The shooting in Darius Kennedy, a man with a knife, may have happened in the most public place on earth, Times Square. It comes as no surprise, therefore, that tourists from everywhere pulled out their cellphones are recorded the incident. One tourist, however, had the misfortune of being noticed by the police.
Julian Miller, 22, who was visiting New York from Boston, said the police confiscated his phone after he recorded video of the confrontation. He said in an interview that he followed the pursuit from Times Square to 37th Street and Seventh Avenue, his phone recording as he ran to keep up. He said a police detective pulled him aside after the shooting and asked to see his phone and the video.
Assuming that Miller, like most people these days, has a cellphone that is both expensive and utilitarian, in the sense that he kinda likes to have it so he can use it at his leisures, the question is raised whether the police have the authority to seize it.
A secondary question relates to the contents of his cellphone, in that it is likely to contain other, personal information and images that are private and which he prefers that no one, particularly the police, can see. While one might surmise that they will only be interested in the video of the shooting, there is nothing to prevent the cops from inspecting all the contents of his phone, whether in searching for the video or just for fun. Should there be images that are either inculpatory, or perhaps just personal, what authority do they have to inspect it?
Before going further, it’s critical to bear in mind (for the non-lawyers) that police have no rights. Rather, they possess authority pursuant to the police power, the general authority to make and enforce laws that regulate behavior for the public health, safety and welfare.
Historically, the police possessed the authority to seize evidence that was either contraband in itself or relevant and material to prove that a crime occurred and the identity of the perpetrator of the crime. This authority related to seizure from the person being arrested for the crime, and there was little question in the law about the authority to do so. However, seizing a cellphone from a wholly unrelated third part, in this case a tourist from Boston, raises an entirely different question.
Just as cellphone videos have become ubiquitous, so too has seizing the cellphones of unrelated third parties. While it may be understandable why the police want the video, and there is little question that the video (or still images) may be relevant to the underlying incident (and is substantively evidentiary), it remains the property of a person who has concededly committed no crime and is otherwise uninvolved in the underlying incident. By what authority can police confiscate the personal property of a law-abiding citizen?
Quick research has revealed nothing dealing directly with the issue of cellphone videos. The only effort at meaningful commentary comes from (you guess it) Carlos Miller at Photography is Not a Crime,
Two attorneys I interviewed in 2009 in the wake of the Oscar Grant incident said that police can only seize your camera if it was used in the commission of a crime, such as child pornography or upskirting.
And more recently, Mickey H. Osterreicher, attorney for the National Press Photographers Association reiterated those statements in a letter to Miami Beach Police Chief Carlos Noriega (bold emphasis mine):
Your officers should be well aware that they may only seize the property of another pursuant to a lawful arrest or by court order. Their alleged actions with regard to the seizure of a WPLG camera from a working photojournalist cannot be tolerated. Video showing another officer pointing his weapon at an unarmed citizen, who was then allegedly pulled from his car, placed face down on the pavement, handcuffed and threatened at gunpoint is an affront to the public. For officers to do so and then smash his cell phone in hopes of destroying any recordings should make them liable for both criminal and departmental prosecution.
However, another attorney I interviewed said officers do have the right to confiscate your camera to preserve evidence.This can only be done in extreme cases such as homicides, rapes or kidnappings, said Michael Pancier, who not only is a nature photographer, but is representing me in my case against 50 State.
Pancier, who Carlos notes is a strong advocate for photographers’ rights, goes on to argue that
The alternative (to confiscating camera) is that they detain you until such time as a subpoena is obtained which could be days.
Evidence has to be preserved. If you photographed a murder scene; that’s evidence; they can’t just let you go and hope that you don’t delete it or alter it. If the evidence is not immediately preserved, it may be challenged and may be inadmissible. Likewise, if the evidence is destroyed or lost because it was not preserved; then a whole case whether for the state or the defense may go down the tubes.
Carlos then asked the money question:
I asked Pancier what is more important, preserving the evidence or preserving the Fourth Amendment and he said preserving the evidence is preserving the Fifth Amendment that entitles a suspect to due process in the legal system.
“When you have a serious crime where somebody can do 25 years to life, then it’s important to gather all the evidence,” he said.
Because that video clip might turn out to be exculpatory evidence, meaning it could prove the defendant’s innocence.
While Pancier’s rationale is certainly logical, it seem to utterly miss the critical issue: By what authority do the police seize the property of an unrelated third party? As a corollary, by what authority do the police seize the person of an unrelated third party, as suggested by Pancier as the alternative, who has committed no crime?
Clearly, his argument that the images may just as well be exculpatory as not, and that exculpatory evidence is something the defense certainly wants to preserve, is true. But good intentions are not a substitute for lawful authority. The Constitution does not permit the police to simply seize property at will from people who have committed no crime because it’s in their interest to do so. Indeed, it prohibits the government from taking property without authority and just compensation.
The police can use court process to obtain evidence and testimony, whether by a subpoena or, where there are reasons to believe a witness will not comply, a material witness warrant. That it doesn’t prevent a witness from destroying the evidence in the interim (whether innocently or intentionally) is certainly true, and clearly a problem for whoever desires the evidence.
But the alternative, that police are empowered to seize at will the personal property of innocent people, unrelated to the commission of any offense, is fundamentally intolerable. No matter how much the police (or the defense) might have wished the videos be preserved, there is no authority for the police to seize property from people who have committed no crime.