Home / Orlando Cop Threatens to Confiscate Camera as "Evidence"

Orlando Cop Threatens to Confiscate Camera as "Evidence"

 

Brian Green’s adventure with authorities last month did not end with him getting harassed by a parking enforcement officer (I’ve since learned that the term, “male meter maid,” is politically incorrect) day he went back to downtown Orlando and came close to having a suicidal woman fall on top of him.

This is how he describes it on his blog:

I heard a loud thud as i was walking around the corner of a building and to my surprise there was a body laying there. A lady jumped out of a parking garage and fell through the awning of the building below and then hit the pavement. Not even a minute or two after i had made it around the corner a bunch of cops showed up and i just started shooting.

He continued shooting after police arrived on the scene, which was when an Orlando police officer threatened to seize his camera as “evidence.”

Then she told him she didn’t want him trying to make himself famous on Youtube.

“I make my living off Youtube,” said Green in a quick telephone interview with Photography is Not a Crime Monday, who has more than 4,200 subscribers on his channel.

Although many cops threaten to confiscate cameras as evidence, they have no legal right to do so unless it is done under exigent circumstances, which means there is fear that the person will delete the evidence.

And in this case, it was just a bluff because there was nothing he was recording that contained any actual evidence.

His photo ended up running in the Orlando Sentinel.


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About Carlos Miller

Carlos Miller is founder and publisher of Photography is Not a Crime, which began as a one-man blog in 2007 to document his trial after he was arrested for photographing police during a journalistic assignment. He is also the author of The Citizen Journalist's Photography Handbook, which can be purchased through Amazon.
  • Tijuana Joe

    Ya gotta love Florida.
    Only about 0.5 % of the world population, but 30% of police abuse cases.
    I wonder if it’s somehow linked with their inability to count votes…

  • Difdi

    Yeah, threatening to seize a camera to STOP the images from being used as evidence or made public fails several different ways. It certainly fails any imaginable police exigent circumstances test.

    Armed robbery, evidence tampering and official malfeasance on the state side of it. 18USC242 over on the federal side.

    • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

      First, you can’t prove the elements of “armed robbery” in Florida. Robbery is larceny committed by force or threat of force and is a specific intent crime. Assuming that the officer did seize and enter the camera into evidence, you can’t prove the specific intent.

      Second, you can’t show tampering with evidence for the same reasons, unless you can show that he altered the video (or deleted it).

      Third, the officer’s actions don’t meet the elements of official misconduct in Florida.

      Finally, in a civil case, all you have to show is a preponderance of the evidence–what makes you think you can show, beyond a reasonable doubt, that the officer violated the civil rights of the subject?

      If the camera was seized, you’re better off going after a First & Fourth Amendment violation, together with a 43 USC 2000aa et seq. action.

      • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

        P.S., the cop was way out of line. It’s just not criminal what she did.

      • Difdi

        Seizing property without either a lawful warrant or an exigent circumstance is larceny. In many states, either statute or case law makes simply possessing a dangerous weapon while committing a robbery into armed robbery. Is Florida one of them?
        Proving evidence tampering is simple. Borrow or buy a cheap video camera, and video yourself retrieving the seized property from police. While on video, undelete the deleted images on the seized camera. Remember, a sworn statement is sufficient for an arrest warrant to be issued, having video evidence just makes it easier.
        If committing robbery (armed or otherwise), lying in official reports and committing federal crimes (18USC242) is not official misconduct in Florida, it’s difficult to imagine what might be, and an official misconduct charge is somewhat trivial if you have to commit treason or murder to be guilty of misconduct.
        Civil cases being dismissed have little to do with criminal cases, and all the laws I’ve been discussing are criminal, not civil. Prosecutors routinely get convictions (or at least guilty pleas) on flimsier evidence, so it wouldn’t be hard to prove beyond a reasonable doubt.
        Taking pictures is covered by the first amendment. This is not new case law, it’s been this way for decades. Longer I’d wager, than the officer in question has been alive, let alone since beginning his training as a law enforcement officer. Seizing a camera because it was used in the exercise of a constitutionally-protected right is a highly suspicious act, and if that seizure was to prevent the exercise of rights, then yes, that seizure is indeed use of official authority to commit a violation of rights under color of law.

        • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

          OK, we’ll make this simple. It’s not larceny the way you described it. All criminal offenses have two components, the actus reus (the actual act) and the mens rea (the intent). To prove larceny you have to show both. First, you have to have the unauthorized taking of the property of another, the actus reus. Second, you have to intend to permanently deprive the owner of the property, the mens rea. You can show the first, but you can’t show the second. If the property is being placed into evidence, it will be at some point returned to the owner, which means there is no intent to permanently deprive the owner. Ergo, no larceny. If you have no larceny, then you can have no robbery.

