An ignorant and overbearing McLennan County Sheriff’s deputy wasted no time in seizing a cell phone camera from a reporter who was recording a shooting investigation in downtown Waco, Texas earlier this week.
“I don’t care who you work with, give me your phone,” the deputy said as he stormed up to the reporter who was standing on the other side of the police perimeter.
The deputy walked the phone back to other deputies where he can be heard being told to return it to her – but only because she is a reporter.
Not only is this another case of law enforcement officers who are cluesess about the laws they’re supposed to enforce, it appears as if the local media is also pretty clueless.
The Waco Herald-Tribune is one of those papers that require you to pay money before you can read the article and I’m not going to bother doing that because I can already tell from the headline that I’m only going to get frustrated.
IT’S NOT A “MURKY ISSUE.”
If the Glik decision didn’t confirm that, the recent guidelines established by the U.S. Department of Justice surely did.
Law enforcement officers have no right to seize your phone without a subpoena unless there are exigent circumstances and that is clearly not the case here.
And it makes no difference as to whether she is a reporter or not.
He should but it really doesn’t matter because he and his deputies are sworn to uphold the Constitution with or without a policy.
And they did not do that in this case.
UPDATE: National Press Photographers Association Attorney Mickey Osterreicher, who is not as cheap as I am, spent the $1.99 for the Waco Herald-Tribune story and sent me a cut-and-paste of it, which brings a little more light to the situation.
I will post seven paragraphs of the story, even though I usually try to limit myself to four paragraphs in order to keep within the fair use law.
But the definition of fair use is much murkier than the law regarding the seizure of cameras, so there is really is no set standard as to how many paragaphs one can use before being guilty of a copyright violation.
According to the Waco Herald-Tribune:
The decision to confiscate the cellphones, which included one belonging to a Tribune-Herald reporter, was based on exigent circumstances as authorities worked to secure potential evidence in the shooting of 20-year-old Victor Jennings, said McLennan County Sheriff’s Office Detective Joseph Scaramucci.
Waco police determined Jennings was shot at an another, unknown location before driving to the courthouse.
McLennan County Sheriff’s Deputy Mike Hutchinson confiscated the smartphone of a reporter standing outside crime scene tape Tuesday morning at the McLennan County Courthouse.
But Scaramucci, who was at the courthouse on another matter and helped secure the scene, said he initially thought the shooting had occurred at the courthouse and that the recordings could contain crucial evidence, allowing for seizure.
Scaramucci told deputies to begin picking up the phones and holding them, he said.
Deputies typically need consent or a search warrant to seize cellphones, but Scaramucci described the situation Tuesday as “preventing evidence from being destroyed.”
Once deputies learned the shooting occurred elsewhere, the phones were returned, Scaramucci said.
Here is what Osterreicher had to say about the situation:
As they explained in the story – yes. I believe that they still would have needed to obtain a subpoena before viewing the video and also issue property receipts but since they believed that there was video of a crime that might be construed as evidence and wished to preserve it they acted accordingly. It also appears that they were able to distinguish between the need to seize video taken by a journalist (and the likelihood that video would not be destroyed or lost) from video shot by passersby. Also once the police learned that “the shooting occurred elsewhere, the phones were returned.”
I do think that the police department would be wise to implement a written policy and train its officers and NPPA would be happy to work with them in that regard as we have done with other agencies.
I also think the paper did a good job in reporting it, although as often happens – the headline is somewhat misleading.
But I’m not really buying the sheriff’s version that they had no choice but to confiscate phones.
Even if they had exigent circumstances, they should have made an attempt to request footage from their phones without outright confiscating them as we saw happened in this case.
Deputy Mike Hutchinson’s exact words were “I don’t care who you work with, give me your phone.”
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.
Hutchinson clearly coerced the reporter into handing over her phone, which is an abuse of his authority. We’ve seen too many instances where cops abuse their authority to even give them an inch in matters like this.
In a perfect world, we would trust cops to do the right thing, but we’re not living in a perfect world and cops are just as likely to confiscate cameras to cover-up their own misdeeds than to preserve evidence.
This is what their guidelines state regarding the seizure of cameras:
A. When there is probable cause to believe that the portable video and/or photo recording device depicts visual and/or audio items pertaining to a criminal act, the device may be seized without consent if exigent circumstances exist.
- The most common type of exigent circumstance is the imminent destruction of evidence. Two requirements must be met for this exigency to exist:
a. Sworn employees must have probable cause to believe destructible evidence exists;
b. Sworn employees must have reason to believe the evidence might be destroyed if they delay taking action until a subpoena/search warrant is issued
The Waco Herald-Tribune article does not give any indication that the citizens recording the investigation gave probable cause that they would delete the footage. Most citizens would be happy to cooperate with cops without being coerced.
The problem is, most citizens are clueless about their rights when it comes to these issues. And even if they know their rights, it is not easy to stand up for them when you have a man with a gun and a badge using his authority to intimidate you.
So I’m not about to give the McLennan County Sheriff’s Office a green light on this incident.
But I don’t believe they were as clueless as I originally thought. Now I believe they were just coersive.