Now that the story has made national news, the Miami Beach Police Department released a statement this week claiming they did not destroy a man’s cell phone in the aftermath of a controversial shooting on Memorial Day.

But they had no qualms about confiscating it. In fact, they have a history of doing that, according to this Miami New Times article from January 2011.

The following is from their recent statement where they acknowledged confiscating Narces Benoit’s cell phone, but not destoying it, as he claimed.

Any and all video of the incident is crucial to the investigation, and it is not unusual for police to secure any video that may have evidentiary value. Several other phones were also secured during the course of the investigation.

Contrary to Mr. Benoit’s statements to the media, the cell phone turned over to the Miami Beach Police Department is in working order; the only damage observed to the cell phone is to the lower right portion of the LCD screen and it is unknown when this damage occurred.

This damage does not appear consistent with Mr. Benoit’s statements to the media that his phone was “smashed.”

In fact, they confiscated a total of three camera phones and two SIM cards, Miami Beach police spokesman Juan Sanchez confirmed to Photography is Not a Crime Wednesday

And that doesn’t include the camera they confiscated from a Local 10 reporter, which they returned several hours later.

In their statement, which can be read in its entirety along with pictures of Benoit’s phone on the South Florida Daily Blog, police explained they initially approached Benoit because he matched the description of one of the suspects they were seeking Both were black).

They then brought him down to the station as a witness where they seized his camera as “investigative evidence.”

So naturally that brings us to the question that keeps popping up lately: Can police legally seize your camera as evidence without a subpoena.

Two attorneys I interviewed in 2009 in the wake of the Oscar Grant incident said that police can only seize your camera if it was used in the commission of a crime, such as child pornography or upskirting.

And more recently, Mickey H. Osterreicher, attorney for the National Press Photographers Association reiterated those statements in a letter to Miami Beach Police Chief Carlos Noriega (bold emphasis mine):

Your officers should be well aware that they may only seize the property of another pursuant to a lawful arrest or by court order. Their alleged actions with regard to the seizure of a WPLG camera from a working photojournalist cannot be tolerated. Video showing another officer pointing his weapon at an unarmed citizen, who was then allegedly pulled from his car, placed face down on the pavement, handcuffed and threatened at gunpoint is an affront to the public. For officers to do so and then smash his cell phone in hopes of destroying any recordings should make them liable for both criminal and departmental prosecution.  

However, another attorney I interviewed said officers do have the right to confiscate your camera to preserve evidence.

This can only be done in extreme cases such as homicides, rapes or kidnappings, said Michael Pancier, who not only is a nature photographer, but is representing me in my case against 50 State.

In other words, he is a strong advocate for photographers’ rights.

The alternative (to confiscating camera) is that they detain you until such time as a subpoena is obtained which could be days.

Evidence has to be preserved.  If you photographed a murder scene; that’s evidence;  they can’t just let you go and hope that you don’t delete it or alter it.   If the evidence is not immediately preserved, it may be challenged and may be inadmissible. Likewise, if the evidence is destroyed or lost because it was not preserved; then a whole case whether for the state or the defense may go down the tubes.  It’s no difference than say if your car got bullet holes as a result of a nearby shooting;  or if your purse was recovered by a mugger caught by police; they confiscate it as evidence;  all could be confiscated as evidence.  No subpoena is required.   You’ll get it back; but under these circumstances, where you as a bystander have evidence of a crime; it needs to be preserved immediately at the scene.  I believe the police have the discretion to confiscate it as evidence.

But again, they can’t take it if they are simply pissed that you taped them where no crime has been captured on the tape.

I asked Pancier what is more important, preserving the evidence or preserving the Fourth Amendment and he said preserving the evidence is preserving the Fifth Amendment that entitles a suspect to due process in the legal system.

“When you have a serious crime where somebody can do 25 years to life, then it’s important to gather all the evidence,” he said.

Because that video clip might turn out to be exculpatory evidence, meaning it could prove the defendant’s innocence.

I have not come across any laws or statute that give concrete details about what police can and can’t do in these situations.

Like many legal matters, it is up to debate.

So perhaps the best thing to do is acquire a camera that live streams, which would enable you to preserve your footage regardless of what happens with the cops.

But me personally, I would not willingly give up my camera, especially if it was a high-profile case like the one in Miami Beach.

I would post it on my site, then on Miami Beach 411, then on Facebook, then on Twitter and then send police a link to my video. That’s only fair, I think.