When Your Cellphone Becomes Their Evidence

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.

46 comments on “When Your Cellphone Becomes Their Evidence

  1. John Neff

    I have no idea if this is true in NY but the phone has to be in custody to prevent someone altering the images in the UK.

    I think the police should promptly provide a replacement phone.

  2. SHG

    “We” wonder too. I’m unaware of any caselaw on the issue, and it’s one of those things that often eludes an answer because it costs less to buy a new cellphone than pay a lawyer to get the old one back, but if there is anything on point, I would very much like to know.

  3. SHG

    Remember that the UK is an entirely different system than the US. As for replacement phones (even assuming they’re the exact same phone as the one seized), it still doesn’t address all the significant issues.

  4. Nigel Declan

    Would there be some sort of legal middle ground, such that the police would be entitled to seize the property for a period of time, but that access to any other information in the phone, should it implicate the phone’s owner, would be excluded from any proceedings as material subject to a reasonable right to privacy (or, perhaps, that police exceeded authorized computer access), to the effect that it would be inadmissible in criminal proceedings (or that access/dissemination of personal information might constitute an actionable wrong)? I know it will be cold comfort to those whose privacy might be violated where there is no threat of criminal proceedings based thereupon, but it strikes me as the sort of balance that some courts might maintain in order to try and preserve the interests of both parties (without, of course, making anybody happy).

  5. SHG

    I suspect that if and when a court addresses the issue, it will try its best to find some sort of “balance” between the competing needs.  It seems to me that you’re the innocent third party whose property is unceremoniously seized, there is no “compromise” where you don’t get burned. Why should an innocent third party be expected to suffer any deprivation?

  6. Nigel Declan

    I don’t think that the third party should be expected to suffer any deprivation, but I suspect that many courts won’t see it as a deprivation – rather, it will be the fulfillment of one’s “civic duty” to help the police to put the bad guys in jail (or, the courts might rationalize, to keep the good guys out of jail, should cell phone video prove exculpatory and the police/prosecutors decide the material Brady-worthy). Besides, nobody forced these “innocent” third parties to film what might be (or not be) a crime and mere civilians can’t be expected to preserve/protect the chain of evidence, can they [sarcasm engines engaged]?

  7. SHG

    I suspect many judges will agree, but there is no “civic duty” on the part of citizens to either give up their personal property or help police put the bad guys in jail (or keep the good guys out).  While I can easily imagine judges holding otherwise, it would be a very bad day if a court imposes such a duty on innocent third parties.

  8. Lurker

    Innocent individuals have a number of duties that relate to the judicial process. One is the duty to become a witness if summoned. In many cases, this is a much more onerous duty than the burden resulting from the seizure of one’s telephone.

    In fact, I believe that the telephone could be subpoenaed by the parties to the criminal suit anyhow, as it is obviously a document including information important to the case.

    However, in a well-governed country, the legislature should enact clear statute law, providing for:
    * the process whereby such seizure of a data device is warranted. The decision for seizure should be made by a senior police officer, not by a beat cop.
    * if “exigent circumstances” (with a good definition) require a policeman to seize a device, there should be a requirement for a senior police officer or the court to confirm this decision within a reasonably short time
    * there should be a clear process for filing a motion to court to oppose the seizure

    In my opinion, the best authority for making the decision to seize something should be a senior police officer. If this is given to courts, it’s just another warrant that’s issued as a matter of course without thought or even reading. A police officer is closer to the case and if there is a possibility to take the matter to the court after the fact, there is a greater likelihood that the court will be even considering the issue, while it will never void its own warrant.

    Personally, I would prefer a clear statute law requirement: “The seizure of a document must be replaced by copying the document if this is sufficient for the credibility of proof. The copying shall take place without undue delay after the seizure. After copying, the document shall be returned to the person from whom it was seized.” (The Finnish Forcible Measures Act, § 7:2.1-2, 806/2011) However, this is a bit tricky. Can you trust the police to copy the document honestly?

  9. Zachary

    It seems to me that this is the sort of issue that the ‘cannot sieze property without paying for it’ thing was made for. It should be made a part of Eminent Domain law, the police pay the market value of the phone (or any other relevant 3rd party’s device) to the person, and everyone’s happy; the constitutional and legal requirements would be fulfilled, the evidence preserved, and the person could just go out and get another phone. It would inconvenience him in having to replace his apps/contacts, true, but I think it would be a fair solution for everyone involved.

