They call themselves the “Troubleshooters” and their motto is, “asking the tough questions and solving problems.”
But this team of NBC Connecticut reporters has proven to be clueless about the law when it comes to citizens recording police in public.
Specifically when it comes to whether or not police have the right to confiscate a citizen’s camera as evidence.
The law states police can only do confiscate cameras as evidence under exigent circumstances, meaning they need to have a strong suspicion that the citizen plans to destroy the footage.
And even then, they have to make a sincere effort in asking the citizen to voluntarily provide them with that footage.
And they can only do this to obtain evidence of a felony crime.
But here we have a case where cops in Connecticut confiscated a man’s camera after he recording them issuing his friend a ticket for loitering outside a bar in Middletown.
Loitering hardly constitutes a felony. In fact, it is questionable that standing outside a bar where a multitude of others are standing can be classified as loitering.
But I’m not going to pretend I’m versed in Middletown’s petty municipal ordinances.
There were so many others milling about that another bystander video recorded Middletown Police Sergeant Sebastian Bartolotta confiscating Raymond Hassenfeldt’s camera last month.
Bartolotta justified this act by saying he needed it as evidence that Hassenfeldt’s friend, John Salafia, had been loitering outside the Hair of the Dog Saloon on Main Street.
Loitering on Main Street sounds more like a rock album than a criminal act.
The real criminal act was Bartolotta’s illegal seizure of Hassenfeldt’s camera.
But this team of reporters failed to hold the cops accountable.
The law generally allows citizens to record police officers performing their public duty. But officers can confiscate that footage as evidence, and that’s what Sgt. Bartolotta told Hassenfeldt he was doing.
Department records back up his claim.
But the law doesn’t back up his claim.
The Troubleshooters did a decent job on talking to other sources for their article, including Middletown Mayor Daniel Drew, who supported police in confiscating the camera, stating the following:
“I was briefed by the Chief of Police and the command staff, and after watching the video myself, we’re confident they handled it the right way,” said Drew.
They also spoke with Sandra Staub of the ACLU, who stated the following:
“I’d say, if in that situation there were other options that would allow the recording to continue and the evidence to be collected without going so far as to stop the recording in the middle of it, then it sounds like there’s a problem there,” said Staub.
And they also spoke with Connecticut Senator Martin Looney who has twice proposed bills that would allow citizens to sue if their rights to record police are violated.
“A loitering ticket is the sort of thing that generally the crime, the offense is so miniscule that you would not normally be confiscating items. It looks to me like a dodge to try to justify what was arguably an improper act,” said State Senator Martin Looney.
But they failed to address the most important element of this entire incident; that this is not a matter of opinion but a matter of fact that happens to be inscribed in law.
In typical mainstream media fashion, they attempted to come across as “objective” in allowing these authority figures to conjure lies, which only confuses the casual reader as to what police can and cannot do when it comes to seizing cameras.
Perhaps the Troubleshooters should give it a glance.
E. Policies should describe when it is permissible to seize recordings and recording devices.
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.