Confiscated Cell Phone Footage of Beating Death Released; Footage from Second Phone Apparently Deleted (Updated)


Cell phone footage that was confiscated after the police beating death of a Bakersfield man was released this week, not showing much as far as the beating goes, but capturing David Silva’s horrific screams during the last moments of his life.

However, footage from the second phone that was confiscated that was more incriminating, showing the actual swinging of the batons, was apparently deleted.

And according to an attorney, it doesn’t look as if even the FBI has the capability to recover it because of the type of phone it is (check out video below for details).


David Silva
David Silva


Silva, a 33-year-old father of four, was pronounced dead at a Kern Medical Center less than an hour after he was confronted by seven Kern County Sheriff’s deputies and two California Highway Patrol officers on May 7.

Silva was apparently intoxicated and had gone to the hospital to seek treatment but was turned away. He ended up falling asleep in front of a house across the street from the hospital where somebody called authorities to remove him.

When deputies arrived, they roused him from his sleep and started beating him.

According to the Los Angeles Times:

Echoing the account of two other people interviewed, Vasquez said the first two deputies at the scene woke Silva, who was sleeping in front of a house, and ordered him not to move. When Silva sat up, looking confused or scared, a deputy hit him in the head, Vasquez said.

“He fell back and then the other officer got out and swung toward his head,” she said. “Mr. Silva was reaching for his head and the officers said ‘stop moving’ and ‘stop resisting.’ He wasn’t resisting. … He rolled on his back and they kept hitting.”

More deputies and two California Highway Patrol officers arrived at the location. Vasquez said the deputies hogtied Silva, lifted him off the ground and dropped him twice, and delivered more baton blows and kicks to his head and body until he went limp.

“He was screaming for help. He was laying on his chest. The cops were still on top of him, still hitting him. My family and I screamed at them to stop hitting him.… The blood was all over Mr. Silva’s face. We couldn’t even tell if he had eyes or a mouth.”

Vasquez said her girlfriend yelled, ” ‘Somebody call the cops,’ and everybody looked at her and said, ‘They ARE the cops.’ “

It wasn’t until after he had been pronounced dead at the hospital around midnight that deputies began seeking the footage that had been recorded, calling a witness who had called 911 during the beating and had told a dispatcher that she was recording video.

Maria Melendez had given the dispatcher her phone number, which the deputies used to call her at 2 a.m., asking if she had uploaded the video to the internet yet.

When she said no, they told her, “that’s good,” and “don’t you dare do it,” according to attorney Daniel Rodriguez, who goes into details about the camera confiscations in the video below.



Rodriguez explained that deputies went to Melendez’s house and had her call Francisco Arrieta, who also recorded the beating on his phone, ordering him to come to her house.

Both witnesses refused to hand over their phones without a warrant, so deputies detained them for several hours, refusing to let them out of their sight until a warrant arrived.

Arrieta finally had to go to work a few hours later, so he handed the phone over because he didn’t want to lose his job. Melendez didn’t hand the phone over until 1 p.m. when the warrant arrived.

The phones were then handed over to the Bakersfield Police Department but when they were returned to the sheriff’s office, footage from Arrieta’s phone was missing, according to the Huffington Post.

Both witnesses were detained illegally, according to Rodriguez, because they had not committed a crime.

Here is some of what Rodriguez said in the above video:

“They don’t have a search warrant and they demand the phones,” he said. “And this thing of ‘freezing the crime scene,’ we have to remind everybody, this was not the crime scene. The crime scene was over at the hospital, so this freezing of the residence is illegal, is unconstitutional.

“They’re not the criminals. They had nothing to do with the crime, if in fact, a crime was committed. If you’ve not committed a crime and because you’re a witness, that does not allow you to be detained and be held against your will. That’s not the way the law works. You have the right to come and go as you please.

“Now if you’re suspected of committing a crime, it’s a whole different ballgame. If there’s probable cause, then police have the right to detain you.

“But here, they have the right to videotape. That is not a crime. They have an absolute Constitutional right to do that and they have an absolute Constitutional right to disseminate it, to publish it, to put it on Youtube, to put it on Facebook.”

One thing that hasn’t been mentioned is the body-mounted audio recordings and dash cam footage from the two CHP officers who were also at the scene, which will no doubt provide more evidence against the officers.

