By Carlos Miller
One of the most popular articles I’ve written on this blog was headlined “Do police have the right to confiscate your camera?” where I interviewed two lawyers who said that the only way police can legally confiscate your camera is with a court order unless the camera was used in the commission of a crime.
Naturally, the article prompted at least two police officers to comment that they are entitled to seize anybody’s camera without a court order at any time with the justification that it is considered evidence.
Now a Canadian police officer has written a post on his own blog titled “Can police seize your camera?”.
Mack Pettigrew, a sergeant with the Ontario Provincial Police Department who runs the blog “A Cop’s View”, comes across as a cop who would rather cooperate with a witness rather than intimidate him.
While he does believe that an officer is entitled to seize a camera without a court order if there is a chance he will never see that person again – such as if the person takes off running down the street – he believes it is preferable to obtain a search warrant in cases where the photographer provides his name and address.
I’ve always said that if I’m in a situation where a cop is ordering me to hand over my camera or memory card, I will refuse, but I will gladly provide him with my identification which would allow him to obtain the camera through a court order.
In fact, I would probably allow the officers to copy the memory card with the understanding that I maintain possession of it and will most likely publish the contents on my website.
Unfortunately, many cops would not agree to this and would just arrest me and take my camera anyway, forcing me to go through the whole legal process again, which is a risk I’m willing to take to protect my personal property.
It’s too bad more cops can’t be like Pettigrew, who states the following on his blog:
Officers must be sure of their powers, you can not just go and take a camera from someone because they are going to put the video on youtube or sell it to the media.
I was listening to the so called experts on the radio show and found it interesting how they talked about how officers are uncomfortable with the knowledge that their actions are being video taped or pictures taken of them. I for one have no problem with this as it works both ways. We use video tape evidence all the time and as long as you doing your job professionally out on the streets then officers have nothing to fear. Unfortunately we are human and have lapses in judgement at times and these seem to get caught on video and plastered all over the internet and media. One bad action can paint a bad picture for all of us. So be aware be professional and as a police officer know your powers when it comes to photos and video.
Popularity: 2% [?]
Fernandez, as I mentioned in a 
24 responses so far ↓
1 KC // Apr 9, 2009 at 5:19 PM
Its is somewhat comforting to know that there are rational, law abiding police officers out there who are proud to stand up and be counted amongst the sane. Now if we could only oust the corrupt, abusive ones who ignore the letter of the law and make it up as they go along…
2 Duane Kerzic // Apr 9, 2009 at 6:45 PM
Mack Pettigrew my hat is off to you. What a wonderful write up.
I’m in Carlos’ camp. You want my name and address, here is my business card. You want a copy of my photos, ok. But don’t try to take them from me without a warrant of some type. Don’t try to make some pretext to arrest me. I’ll let you arrest me but I’ll complain to anyone and everyone.
3 diomedesxx // Apr 9, 2009 at 7:09 PM
Good to hear such a thing. Whats disheartening is that we are surprised. Police should act with enough ethics that we shouldn’t fear our liberty, property or safety in their presence, but sadly we are on Earth.
4 Marco Perez // Apr 9, 2009 at 8:42 PM
Can evidence be seized without a warrant?
IV Amend: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The way this is worded seems like a warrant is necessary to seize, ‘and’ being the operative word hinging the two parts together. I guess ‘unreasonable’ can be loosely understood; like a cop taking you camera because it is not ‘unreasonable’. But it probably means without reasonable cause, in which case a warrant should be sought. Carlos help me out, this is all madness to me.
there is a BIG gray area if cops can seize evidence without a warrant from someone that was not involved the committing of a crime. I would think this would be abused.
What constitutional differences are there between Canada and the USA regarding this topic?
5 Carlos Miller // Apr 9, 2009 at 8:59 PM
Not sure about the Constitutional differences between the US and Canada, but the laws regarding photography appear to the be the same judging by the last few articles I’ve written about Canada.
Legally speaking, a cop needs a court order to take your camera if it was not involved in the commission of a crime.
Realistically speaking, cops do whatever they want.
And you might be able to win a lawsuit against them but that takes time and money and there are no guarantees.
6 BW // Apr 9, 2009 at 10:32 PM
Legally speaking, a cop needs a court order to take your camera if it was not involved in the commission of a crime.
As the police officers and lawyers explained in the extremely lengthy comments to your 1/21/09 article, there are exceptions where seizures without a court order are permissible, notably in exigent circumstances. Mack Pettigrew’s piece affirms a similar standard in Canada: “If the person refuses and does not give their name and starts taking off down the street then it is thought that this is evidence and can be legally taken before a judge with the explanation that there was no time to get a search warrant.”
