New York City police illegally confiscated the phone of a second man in the wake of officer-involved shooting of a knife-wielding man in Times Square Saturday.
And finally, the New York Times is addressing the issue.
In an article published Tuesday, two days after I published a piece explaining how police can only confiscate a camera under exigent circumstances, the New York Times stated the following:
Investigators can legally confiscate a cellphone and review the video only after obtaining a court order. That is not required if the owner consents, Professor Cunningham said.
“Consent is a tricky thing, because sometimes the police don’t make it seem like you have much of a choice,” Professor Cunningham said. Many people do not know that they have a right to decline, or would be reluctant to exercise that right, he said.
The police are required to give anyone whose property is taken a voucher, a form that serves as a receipt. Investigators are permitted to keep the phone until the case is completed if they obtained it consensually or through a subpoena, Mr. Cunningham said.
In 2009, Police Commissioner Raymond W. Kelly issued an order making clear that officers cannot demand to view photos or video footage without consent, barring “exigent circumstances.” Investigators prefer to download the video themselves, rather than rely on an individual to e-mail or copy the file for them. The reason, Mr. Cunningham said, has to do with the chain of custody.
Kelly also issued an order in November 2011 to his officers, forbidding them from interfering with the media as they do their job, but that was also ignored.
The second man to have his phone confiscated after the Times Square shooting of Darrius Kennedy was a man named Edgar Delgado, a ticket agent for a bus tour company.
Police finally returned his phone on Tuesday, most likely because it didn’t even contain footage of the shooting.
But that still doesn’t make up for the fact they intimidated him into turning it over.
“I felt powerless, because I couldn’t do anything. What could I have done against all these people? I thought this must be illegal, because why can’t they just download the video there?”
An NYPD spokesman told the Times that they “reviewed” the footage captured by two citizens standing near the shooting but none actually captured the actual shooting.
Paul Brown said the phones have been returned to their owners but wouldn’t provide the names of those citizens.
So far, the only other citizen that we know of that had their phone confiscated was a man named Julian Miller, who was visiting from Boston.
On Saturday, Miller told the Times he had recorded the actual shooting. But then police ordered him to turn over his phone.
“I didn’t think I had a choice,” he said. “They said they would give it back.”
But on Tuesday, when the Times tried to call him for a follow-up interview, specifically to see if police had returned his phone, the phone went unanswered.
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CARLOS MILLER’S LEGAL DEFENSE FUND
I am immersed in a legal case where I not only want to clear my criminal charges stemming from my arrest in January, but I want to sue the Miami-Dade Police Department for deleting my footage, which I was able to recover.
My goal is to set some type of precedent to ensure this does not happen as often as it does today where cops simply get away with it.
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