UPDATE:  Questionable autopsy performed by Kern County Coroner – who reports to the Kern County Sheriff – determined that Silva died of heart disease, not from the beating.

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.

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  • io-io

    Where is the record for the chain of possession?

    It is obvious from the conversation that the intent was to prevent the videos from being uploaded to the Internet. Was this fact provided to the Judge who signed the search warrant? Being able to read the warrant that was prepared would be very interesting. Was sufficient details presented to the Judge, enabling the Judge to make a reasonable decision? Why was not a Subpoena not requested/issued. It seems that the DA might also be culpable here.

    It does appear that a disinterested third party received the video – the Bakersfield Police Department – which was good, just not disinterested enough to prevent the video from being “disappeared”. So the dog ate the video?

    When are arrests expected in the deletion of the video? – probably never…..

    So whom ever deleted the video will be charged with Murder – after the fact? – I doubt it….

    Will the officers who “invited” themselves into the home to “acquire” the video, be charged with home invasion and extortion, along with witness tampering and destruction of evidence? How about criminal conspiracy and RICO? How about theft of IP (intellectual property) and theft of copyright (copyright infringement)?

    “(2) In a case where the copyright owner sustains the burden of proving, and the court
    finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.”

    • Publius Federali

      Right on io-io! We must demand that public officials be held to the same standard that we are held.

      This is not just about the police, we must understand that the police are just the Gestapo agents of our government. It’s the system. None of this can happen if the judges and prosecutors are not in on it as well.

      Regardless of badges, these police who detained the two people filming committed a crime. If I walk into your house and don’t let you leave for half a day the police would be at my house to arrest me in no time. Why does this not happen to those cops? You don’t get a pass because you have a badge. So where is the DA here?

      How about the judge? Why would he grant a warrant to take the phones. Perhaps to copy the video footage, but to confiscate the phones. This judge needs to be removed from office, but they will not do it since the judge works for the same politicians who need to protect their Gestapo.

      This idea that we will solve this in civil court is a joke. The cops don’t pay the fine, we the taxpayers do. The cops don’t pay for their lawyers, we the taxpayer cover it through their union dues paid by the salary they steal from us. The cops don’t pay for the crime because they are never prosecuted.

      We have won this in court already, video taping officers is legal. Yet regardless of court decisions only an idiot believes that you can video tape cops. We all know that the cops do not care about the law, they will arrest you, beat you, imprison you and potentially kill you for doing what the courts say you can do.

      I don’t believe in initiating violence, but only an idiot does not see the potential for this to escalate into something bad. Can anyone really claim that they think it is impossible that a mob of people will attack a group of cops one day when something like this happens? You already see the people yelling at the cops when they do this, how long before the first beer bottle goes flying in their direction and all hell breaks loose from there.

      • Harry Balzanya

        This is why they are being armed by the milatary.Beer bottles? Honestly they will use deadly force and the authoritarian corporate media will never mention how it started.

      • Barking Dog

        I’m in court for the last 4 years on a camera case. Just got the footage that they should have given 4 years ago. Not looking good for the cops.

        As such I’ve made 20 visits to the courthouse with plenty of time to look around and see what goes on.

        I watched as a detective got a warrant from a judge by whispering to him with nobody hearing or recording the nonsense he tells the judge. Steno wasn’t even in the room.

        Some whoppers must get told on that basis.

  • Name

    Why can’t the footage be recovered? There are many tools the FBI can use:

    • paulthecabdriver

      because they don’t want to recover it.

  • Publius Federali

    Carlos, the stories about cops being trained to pretend cell phones are guns just made Drudge Report. It’s a link to an article that you were quoted in.

    Keep up the great work!

    Unfortunately it is now clear that the police do not care about the law. They are well aware that filming police is legal, yet they have clearly decided to ignore that court decision and continue arresting those filming under false pretenses. Now we can wait another three years for these cases to go through the system. After that they will find another excuse, and maybe by 2055 it will be settled law.

    To reiterate my continual question, what happens to the police when they knowingly violate the law? Why is there no criminal prosecution? If we behave like this we go to prison. Until police are prosecuted criminally this will never stop. Where are the 50 State goons that almost killed Carlos? Are they being prosecuted? Are they in prison? Where would Carlos be if he had tried to push them down the stairs?