          Seizing property without a warrant or an exigent circumstance may ( an is) a tort, but it is not a criminal act.

          The difference I was trying to point out in civil and criminal cases is the burden of proof. Civil cases require a preponderance of the evidence, or more likely than not. Criminal cases require proof beyond a reasonable doubt, a much higher standard. If you can’t prove the civil case to the preponderance of the evidence standard, it is impossible to prove guilt beyond a reasonable doubt. Note that I did not say difficult to prove, I said impossible to prove. The plaintiff could not meet their burden, much less prove by a preponderance of the evidence–by definition this precludes proving it beyond a reasonable doubt.

          • Difdi

            So, in other words, if you mug a person but don’t intend to keep what you stole, then turn the stolen item in to a lost and found bin at the local police station, the state would be unable to convict you? Riiiiight.

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            “[T]he trial court’s reasoning in the present case that the officers committed a theft is erroneous because they did not possess the requisite intent to temporarily or permanently deprive the owners of the [property] or of their right to use their property.”

            State v. Fisher, 591 So. 2d 1049, 1051 (Fla. Dist. Ct. App. 1991)

            Directly on point. You have to have intent or there is no crime.

          • Difdi

            That ruling ignores the equal protection clause of the constitution. If it is impossible to commit a crime because you are employed as law enforcement, then the clause is violated.

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            It doesn’t just apply to officers, anyone has to have the intent to deprive the owner of the property or it is not larceny.

            “The intent to steal or deprive the victim of the victim’s property is a necessary element of grand theft.”

            T.L.M. v. State, 755 So. 2d 749, 751 (Fla. Dist. Ct. App. 2000) (describing a juvenile’s lack of intent to deprive the owner of their property); Szilagyi v. State, 564 So. 2d 644 (Fla. Dist. Ct. App. 1990) (describing a business that was failing and stopped paying its bills did not have intent to deprive the owner of its property); and Risebrough v. State, 313 So. 2d 48 (Fla. Dist. Ct. App. 1975) (Intent of defendant to permanently deprive owner of motor vehicle is a material element of auto theft).

            These are just a few examples. I could list numerous other cases that say the same thing. I listed the case I did because it was directly on point.

            There is no equal protection issue. Officers are held to the same standard as everyone else, but you have to show the elements of the offense, and this includes the mens rea of the offense.

            Your animus against officers is clear, and I understand it, but it does not mean that you can charge them with offenses when the elements of the offense are not there.

          • Difdi

            I have no ‘animus’ against anyone but criminals who break their oaths to commit their crimes.
            How can you seize someone’s property without intending to temporarily deprive them of their property? Unless you are literally in the midst of a psychotic break with reality, the act itself shows that intent.
            Your animus against civil rights is clear, and I understand it, but it does not mean that you can ignore crimes on preposterous legal technicalities and mental states that cannot exist without someone being mentally incompetent.

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            I guess the statement that “better that ten guilty persons escape than that one innocent suffer” wouldn’t mean much to you either.

            I’m all for civil rights–including those due police officers. They don’t give up their rights when they put on a badge and a gun.

          • Difdi

            And that was an ad hominem attack from you. Why do you need to attack me to refute my argument?
            Why does using your own words against you evoke such irrational hostility from you?
            Police officers don’t give up their rights, no. But they don’t gain any special rights, either. Why do you take my insisting that police officers be held to the same standard as those who have not sworn an oath to the law are held to, to be hatred of them?

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            Because you are not advocating the same standard, but a higher standard. Very few offenders are charged with both state and federal offenses, and some of the offenses that you keep advocating 18 USC 242 charges for are normally misdemeanors in most state courts, yet you want to punish them more harshly (10 years) than the average citizen would receive for a like offense.

            I’m not advocating special rights for officers, and I certainly do not have a problem with charging officers for criminal offenses that they have committed. I have done that and seen it done in my career, both with misdemeanor and felony charges. I’ve done so knowing that minor misdemeanor charges in this state results in their loss of their license to be an officer.

            I just don’t believe that you are taking the time to understand all of the factors involved in a prosecution, especially the elements of the offense that have to be met. The same thing happens with non-officers that are charged, which is one of the reasons that charges are dropped on a lot of photography rights cases. Once it gets to an attorney, they look at it and realize that it doesn’t meet the elements of the offense.

