A Florida sheriff’s deputy seized a man’s phone without a warrant after arriving with Department of Children and Families workers to seize a woman’s children, who were also apparently seized without a warrant.
Shortly after they arrived at her Fort Myers home on July 11, the deputy allegedly punched Jasmine Aguilera’s friend, Waldemar Suarez, then spun her around so she wouldn’t witness her children being taken by the state.
According to a Sheriff’s arrest report obtained by Fox4Now , two men at the residence threatened the deputy, so he called for back up and the men were eventually arrested.
The deputy alleged Suarez kicked him in the head, but witnesses say that’s not true.
Aguilera and several other witnesses at the scene claim the deputy is the one that punched first.
During the ordeal, family friend Alex Martinez recorded the ruckus on his cell phone and said deputies continued to assault Suarez even after he was placed in a patrol cruiser.
“The officer, I think it was Torres, was on top of Waldemar in the car and it looked like he was hitting him ‘cause I saw his hand go up,” said Martinez.
Despite not being involved in the argument, deputies forcefully confiscated Martinez’s phone after smacking it out of his hand, which cracked the screen.
“[The deputy] Came up to me, he saw me recording and he smacked the phone out my hand and when I picked my phone up my whole screen was cracked.”
Now, Lee County Detective Breton refuses to return his phone.
And Martinez wants to know why.
During an in-person interview with Fox4Now, Martinez rang the detective and placed her on speaker phone as the news station video-recorded the conversation.
Fort Myers Detective Breton replied:
“We can take your phone as evidence. The video is evidence that a felony took place (allegedly Battery on a Law Enforcement Officer). In order to get your phone back I’m going to have to serve a search warrant on it, or if you give me consent you’ll have to meet me and you’ll have to sign a piece of paper just for me to get that video and so you can get your phone back.”
Martinez argued, “It’s my right to record what’s going on and I had nothing to do with it.”
In a telephone interview with Photography is Not a Crime Sunday, Mickey Osterreicher, general counsel for the National Press Photographers Association, explained that police need to use a three-prong determination before seizing a camera.
- Police need to have probable cause that a serious crime was committed.
- Police need to have a good faith belief that the camera contains evidence of that crime.
- Police need to have a good faith belief that if they don’t seize that camera, the evidence may be lost or destroyed.
Osterreicher referred to the photo policy drafted by the Miami Beach Police Department in 2011 with the assistance of the NPPA as the proper way to obtain a camera that is believed to contain evidence.
For starters, cops are advised not to knock a camera out of a man’s hands while he is recording if they want to obtain it for evidence.
They are also advised to call a supervisor before making a determination whether to seize the phone or not.
In 2012, the United States Department of Justice drafted its own set of guidelines which stated that police can only seize a camera under “exigent circumstances,” which would mean they need to have good faith that the evidence will be destroyed if they don’t seize it at that precise moment.
But considering the video may contain evidence of police abuse, there is now the risk that the footage will be destroyed since it is in the hands of deputies.
The Lee County Sheriff’s public information officer promised to send PINAC a copy of the arrest report, but never followed through.
A spokesman and supervisor who would only give his first name as David at the Department of Children and Families said he didn’t know what the Fourth Amendment was, and doesn’t need a warrant from a judge to seize children.
Readers can call the Lee County Sheriff’s office at 239-477-1000 to request detective Breton return Martinez’s phone.
And the Fort Myers Department of Children and Families at 239-895-0283 to inquire why their employees don’t obtain a warrant before seizing children as it’s outlined in the Fourth Amendment.