Can Police Sieze a Camera as "Evidence"?

[Stud Daddy]

Originally Posted by ShysterJon

Well, Stud Daddy, what we're talking about here is different from the case of a citizen filming the cops at work. We're talking about a citizen filming the commission of a crime.

Jon that isn't what the initial post is about. Though the Cops manhandling you and taking your camera is a crime and related to this issue.

Like you say you can be right but you'll still have to take the ride etc.
The Cops often break the laws and deny Citizens their civil rights. Now getting that case before a Judge and winning it is another matter. The DA could just choose to dismiss the charges against you and return said camera but that leaves a bitter taste in the mouth and then the only legal recourse is a costly civil suit paid for (at least upfront) by you the victim providing you can find a lawyer willing to take the case. (hopefully on spec).

I have followed many of these types of Illegal Police activity cases (Ithaca NY Cops have been sued multiple times for civil rights violations and they keep breaking the law and court orders again and again.) and the courts are usually sympathetic to civil rights and rule against the overzealous and often under-educated cops with regularity.

I am very familiar with a national case based on the same circumstances in Rochester NY where the cops again got spanked by a little radical, activist gal.

Regards and as always thanks for your insights and help here.

[ShysterJon]

Originally Posted by Stud Daddy

Jon that isn't what the initial post is about.

* * *

Regards and as always thanks for your insights and help here.

Flattery will get you nowhere with me. Haha.

Although the OP's initial post isn't a paradigm of clarity, it's about the police seizing a video camera without a warrant because it possibly recorded a crime. Moreover, the post is about BOTH the police seizing a video camera because the camera possibly recorded the commission of a crime by a third party (that is, not the police) or the police:

Originally Posted by Waldo P. Emerson-Jones

If someone takes video of police interacting with another, can the officer lawfully take the first person's camera as "evidence" without his consent? Assume the video arguably records a crime being committed (e.g., resisting arrest, assault, false arrest, etc.), the possessor of the camera is not charged or suspected of committing any crime, there's no warrant for the camera, and this takes place in Texas.

If the crime possibly being committed is resisting arrest or assault, it's unlikely a cop is committing the crime. There's no crime called 'false arrest' in the Texas Penal Code, but the offense of 'official oppression' (section 39.03) includes a cop who "intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful." The offense is a Class A misdemeanor, punishable by up to one year in county jail and a $4,000 fine, or both. I would think it would be hard to prove the offense because the State must prove that the defendant knew his or her conduct was unlawful -- that is, it's a subjective test, not an objective test. See Texas Penal Code § 39.03.

However, the post is NOT about the police just "recording ... Public Officials at work and during the performance of their duties," as you wrote in your first post, Stud Daddy.

I think the critical distinction here is between the police seizing a video camera that possibly recorded a crime (by whomever) as possible evidence versus seizing a camera because a cop was annoyed being recorded or believed recording cops is illegal. I've had cases where the police seized an item from a witness as evidence and the witness sought its return. The cops make getting such an item back extremely difficult. They argue they need to keep the item until the case runs its course, including a possible appeal. Good luck to a witness who sues the police, arguing the seizure was 'theft.' By contrast, I've had many cases where the police seized items (owned by defendants and third-parties) that couldn't reasonably have been considered evidence of a crime. The police tend to eventually release those items, but not always. It depends on how nicely you ask.

[Boltfan]

Just make sure you upload that video quickly upon realizing you may lose your camera phone hehe.

[LordBeaverbrook]

Originally Posted by ShysterJon

Flattery will get you nowhere with me. Haha.

Although the OP's initial post isn't a paradigm of clarity, it's about the police seizing a video camera without a warrant because it possibly recorded a crime. Moreover, the post is about BOTH the police seizing a video camera because the camera possibly recorded the commission of a crime by a third party (that is, not the police) or the police:

If the crime possibly being committed is resisting arrest or assault, it's unlikely a cop is committing the crime. There's no crime called 'false arrest' in the Texas Penal Code, but the offense of 'official oppression' (section 39.03) includes a cop who "intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful." The offense is a Class A misdemeanor, punishable by up to one year in county jail and a $4,000 fine, or both. I would think it would be hard to prove the offense because the State must prove that the defendant knew his or her conduct was unlawful -- that is, it's a subjective test, not an objective test. See Texas Penal Code § 39.03.

However, the post is NOT about the police just "recording ... Public Officials at work and during the performance of their duties," as you wrote in your first post, Stud Daddy.

I think the critical distinction here is between the police seizing a video camera that possibly recorded a crime (by whomever) as possible evidence versus seizing a camera because a cop was annoyed being recorded or believed recording cops is illegal. I've had cases where the police seized an item from a witness as evidence and the witness sought its return. The cops make getting such an item back extremely difficult. They argue they need to keep the item until the case runs its course, including a possible appeal. Good luck to a witness who sues the police, arguing the seizure was 'theft.' By contrast, I've had many cases where the police seized items (owned by defendants and third-parties) that couldn't reasonably have been considered evidence of a crime. The police tend to eventually release those items, but not always. It depends on how nicely you ask.

Well, IANAL, but I have worked in areas heavily patrolled by LE and been threatened and abused by police often enough (though not had a camera taken) to have some OTJ "training".