    • bj

      Can’t DOJ issue an edited memo or a new one? Would pressure on them help?

    • Barking Dog

      The reason the cops get away with what they do is the fact that they are in charge of the laws they break.

      Complaining to them is like complaining to the Mafia that their hit men are killing people.

  • John

    Someone needs to start forcing Federal Civil rights suits after these kangaroo local investigations.

    This is a pattern of abuse. The criminals within departments are learning from each other. This is out of control.

    • John J. Barrister

      It doesn’t matter, the cities by their own statues are obligated to indemnify the officers for such suits. The only response must be, if and when a civil right suit leads to a judgment or settlement against the city, the cops must be cashiered, deprived of pension and then prosecuted criminally.

  • Kristy

    Keep up the good work Carlos.

  • discarted
    • Barking Dog

      EASUS make a real good unerase program but we use the San Disk one (they make the memory cards) for cards.

      The EASUS one is better for hard drives, but sometimes I use it when San Disk fails.

      Another thing, I have problems getting back from Olympus because it seems those cams overwrite the old data with ones and zeros, while my Kodak just erases the table of contents file so the data can be overwritten. The data is still there, it just gets erased as new stuff comes on.

      What that means is if they delete you, don’t use that card again until forensics can handle it. You’ll be erasing what’s been deleted. With most cams and hard drives, that’s how it works.

      The data is still there but the table of contents is gone so you can overwrite. The unerase programs bring back the table, not the contents. The table gives access.

      Word of unrelated warning: Those thumb drives seem to lose the data as soon as you delete it. Not sure why, just an observance.

  • discarted

    “One thing that hasn’t been mentioned is the body-mounted audio recordings and dash cam footage from the two CHP officers who were also at the scene, which will no doubt provide more evidence against the officers.”

    One patrol unit was parked in a way that the camera did not capture what happened. Haven’t heard anything about the other dashcam.

    • Barking Dog

      and you won’t……

  • NorthoftheBorder Gold

    Stone Cold Killers, if you ask me.

  • bj

    Thanks for the update Carlos.
    We should support Carlos’ work via donations. At this critical juncture, his research is more important than ever.

  • The Roof

    That was why killing Chris Dorner story was so critical to law enforcement.

  • pigslop123

    that is some serious fucked up shit. those cops should be fucking beaten to death those fuckers!

  • Dawn Renee Radford

    This is why we need an app that records directly to the cloud, and the data needs to be effectively indelible.

    • Barking Dog

      Or better still, have them wear the cam with the upload capabilities

    • Adverbia


  • Voodoo.13

    This why people need to download the Qik app. That way it goes directly onto the web.

  • Michael Hall

    Over and over we hear/see/learn about these things that have been going on for decades(especially if your nonwhite) and the main reason its coming up is because of these cell phones that can now record…Until we rise up as one…and start marching in the streets in protest and shutting down the economy and commence disobedience to TYRANNY(obama-you hear this?) we will keep slip sliding into this decay and rot to embrace the abyss…

  • cynthia

    I just wish that partnersspouses would use ‘default judgement’ process on the officers that engage in this violence, demanding their immediate jail time, followed by minimum days of community service, and manditory sensitivity training, and ‘law’ training, etc. But, typically they are clueless and will only ‘play in the legal sandox’…. sigh

  • Fred

    If I was called to jury duty, and the case involved somebody who had killed all of the cops involved, along with the judges and prosecutors who refuse to throw them in prison, I would vote ‘not guilty.’

  • David C. MacLean

    It seems that people have forgotten that the best way, legally, to handle rogue cops (the 95% who give the good 5% a bad name) is through the court system like the families that got O.J. Simpson nailed to a 33+ million dollar payback. Take them to court and get huge payments in actual and punitive damages that must be paid by the officers themselves and by the municipality or state that employs them. A city having to pay out a multimillion lawsuit to the families may think twice about having rogue cops on its payroll, especially if it has to pay out several lawsuits at once, one per cop rather than having them all joined into one to save money. Money is what talks…ask any teenager…or father who has to pay child support. Take away some city’s money and watch how long those cops stay on payroll! Take away those cops’ future earnings and watch how the newbies watch what they are doing and treat people right. The only reason these cops do what they do is because no one holds them accountable for their actions and the senior cops give them a slap on the wrist…take away half of their future income and watch the remainder clean up their act!