    I think it’s important to remember that police (to my knowledge) only know what they’ve been told about the law; if they go mildly over the edge, it is out of ignorance, not malice; and that much can be excused out of their own fear for their safety (Obviously not everything, and there obviously are many, many cases where they clearly go too far).

    The police on the street didn’t want to deprive the guy of a phone; they just wanted the chance to see justice done. If you want to paint someone with a negative brush, focus it on the people who set the guidelines and are supposed know the laws and tell the policemen how not to break them in the process of enforcing them- rather than blaming “police” as a whole.

  10. SHG

    Compensation isn’t good enough. What about his content that’s lost? What about his privacy that’s lost? What about his loss of use until he receives that compensation and gets a new phone? The inconvenience might fine with you, but that doesn’t make it fine with someone else, and they aren’t constrained by what you think is fair. They get to decide fair for themselves.  So no, I don’t agree that compensation is sufficient to make everybody happy.

    And sometimes, the police do indeed take the phone for the purpose of depriving someone of their phone, or more particularly, a video of police engaged in abuse or misconduct.

  11. Nigel Declan

    But how does this prevent the police from looking at the entire contents of the phone and copying them, under the guise of “ensuring the integrity of the video” or something to that effect, and then potentially using that information in proceedings against the phone’s owner or others?

  12. Alex Stalker

    I practice criminal law in Washington State, not New York.

    In my experience, police will generally ask permission to take something as evidence if it belongs to a third party. If the third party does not acquiesce, then the officer will get a warrant from a judge to seize it.

    A subpoena is much slower and runs a significant risk of destruction of the evidence, especially if said evidence is digital.

  13. Fill

    Can they ask politely, and then arrest you for obstruction if you decline (and the situation warrants)?

  14. Zachary

    It would be legally and constitutionally sufficient, however, which is the issue that you are proposing here (“By what authority can police confiscate the personal property of a law-abiding citizen?”, “there is no authority for the police to seize property from people who have committed no crime”). You were questioning their power to do so; this provides a route to give them the power to do so within the satisfaction of existing law.

    It might not make you happy, but it’s a solution that satisfies the extant constitutional issues and satisfies the legal requirements.

    Again: it seems to me moreso that you just hate the police rather than being legitimately interested in the constitutional issues. I don’t think I’ve ever seen you post anything positive about the police; you never applaud when they do a job well, and you give an inordinate amount of weight to whoever and whatever they’re opposing, simply because they’re opposing it.

    People get to decide “fair” for themselves; but the government isn’t required to, and shouldn’t be required to, satisfy everyone else’s sense of “fairness”; it is required to satisfy the law and the constitution.

    He wouldn’t lose much in the way of privacy; so long as a proviso existed that stated that nothing found on the phone unrelated to the case could be retained or used against him or anyone unrelated to the trial it was siezed for.

    Abuses do and would occur- but those can be litigated in the usual fashion as other police abuses. If there is a problem, it would not be with phones specifically, but the overall process of litigating police abuses, which is supposed to be able to handle all cases of police misconduct.

  15. SHG

    Compensation for a taking would require a civil action before the court to establish the authority to take and what constitutes just compensation. So no, it would not be legally and constitutionally sufficient for police to just do it on their own and hand over cash for the price of the phone.

    You just can’t make stuff up and decide for yourself that’s lawful. It’s not that easy.

    As for the cop hating stuff, since you’ve decided that’s what I am, why keep harping on it? Regular readers know better and it makes no difference to me what you’ve decided.

  16. Zachary

    Sorry- I didn’t read your reply to me on the other article before I posted this one. Consider the “Again” paragraph stricken from the whole thing.

  17. Zachary

    And what I had meant was, that if they passed a law making it so, it would be a constitutonal law… and it would satisfy most of the requirements and the problems of the situations. It would leave some holes, but it would be better than leaving it as it is right now, and it would be better (At least in my opinion) than permitting the evidence to become inadmissible and potentially getting an innocent man jailed or imprisoned, or letting a guilty one go free.

    Again: I hadn’t read your reply to me on the other article, so I apologize for including that in this.

