This is why you fell down the rabbit hole.
They are related and critically important. This is precisely why you’re confused. You’re blaming the messenger because you don’t understand the message.
These are all Fourth Amendment cases dealing with exigent seizure exceptions. Because you don’t understand stare decisis, you’re missing the forest for the trees.
When these matters are argued before a court, we argue stare decisis. If you don’t understand stare decisis, nothing else will make much sense to you about the law.
“No I’m not a lawyer.”
Yes, it’s obvious. But if you want to argue complex legal concepts, you need to understand stare decisis.
You’re trying to make a complex point about stare decisis without even understanding the fundamental basics of stare decisis.
@Lisa. Thank you for beginning a conversation. Now would you mind educating us
{Yes, it’s obvious. But if you want to argue complex legal concepts, you need to understand stare decisis.
You’re trying to make a complex point about stare decisis without even understanding the fundamental basics of stare decisis.}
I’ve read about it and the items you cited all deal not with WITNESSES but with those who actually committed the crime. My reading of your support material suggests it was dealing with the accused not those watching the crime.
I look forward to understanding this nuance.
Thanks
(Ok I lied.. I have some late work I’m attending to but I really need to get some shuteye ::grinz::)
“Stare decisis is the legal principle under which judges are obligated to follow the precedents established in prior decisions.”
Thank you Jesus! He’s starting to see the light!
“Still doesn’t explain why those cases I researched have anything to do with a cell phone or camera.”
The critical importance is this: in Fourth Amendment law, it matters not so much **what** is seized but **how** it is seized and **why**.
You’re worrying entirely about **what** was seized when Fourth Amendment law worries primarily about **how** and **why**.
Because the Fourth Amendment does not mention the word “cellphone”or “camera,” the precedent judges must follow in these matters is the body of Fourth Amendment law, which is elucidated in the cases I cited. They are the highest authorities at present.
“I’ve read about it and the items you cited all deal not with WITNESSES but with those who actually committed the crime.”
You’re getting tripped up in the witness/suspect distinction. That’s irrelevant in exigent seizure cases.
The **who** does not matter in exigency cases. The **why** is critical.
What matters is the urgency, the exigency, the extreme haste necessary in the seizure.
If the prosecution cannot establish urgency, the warrant will fail.
I am an attorney. I see exactly why some non-lawyers here are perplexed. If you are a witness and your camera is seized, you have a 5th Amendment claim, not a 4th Amendment claim. The police may seize personal property like cameras without a warrant from witnesses in certain situations. If this happens, your remedy is founded in the 5th Amendment, specifically in the Takings Clause. That is a civil matter, not a criminal matter.