Police in Ohio tasered and arrested a man after he video recorded them making an arrest, seizing his phone as “evidence,” even though the phone was not being used in the commission of a crime.
Lima police also tried to justify the tasering by claiming Michael Davis was reaching for the cop’s gun as they were violating his Constitutional rights by chasing him down and demanding his phone.
For those of us who follow this issue, or have at least read the U.S. Department of Justice’s guidelines on when police can seize cameras, the cops were clearly out of line because he was not using the camera in the commission of a crime. He was merely documenting police activity, which is protected by the First Amendment.
Also, the cops never gave Davis an opportunity to provide them with his information in order to be subpoenaed for the evidence they insisted they needed nor did they ever simply just ask him for a copy of the footage.
And they have yet to provide evidence that Davis was going to destroy that evidence, which would have allowed them to seize the phone under “exigent circumstances.”
Instead, they demanded he hand over his phone, then chased him down and snatched it from him, which is no different than strong-armed robbery committed by a thug on the street.
According to the Lima News:
Davis said he was doing nothing wrong on April 26 when he used his cell phone to record the traffic stop and arrest of a person on drug charges. The incident occurred outside a family member’s home on Linden Street he happened to be visiting. He said he only was exercising his First Amendment right.
But Lima Police Maj. Chip Protsman said Davis captured evidence of a felony crime. Officers found crack cocaine inside the car, and Protsman said police need the video to use as evidence.
Davis said it’s not his job to do the work of police, and the video is his property — along with his smartphone, which police still have at the Lima Police Department.
American Civil Liberties Union of Ohio spokesman Mike Brickner said police can confiscate a phone that records video if there is evidence of a crime and police reasonably believe the evidence could be lost or destroyed.
Brickner said the issue is relatively new, since the technology is new, and a court precedent has not become clear. So far, courts have been split on what police can or cannot do as this relates to search and seizure laws as well as privacy, he said.
“The fact this is murky is not necessarily surprising. Unfortunately and oftentimes, our Constitution and our laws don’t always keep pace with technology,” Brickner said.
It is not a “murky” issue. Numerous court cases have confirmed that citizens have the right to record without fear of arrest. And the only times police can seize your camera as “evidence” is if it was being used in the commission of a crime, such as child pornography or upskirting.
The only exception, as mentioned above, is when police believe there are “exigent circumstances,” meaning they fear the person with the camera will disappear or destroy the footage.
Lima Police Major Chip Protsman insisted they had to torture and rob Davis of his phone because he wouldn’t comply with their initial unlawful order.
The problem happened, Protsman said, when Davis refused to give officers his smartphone. It was compounded when Davis tried to walk away and an officer grabbed his arm. Davis further resisted and was tased when an officer thought he may be reaching for the officer’s gun during the arrest, Protsman said.
Davis said he never resisted arrest and police brutalized him. He said he kept repeating loudly he was not resisting so citizens at the scene could hear him. He said he still has injuries that are being treated.
Protsman doesn’t explain why they have been unable to obtain a warrant even though it’s been more than two weeks since they seized his phone, which indicates they are not that interested in using his footage as evidence in the initial arrest.
They were only interested in keeping him from recording that arrest.
Davis was charged with obstructing official business and resisting arrest. He intends to fight the charges.
Here is an excerpt from the USDOJ’s guidelines, citing extensive case law, that should clear up any murkiness:
Policies should include language to ensure that consent is not coerced, implicitly or explicitly. See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (“[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.”). In assessing whether an individual’s consent to search was freely and voluntarily given, Courts may consider “the characteristics of the accused . . . as well as the conditions under which the consent to search was given (such as the officer’s conduct; the number of officers present; and the duration, location, and time of the encounter).” United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). BPD’s explanation of the process for obtaining consent includes clear guidelines regarding what steps an officer should take once an individual provides an officer with consent to review a recording. However, BPD’s general order should include language to ensure that consent is not coerced, implicitly or explicitly.
Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” United States v. Place, 462 U.S. 696, 701 (1983). Any such seizure must be a “temporary restraint where needed to preserve evidence until police c[an] obtain a warrant.” Illinois v. McArthur, 531 U.S. 326, 334 (2001). Seizures must be limited to a reasonable period of time. For example, in Illinois v. McArthur, the Supreme court upheld a police officer’s warrantless seizure of a premises, in part, because police had good reason to fear that evidence would be destroyed and the restraint only lasted for two hours – “no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant.” Id. at 332. Once seized, officers may not search the contents of the property without first obtaining the warrant. Place, 462 U.S. at 701 & n.3. In the context of the seizure of recording devices, this means that officers may not search for or review an individual’s recordings absent a warrant.
Police departments must also recognize that the seizure of a camera that may contain evidence of a crime is significantly different from the seizure of other evidence because such seizure implicates the First, as well as the Fourth, Amendment. The Supreme Court has afforded heightened protection to recordings containing material protected by the First Amendment. An individual’s recording may contain both footage of a crime relevant to a police investigation and evidence of police misconduct. The latter falls squarely within the protection of First Amendment. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”). The warrantless seizure of such material is a form of prior restraint, a long disfavored practice. Roaden v. Kentucky, 413 U.S. 496, 503 (1973) (when an officer “br[ings] to an abrupt halt an orderly and presumptively legitimate distribution or exhibition” of material protected by the First Amendment, such action is “plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.”). See also Rossignol v. Voorhaar, 316 F.3d 516, 522 (4th Cir. 2003) (Where sheriff’s deputies suppressed newspapers critical of the sheriff “before the critical commentary ever reached the eyes of readers, their conduct met the classic definition of a prior restraint.”). An officer’s warrantless seizure of an individual’s recording of police activity is no different. See Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D. Penn 2005) (By restraining an individual from “publicizing or publishing what he has filmed,” officer’s “conduct clearly amounts to an unlawful prior restraint upon  protected speech.”); see Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634, 637 (D.Minn. 1972) (“it is clear to this court that the seizure and holding of the camera and undeveloped film was an unlawful ‘prior restraint’ whether or not the film was ever reviewed.”).
The warrantless seizure of material protected by the First Amendment “calls for a higher hurdle in the evaluation of reasonableness” under the Fourth Amendment. Roaden v. Kentucky, 413 U.S. 496, 504 (1973). Police departments should limit the circumstances under which cameras and recording devices can be seized and the length of the permissible seizure. BPD’s general order does not convey that the warrantless seizure of recording material is different than the warrantless seizure of many other types of evidence, in that it implicates the First, as well as the Fourth, Amendment. General Order J-16 should make it clear to officers that, in the ordinary course of events, there will not be facts justifying the seizure of cameras or recording devices. Moreover, General Order J-16 does not define “temporary” seizure. BPD should clarify how long and under what circumstances an officer may seize a recording device, even temporarily, and how the recordings on the device must be maintained after seizure. A policy permitting officers, with supervisory approval, to seize a film for no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant if that film contains critical evidence of a felony crime would diminish the likelihood of constitutional violations.