          • Difdi

            Are you seriously saying that someone who swears an oath to uphold the law and is therefore entrusted with greater authority should not suffer a higher penalty for breaking the oath and violating that trust?
            I’m done arguing with an insane person.

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            There are numerous offenses where the greater authority does bring a higher penalty, but unless the legislature calls for a higher penalty in the statute, it is not appropriate to arbitrarily increase punishment without a basis in law.

            An example. In Texas, theft under $50 is a C misdemeanor, punishable by a $500 fine & no jail time. Theft under $50 by a public servant (i.e., a cop) is raised one penalty grade to a B misdemeanor, up to 6 months in jail and a $2000 fine.

            That is appropriate.

            What is not appropriate is for EITHER the public servant or the citizen/civilian/member of the public to be convicted of theft when not all of the elements of the offense are met.

            There are other crimes that focus strictly on a cop’s duties and performance, such as Official Oppression or Official Misconduct–I fully support the enforcement of these and other laws, when the elements are there and it is appropriate.

            I do not think it is appropriate to send someone to federal prison for 10 years for a misdemeanor that would only get him 6-12 months in state court.

            You of course have the right to believe that. People also believe in the “Sovereign Citizen” movement, the 9/11 conspiracy, and the Easter bunny.

          • Difdi

            I never suggested sending someone to prison for 10 years for a misdemeanor. I suggested it for a felony, as is spelled out in the statute.

  • steveo

    This is how you spell Censorship.

  • Boomer

    I honestly feel sorry for this officer. It’s completely clear to me that there’s some serious difficulty for her in following the law, and honoring her oath, as another reader whom I admire is fond of noting. Her oath, apparently, didn’t include the correct language to remind this officer that her mandate isn’t to do what she wishes, it is to follow the law.

    Green’s blog has some examples of his photography, mostly in black and white. The images there are riveting, inviting more reflection, and study. I found them remarkable, and to put it bluntly, I’m going to look for more of his work.

    But that aside, even if Green were not the professional he clearly is, even if he were the random bystander with the ubiquitous cell phone camera everyone seems to have these days, he would be no less engaging in protected behavior than if he had a tan fedora with a card reading “PRESS” in the hatband similar to what you see in the film noir classics. The pictures form a part of the story, and in many ways convey the story in ways that in which words alone fall drastically short.

    I think of some of the great photos, historic, iconic photos, snapped at complete random. John Filo’s astounding photo of Mary Vecchio at Kent State in ’70, the Arnold Hardy photograph of the jumper from the Winecoff Hotel Fire in ’46, Bob Jackson’s amazing photo of the crowd on the streets of Dallas just moments before JFK’s murder in ’63, and two days later the photo of Jack Ruby shooting Lee Oswald, and that iconic photo of Juan Romero holding Bobby Kennedy in ’68. These are all remarkable photographs, telling a story, of random events, caught more by accident than by careful planning. And that is rightfully protected.

    The tragedy was directly within the view of Brian Green, and, finding it interesting he began to take photographs. That’s not subject to the officer’s approval, acceptance or belief in it’s propriety. That she felt it necessary to detach herself from the team investigating the death to threaten Green is sad, because it’s so pointless. It was not “her” crime scene, it was “a” crime scene she was assigned to investigate. The officer took it upon herself to decide that Green couldn’t take photos, or that she could “take” his camera. Most of the readers here know that isn’t true, and that Green was under no threat of the officer legally doing so. I can’t accuse her of lying, because she may fully believe what she said, but I can accuse her of being very badly informed, and behaving with petulance when professionalism was called for.

    As for the “not make yourself famous on YouTube”, comment, again, it’s just sad. The officer doesn’t get to make that decision as part of her mandate, she’s not the judge and jury of who’s a star and who isn’t, on any media, and I can’t believe any shift supervisor told line officers at roll call “Don’t let anyone become a star on YouTube.” Law enforcement doesn’t get to do that. That the officer was free to walk over and confront Green in this manner suggests to me that she wasn’t really needed at “her” crime scene and had time to engage in attempting to restrict actions she did not agree with on a personal level.

    Bravo to Brian Green.

  • Guest

    First off,…..I hope Mr. Green obtained her name and badge number
    and immediately filed a complaint against her ! If he didn’t then he’s
    deserving of another encounter until he get’s it right. Also, Mr. Green you should have videotaped her face. How can we make her famous if we don’t have her mug shot ?

    On that note, there needs to be a flood calling when these encounters happen. Phone numbers to the Police that were involved, Mayors Office, District Attorney’s Office, ACLU (advising them) Etc. Complain about these encounters and demand that the “rights violator” is reprimanded and demand training so it doesn’t happen to anyone again.

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