In another example of how the mainstream media is nothing but a shill for police, KATU News in Oregon reported on this week’s story on the Gresham cop who snatched a phone from a woman who was video recording with the following headline:
“To Protect Evidence of a Crime, Police Can Seize Your Cellphone”
The story goes on to state the following:
Gresham police say officers don’t need a warrant to seize the phone when they feel the evidence on it is in jeopardy of being erased, but they would need a warrant to actually look at the phone’s contents without the owner’s consent.
“In this case, all it takes is – delete – and the evidence is gone, and especially if someone is (backing away) – I’m not going to give you that – you’re real close to losing evidence,” Grandjean said.
In this case the law appears to be on the police officer’s side. The case is different than some previous cases where police have seized citizen’s cellphones, even putting a man in jail for recording in public, only later to admit they were wrong.
In those previous cases, police officers have seized cellphones, because they believed the act of recording itself was a crime.
In 2008 Beaverton police not only took Hao Vang’s phone he spent a night in jail after he took video of his friend being arrested.
Police said he violated Oregon law that says you can’t record someone’s audio without their permission. But Beaverton ended up paying Vang for unjust treatment. Gresham police say that was a different circumstance.
“The courts have found that holding the phone up like this is enough notification,” Grandjean said. “You’ve told people, we all know what they’re doing so you have that situation. In this situation you have somebody recording evidence of a crime.”
KATU reporter Dan Tilkin, of course, didn’t bother to ask Grandjean exactly what court cases he was referring to that allow police to confiscate your phone.
Perhaps if he would have done his own research instead of depending on the department flack, he would have discovered what the U.S. Department of Justice said about this subject in the guidelines it issued last year.
The guidelines are written a little more complex than your typical television soundbite, which it’s why it’s understandable why a talking head like Tilkin wouldn’t be able to comprehend them, so I will try to highlight the key sentences by making them bold.
Policies on individuals’ right to record and observe police should provide officers with clear guidance on the limited circumstances under which it may be permissible to seize recordings and recording devices. An officer’s response to an individual’s recording often implicates both the First and Fourth Amendment, so it’s particularly important that a general order is consistent with basic search and seizure principles. A general order should provide officers with guidance on how to lawfully seek an individual’s consent to review photographs or recordings and the types of circumstances that do—and do not—provide exigent circumstances to seize recording devices, the permissible length of such a seizure, and the prohibition against warrantless searches once a device has been seized. Moreover, this guidance must reflect the special protection afforded to First Amendment materials.
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.
In the video, Gresham police officer Taylor Letsis clearly attempted to coerce Carrie Medina into handing over her phone so he could review her footage. And when she questioned his orders, he snatched it from her.
“Can I see your video?”
“Ok, I need to see your video to see if it has any evidence of a crime.”
“Yes, it’s not a choice.”
“It’s not a choice?”
“It’s not a choice. Either you can show it to me right now and we can look over it and see if it has anything that I need. And if it doesn’t, then you can keep it and go on your way. If it does show something that we need, I’m going to have you see if you can email it to me or we may have to take the phone.”
“OK, well it’s live on the internet, so I don’t have access to it, so that’s one issue.”
“Well, then, why don’t you show it to me?”
“And if I refuse?”
“Then I will have to seize the phone.”
“You’re going to take my phone?”
“You’re not legally asking me with a subpoena.”
“I don’t need a subpoena to search your phone for evidence.”
“I don’t want to show you.”
He snatches the phone.
The crime in question was a teenager who was arrested for resisting arrest, which as we all know, is a charge they tack on to anybody when they can’t think of an actual crime committed.
We’re not talking felony murder here.
However, Medina said that two of the officers slammed the youth to the ground while arresting him and that once the camera was off, Letsis seemed more concerned about whether or not that had been caught on video, so let’s reemphasize this portion of the USDOJ guidelines.
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.
Letsis wasn’t seizing Medina’s camera to obtain evidence against the teenager for a measly resisting arrest charge, which most likely would result in the teen spending a night in jail and paying some fines or serving some community hours if even that.
No, Letsis was concerned about his fellow officers being exposed for using excessive force, something he has personal experience with because he and several other officers were exposed last November when they were caught on a citizen’s camera for beating and tasing a man in a transit station because he had not paid the fare.
Tilkin, unfortunately, is your typical chickenshit television reporter who claims to be “on your side” as he conducts his “investigation,” but it’s evident from this piece that he is just another corporate sellout who will never do anything that would cut off his access to the police department’s media relations department.
It’s the same reason why the mainstream media in Miami mostly refused to acknowledge my arrest last year or even my incident on the Metrorail last month.
The media is not on the side of the people. They are on the side of the institutions who feed them just enough information to air their nightly broadcasts.
Note that Tilkin didn’t even mention Letsis’ name once in his report, which is failure of basic Journalism 101.
If Tilkin really wanted to do justice to his viewers on this topic, he would have explained that police can only confiscate your camera as evidence under exigent circumstances, which is when the cop has reasonable suspicion to believe the evidence in question faces imminent destruction.
Medina told him she was recording live and she gave no other indication that she would destroy the video. It would seem rather pointless to openly stand there video recording them with the intention of deleting the footage.
Also, exigent circumstances would only come into play if the evidence she had recorded was that of a serious felony crime such as a murder or an armed robbery – a crime that includes victims – not a measly misdemeanor charge of resisting arrest in which the only victim is the teen who was arrested.
And even if he had enough probable cause to seize the camera under exigent circumstances, he would still need a warrant or subpoena to view the footage.
Instead, Letsis fumbled with the phone in an attempt to view the footage, then threatened Medina with arrest if she didn’t show him how to view the video.
What did the USDOJ say about coercion?
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.”)
This wasn’t subtle coercion, this was strong-armed robbery.
This wasn’t just an invasion of her privacy, this was an illegal detainment.
This wasn’t permissible by law no matter what Talkin reports.
This was a flagrant violation of her First, Fourth and Fourteenth Amendment rights.
Check out the incident in the video below. The action begins at 4:15.