7 freelance freebird // Apr 9, 2009 at 10:34 PM
Well said Carlos – but… if we do nothing now, it only gets more abusive. If everyone who has been harassed over photography would file a claim and follow through – no out of court, non disclosure agreements, admit no fault BS- make them face a court both professionally and privately. Even if a small percentage works out as wins, it could serve as a possible deterrent for LE.
The Ibara brothers in Houston is one example of them exposing more than Harris County wished the public to know. Discovery in a civil case has wide bounds – their case managed to uncover the DA’s affair with a staff member through request for emails by Ibarra’s legal council.
The risk of opening up a bigger can of worms lurks around every corner when dealing with public agencies and officials. When you have carte blanche access to their public and private life a lot of embarrassing things can come out and usually does. When you see an out of court “agreement” in cases of misconduct – they are often large and made to discourage a plaintiff to continue his claim because they have much to hide, sometimes they manage to serve up enough green to make the problem go away. They start sweating when they run across someone not willing to play ball with them
8 the bulldog // Apr 9, 2009 at 11:12 PM
finally, a cop that doesnt suffer from microphallus!
9 Duane Kerzic // Apr 9, 2009 at 11:23 PM
Freelance,
I don’t know how much experience you have in the legal world. The United States court system favors settlements in all cases, criminal and civil.
A trail results in one big winner and one big loser. They cost lots of money for both sides and for the people of the USA. Trials take years to come to a conclusion. They tend to have appeals. Settlements on the other hand are fast. They are final. You get something you give up something. The mark of a good settlement is when both sides are unhappy with the result.
Ultimately what is a plaintiff to do. Spend $100,000 on lawyers to collect $2,000 in damages thus losing $98,000 in the process?
Get back to me when you are personally in the situation.
10 Eric Ogunbase // Apr 9, 2009 at 11:48 PM
Police Officer: “If you aren’t doing anything wrong, you won’t mind me searching your vehicle”.
Citizen: “If you aren’t doing anything wrong, you won’t mind me videotaping you”.
11 Lefty // Apr 10, 2009 at 6:13 AM
Duane, are you some kind of gate-keeper? Freelance made some good points.
Eric, that is classic!
12 Duane Kerzic // Apr 10, 2009 at 2:50 PM
Lefty,
No I’m not a gate keeper. But until you have been in the situation of either settling a case and moving on or fighting though a court battle for years it’s not your place to tell others how to behave. To contend that settlements aren’t effective is also wrong.
Basically what I’m saying is unless you are willing to donate money to a plaintiff to help pay for the action it is not your place to tell the plaintiff what to do with the case. There is a reason that every judge favors settlements over a trail.
I did try to look up the Ibara Brothers but can’t find anything.
13 Carlos Miller // Apr 10, 2009 at 2:52 PM
Duane,
Did you try this site?
http://carlosmiller.com/2008/03/09/houston-brothers-receive-17-million-in-wrongful-arrest-suit/
14 Duane Kerzic // Apr 10, 2009 at 2:54 PM
I tried google with the wrong spelling of the name. I used the spellng provided.
With the correct spelling it works in google also.
thank you.
15 Duane Kerzic // Apr 10, 2009 at 2:57 PM
I think it’s important to note that the Ibarra Brother incident ended in a settlement not a judgement.
16 freelance freebird // Apr 10, 2009 at 5:16 PM
As a matter of fact DK I’m involved in a case as we speak – there will be no out of court settlement, why you ask… plain and simple I’m the plaintiff and I say there will not be one! Does that ring a bell in your memory of judicial procedure…
Nice try but no cigar!
It’s called integrity and not greed – I don’t care if I get one cent (but I will) the $$$$ is little motivation, JUSTICE and VINDICATION are everything!
17 Duane Kerzic // Apr 10, 2009 at 6:10 PM
FF i suggest you read this book, A Civil Action by Johnathan Haar and http://en.wikipedia.org/wiki/A_Civil_Action I’m not trying to give you a hard time. Just want your eyes to be wide open to what happens.
I don’t know how far along your case is but it sounds like it’s very new. Why don’t you post the particulars? Such as who, what, why, where and when. Of course you could just give us the citation and we could look up the suit ourselves. It is after all a public record. Then let us know how it’s going in 3 month intervals until either the case is adjudicated or settled.
I’d pay particular attention to your agreement for representation. I’d suggest that you prepare for a disappointment in case things don’t go your way.
There are many ways to get justice and vindication. Every one’s definition is different.
18 John // Apr 11, 2009 at 2:11 PM
Duane,
I tend to agree with Freelance. No long lasting change will occur without a winning lawsuit that is brought to its conclusion.
I am not passing judgement on you Duane – each situation is different as is each litigant.
My goal is to have police academy training concerning photographer’s rights. I can’t see the class lasting for more than two hours – tops. As the current police academy lasts about five months I find it difficult to swallow that the training could not be included somehow.