The way I read the OP is that the police used the pretext of the camera having "possible" evidence by having recorded a criminal act to seize the camera because they were annoyed at being filmed. GotYour6 is right, they can "do anything they want" as long as they can cover it up later or get compatriots to help cover or prosecutors to ignore their actions. Even if the original arrest is bogus, this pretext is enough for the LEO to potentially seize the camera and erase any evidence of the original arrest not being valid if the LEO is thinking quickly enough to realize there may be evidence incriminating him/her.

In the case above, the situation has to get to an ethical superior, prosecutor or a court unless you have been lucky enough to slip the memory card out or upload the pics/videos so you have a copy. There are some cases where LE has not covered its tracks well enough and courts have then slapped them down, but I venture to guess that there are many more where they succeeded in destroying evidence and charging the person recording or filming with some "contempt of cop" type of charge (even though it isn't in the Texas Penal Code). In those cases they probably had a friendly prosecutor negotiate the problem away by dismissing tenuous charges for the person recording not pursuing the police misconduct. Just my opinion, but I have been threatened by LE many times more than once when I was cooperating in investigating a crime (never again) that I was not involved in or even as a victim (police Sergeant simply assaulted me and threatened no police protection which probably meant telling known criminals to target me while police ignored or laughed nearby).

Even though "contempt of cop" is not a real charge (in the Texas Penal Code), many police seem to take it very seriously (and are very inventive in finding applicable charges to use) and often have quite a lot of support from their superiors, prosecutors and even courts and judges sometimes (though less often). Just my opinion, but I've seen it plenty.

Cautionary tale: It was a long long time ago (80s) but a friend of mine and I helped another friend (who worked as a bar back in the club but was off that night) out to his car after he got too drunk in a club where my friend was working as a bartender and I was working as a freelance photographer. It was after hours and a group of officers came walking close by and ordered us to drop our friend or go to jail. We did so, they cuffed him behind his back with zip ties and when the paddy wagon showed up we witnessed them tossing him in the back of the van face first (with hands tied behind his back). I didn't take pictures. We went to meet him when he was released the next morning and he was bruised and said the roughed him up more all the way to jail and in booking. I took pictures, developed them and we wrote down statements that day and gave it to our friend's attorney. Our friend filed suit, but started to get anonymous death threats. Eventually, when they started calling his mother in another city and suggesting she make funeral arrangements, our friend dropped the suit and moved out of town.

Point being, even if the law AND evidence is on your side there are many pitfalls if and when you get entangled with LE that enforces the law and often seems to think that it doesn't or shouldn't apply to them. BTW, I'm an old well educated upper-middle class white guy not someone who normally sees this side of LE (lucky me). I have also called in commendations for officers and had them go far out of their way to help me. It seems not to follow any rhyme or reason and to mainly depend on the venue, the officer and their mood at the time.

[Waldo P. Emerson-Jones]

Thanks to all who have replied, especially those giving legal analysis. I feel like I have a much better understanding of the law now. Sometime after I posted this originally, I ran across this DOJ paper on the issue, http://assets.sbnation.com/assets/11...ltimore_PD.pdf, which gives some more detailed legal analysis and is pretty consistent with the legal opinions expressed by Karl and SJ.

I'm not planning to video the police whenever I encounter them, but I might video some police encounter with a suspect or if I thought the police were abusing someone. If that happened, I wanted to know what legal ground I stood on if police demanded I hand over my video as evidence for some crime (whether their own or anyone else). Based on what I know now, I think it pretty unlikely the police would actually have the legal authority to take my camera because I doubt exigent circumstance would exist, especially if I volunteered my identity and to preserve the video. But, as SJ notes, exigent circumstances is a pretty fuzzy legal concept and there's no guarantee a judge is going to see it the same way I do.

Also, as Karl notes, there's the law school exam answer to a question and there's the real world. I've perused some police message boards, and the general opinions there seems to be that cops can seize a camera as evidence whenever they feel like it. Some even suggest doing this as a pretext to discourage citizens from filming them. Those opinions I've seen are completely ignorant of the legal analysis, so I would not expect cops to understand the finer points of the law on seizing cameras as evidence.

So, with all that in mind and the fact that I'd prefer not get arrested, I think I'd do the following if I ever found myself in this situation. First, I'd do my best to avoid giving the officer any excuse to arrest me for disorderly conduct or interference by staying out of the way and not yelling or cursing. Second, I'd ask someone else to video the officer demanding I turn over my camera to him. Third, I'd identify myself, promise to preserve the video, and tell the officer I'd be happy to comply with any warrant for my camera (this would bolster a case that there's no exigent circumstances) but until them taking my camera would be a violation of my rights and that I do not voluntarily consent to handing over my property, But, fifth, if the officer says he's ordering me to hand over the camera and insists, then I'm obeying because the exigent circumstance exception is just too gray a concept and I'll likely get arrested if I refuse.

If anyone is curious, here's the original item I read that got me wondering about this issue. http://photographyisnotacrime.com/20...ras-witnesses/. And, while I was thinking about scenarios with evidence of a bad cop (for example if there were evidence that the cops in the article used excessive force), I was also asking about situations where the video might be evidence of someone else's crime because it's often the case that whenever there's video of a cop using excessive force, the cop probably has an argument that the video is evidence of the suspect resisting or evading arrest or assaulting the cop. So, my legal question was not just limited to evidence of police misbehavior.