Police in Massachusetts tased and arrested a man last week before turning on a witness who had recorded the incident, confiscating his phone.
The North Adams Police Department claimed they had the right to confiscate the phone because the witness was “not cooperative,” meaning he didn’t want to hand it over voluntarily.
But they also believe they can tase a man for making “challenging statements.”
The cops also used the old “spit in my face” accusation, a felony that is almost impossible to disprove.
Unless, of course, the incident was caught on camera, which explains why they needed to confiscate the witness’s camera, even though the law states they need to have “exigent circumstances,” meaning that they have a strong belief the witness is going to destroy the evidence.
But knowing Massachusetts, we can pretty much assume that cops will be the ones trying to destroy the evidence.
Allan R. Benoit, 31, of Brayton Hill Terrace, was allegedly threatening a group of at least 20 children under the age of 14 at his apartment unit about 6:30 p.m. Wednesday when police were called to the scene, according to a report filed by Officer Jason Wood.
Benoit allegedly began swearing at police and approached Wood with clenched fists in an “assaultive manner.” Wood then created distance between him and Benoit as he “knew an attack was imminent” and engaged his Taser, according to the report.
Benoit was advised several times to back away before he took a few steps back, the report continues, and then advised three times to fall on his knees.
The report states Benoit continued to exhibit assaultive behavior “by noncompliance, body language and challenging statements.” Wood then deployed the Taser into Benoit’s chest and stomach area.
Benoit continued to be noncompliant during his arrest, allegedly swearing at police and threatening to assault Wood when he was off-duty. While Wood was moving him into the cruiser, Benoit allegedly spit into his face and mouth, the report said.
Police seized a bystander’s cellphone, which they believe captured video of the entire incident.
“Unfortunately the gentleman who had the phone was not cooperative,” said North Adams Police Director Michael Cozzaglio. “There are provisions in the law that allow officers to seize that phone.”
Police must first write a search warrant on the phone before it can be forensically examined, Cozzaglio said.
A separate cellphone video, which shows a police officer taking down a suspect, purportedly Benoit, with a Taser, drew many comments from Facebook users after being posted last week.
“I’m very concerned by what I saw in the cellphone video,” Joanna Arkema, the Pittsfield attorney representing Benoit, said when asked for comment on Monday.
Benoit pleaded not guilty in Northern Berkshire District Court on Friday to charges of disorderly conduct, resisting arrest, assault and battery on a police officer, and disturbing the peace.
The reporter did not bother posting the Facebook video he mentions in the article.
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.