Bureaucracies being what they are, however, means the county politicians and local police departments will resist change until being forced to change legally. The only way I see this happening is if a nonprofit sponsors a litigant’s case to the very end.
19 Duane Kerzic // Apr 11, 2009 at 2:37 PM
John,
My comments aren’t about anyone specifically but are about the system in general. I will be specific on this one point and predict right now that freebird will eventually settle his issue, however I don’t expect him to ever tell us. Why do I feel secure in making this prediction? Because about 90% of all civil cases are settled at some point. Over 85% of all criminal matters end in a plea which is basically a settlement.
Courts can only offer ‘remedies at law” which amounts money. They can’t offer vindication as a remedy.
I don’t think that police academy’s have to teach photographers rights so much as they have to teach basic civil rights and respect for those that they are sworn to protect. If this was taught the rights of photographers would also be respected. Having a camera doesn’t give you any special rights, but it also doesn’t deprive you of any rights. This depravation of rights because you have a camera is the problem we are seeing on this blog. This also includes respect for those accused of a crime.
Police officers have to become aware that the worst thing they can do is try to get a wrongful conviction. Putting someone in jail for something they didn’t do is a horrible thing. It’s also wrong when they escalate things by their actions to a point where they are charging someone that “asked for it” with some crime for which they provided the pretext. This has to stop and it just doesn’t happen to photographers.
Is there any wonder that the credibility of the police in general is as low as it is. Police departments have to take action to change things. They need to adopt something like one of the ISO 9000 standards. They need to invite and welcome public oversight at all levels. The citiznes will reward them when they behave correctly. They will do a better job, they will get more help to solve crimes. They will restore the job to one that’s to be respected.
20 John // Apr 11, 2009 at 3:30 PM
“I don’t think that police academy’s have to teach photographers rights so much as they have to teach basic civil rights”.
I’m looking for a pragmatic, working solution to this recurring problem and the only thing I can think of is specific training dealing only with electronic recording devices (both audio and video).
As much as I support police officers I notice that they are mostly physical guys (and girls) who do not take very well to talk of abstract topics. They tend to get tired and fall asleep. Talking with them about civil rights I see as being a big waste of time. Training them specifically how to deal with citizens with cameras in the age where everyone has one seems more practical and something they will use on a daily basis.
Courts can offer more than monetary remedies. In the 90′s the city of Miami was treating the homeless shamefully. They were sued (successfully) and required to change how the city handled them. There are, admittedly, some continued problems but everyone agrees that the situation is better than before the lawsuit.
“Police officers have to become aware that the worst thing they can do is try to get a wrongful conviction.”
I’m afraid you are wanting to train officers to be honest. You cannot train that. It is either a part of their character or it is not – like hair color. That is why so much screening is necessary before hiring.
What is preferable IMHO is to remove any excuses about their misunderstanding of the law. At that point it will be easier to remove the offending officer by weakening the union’s defensive position that he/she just didn’t know.
21 Duane Kerzic // Apr 11, 2009 at 4:05 PM
John,
I have to say it sounds like you teach criminal justice some place.
I assume you are referring to Pottinger v. City of Miami from 2 Feb 1996. That case was actually settled.
Cooperating ACLU attorney Benjamin S. Waxman noted that this was a landmark settlement recognizing that the homeless cannot be denied fundamental constitutional rights simply because they are homeless. Waxman felt that the settlement showed the best of what can be achieved when two sides of a dispute work together to find common ground to accomplish a mutual goal. The settlement mayserve as a model for how other cities treat the homeless.
http://law.jrank.org/pages/13212/Pottinger-v-City-Miami.html
I don’t believe you can train someone to be honest. Most people are more honest than not. But everyone lies at least a little about something, it’s part of the human condition.
The only reason I said what I did was because this goes beyond how they treat people that have a camera or a cell phone. If you go and watch something that’s a newsworthy happening even if you aren’t taking photos you’ll be asked to move along many times. If you don’t they do the same thing to you as if you had a camera. Yet the person probably has a right to watch as long as they don’t enter the actual investigation area.
22 Macro photography // Apr 12, 2009 at 1:48 AM
This was a good post, I enjoyed reading it.
23 Robert // Apr 13, 2009 at 12:53 AM
The police r trained 2 get people 2 say stupid things which can result in a felony, “is that a threat” if u mention a law suit is a good example.They call fake power “color of law” & if u think they can take your property see their SEARCH & SEASURE” manual. It actually says “U r putting your house & your car on the line when u violate defendants 4th admt rts”!
24 Duane Kerzic // Apr 13, 2009 at 10:42 AM
Robert said, The police r trained 2 get people 2 say stupid things which can result in a felony, “is that a threat” if u mention a law suit is a good example.
On the job at least. Then they wonder why no one wants to talk to them without a lawyer present.
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