  • Chompachangas

    So, lesson learned. Always upload your police beating/death videos to multiple hosts. Got it. Scumbags.

    • Gary Foster

      maybe upload to a torrent file, it should get quickly shared.

  • Big R

    Im sure the highway patrol simply showed up to do some beating. Highway patrol officers are recruited by finging people with low intelligence and who have been bullied and want to make themselves feel powerful. Highway patrol officers are more useless than mall security, and 99% are power tripping assholes that couldn’t find a real job. The sad part is tax dollars pay their salary under the guise of making roads safer. All the little boys (as none of the cops are men) should be tried, and even their friends fired.

  • Mojo

    This won’t stop until we the people start beating them and killing them. It’s obvious recording their crime is worthless since they will just delete the evidence anyway. There truly is no need to call the cops anymore. Just have a gun of your own for those times when you actually need the protection. These animals need to be put down. I hope justice finds each and everyone of this pigs.

    • EOW98

      What are you 12?

  • John J. Barrister

    What dumb fucking cops, the fact they destroyed the evidence will lead to an inference at trial that the video, if preserved, would have shown the cops did indeed violently and without provocation beat Mr. Silva to death. Despite being such a burden to the taxpaying public will these cops be cashiered, deprived of any pension, and possibly imprisoned? Probably not.

    • dannyvice

      These officers have a long list of charges they should be arrested on right now. Destruction of property, obstructing a law enforcement officer, illegal search and seizure and destroying evidence to name a just a few

      • EOW98

        And your the attorney with prove for a jury?

  • Garrett Allen

    The latest the trick the cops are using to take your cell phones is claiming they have to be sure it isn’t a deadly weapon. Cops in America have gotten out of hand. When they are afraid for their actions to see the light of day, you know they know they’re criminals.

  • steveo

    I know this probably isn’t going to be popular, but I blame those dumbass witnesses for calling 911. People have to start learning about some real basic rules of police encounters.
    1) Think a long hard time before calling 911. In this case, the leos are already there. Do you think the 911 operators work for some independent organization, no, they work for the leos.
    2) If you’ve got a good ass kicking video like the Rodney King thing, you can probably make some real money on it.
    3) If leos come to your house, don’t just open the door, talk to them through a window or right through the locked door.
    4) Don’t talk to leos, that is what a lawyer is for.
    5) If you are going to be an amateur photographer, learn how to do a few things with your recording device.
    6) Don’t trust the leos for anything, that’s why we record police encounters.

  • Jack D. Ripper

    Phuq the Police.

  • Will

    Nah, more important to go after 16 year old pot heads.

  • dannyvice

    You can tell in his eyes, this man is a good guy. Maybe a little bit of a bad boy, but still a nice guy. And those daughters of his are just absolutely precious. The civil suit that follows any criminal investigation should reap enough money to put every one of those girls through college and get them started in life. Anything less would be a true injustice.

  • EOW98

    So if one of you commenters is accused of a crime it is ok to just assume and say your guilty and make all kinds of smart remarks “before” the truth comes out.

    • Dan Matthews

      You are making perfect sense, but don’t expect the Lemmings to come close to understanding the points you are making.
      Wear your inverted chevrons with pride, for everyone you receive is an indication that another Lemming could care less about the truth/facts that are so obvious to see.

  • EOW98

    OH sorry, I forgot I was on Miller’s anti-government site. Sorry, go about your stupid remarks.

  • EOW98

    Finally, let’s examine the whole article:
    1. A Bunch of cops are all bad
    2. Two California Highway patrolman are also bad
    3. The Coroner is bad
    4. Some detective is bad who got the search warrant (Street Cops don’t go to a judge detectives do)
    5. Some Judge is bad because there is no case for a search warrant on these cell phones.
    Upcoming bad guys!!!
    6. The D.A.’s office is bad if they don’t file charges against the officers, chp, coroner, detective and judge.
    7. The FBI I am sure will be bad too.
    Anyone want to buy a bridge?