  18. Zachary

    They wouldn’t be able to do it themselves, obviously; but I was thinking they could keep the phone, give the person an IOU, and then the normal process could take place for eminent domain; not that the cops themselves would make a cash payment, but that they would temporarily detain the phone, give the person a notice that he was due to be paid, and then follow the normal process.

  19. Peter Duveen

    The video itself is of value, and is potentially a copyrighted work. A citizen has the right to collect and disseminate information to educate himself and his fellow citizens. By seizing the cell phone, the police have interfered with this process, this right, this responsibility. It is certainly not merely a matter of losing a cell phone, even legally and constitutionally. I see no reason to give the police the benefit of the doubt, particularly when the confiscation of the cell phone is not an act to prevent an imminent threat, but also because such seizure may be done for the purposes, as mentioned above, of concealing possible misconduct, or even embarrassing behavior, on the part of the police. Vigilance on the part of the citizenry is what may indeed be keeping police as honest as they are. Ask Frank Serpico.

    More to the point, why cannot police be trained to take down a person with a knife, without killing them. Are they so ill-trained that they cannot disarm a knife wielder without having to dispatch him or her in a hail of bullets?

  20. Lurker

    That’s how we roll in Finland. Most “forcible measures” are used without a court warrant. A few examples:
    * arrest warrant up to three days: any police lieutenant or an equivalent or higher LEO (after that, a court decision and a timeline for prosecutor to bring up final charges are required)
    * search of a home, office or a vehicle: any LEO who can sign an arrest warrant can also sign a search warrant
    * seizure (including seizure of a letter in mail): any LEO who can sign an arrest warrant
    * prohibition to leave the municipality for up to 60 days: any LEO who can sign an arrest warrant
    * search of a person: any LEO who can sign an arrest warrant can order
    * GPS tracking of a person for up to 24 hours: any LEO who can sign an arrest warrant
    * undercover activity: the Chief of the National Bureau of Investigation or the Chief of the Finnish Security Intelligence Service
    * buying contraband in disguise: the Chief of the National Bureau of Investigation or the Chief of the Finnish Security
    * use of informants: the Chief of the National Bureau of Investigation or the Chief of the Finnish Security, chief of local police department or a specially trained LEO who can sign an arrest warrant and has an order for such activities

    Only wiretapping and monitoring an apartment require a court warrant, as well as any above-mentioned activities that exceed the given duration.

    It’s not a bad system. The police lieutenants are desk officers, not beat cops. And they get much fewer requests for warrants per capita than a judge would, and personally know the case, so they are probably more careful in signing the warrants than your typical garden-variety US judge.

  21. John Beaty

    It is possible to train someone to dis-arm a knife wielder. It is not possible to train someone to be willing to risk serious injury to self or others in the process.
    It’s not actually very easy to disarm someone (I’ve been trained, and I’ve done it. No, you can’t see the scars.)

  22. SHG

    This is one of those no-win subjects, where people tend to argue for shooting to wound or disarming, and they never like the response.  On the other hand, this would have been a perfect taser opportunity. In the alternative, keeping distance and waiting him out is another possibility, but that requires patience and a concern as to whether he lives or dies.

  23. Burgers Allday

    MARTIN v. LOTT (S.C. 2-9-2010) (Third, Mrs. Martin needs to show a causal relationship between her photography and the Deputies’ conduct. Based on the facts as the court must view them, the Deputies arrested Mrs. Martin while she was photographing an arrest, and without probable cause. The facts suggest that a reasonable jury could conclude that the Deputies may have arrested her in reaction to her photography. Because the Deputies lacked probable cause to arrest her, and because seized her camera and deleted pictures of the arrest off of it, a reasonable jury could find for Mrs. Martin based on her version of the facts. Based on the foregoing, Mrs. Martin states a colorable First Amendment claim [under section 1983])

  24. SHG

    Different issue, because they arrested her and didn’t just seize her camera as evidence in someone else’s crime.

  25. Burgers allday

    KEDRA v. CITY OF PHILADELPHIA, (E.D.Pa. 1978) (The second set of allegations is that charging [the police-officer-defendnts] with attempted confiscation of Joseph Kedra’s camera and note pad. Although under the Taking Clause confiscation is a matter of constitutional significance, I am aware of no case imposing civil rights liability for attempted confiscation. The complaint asserts a state law claim for trespass to personal property, and these allegations are relevant to that claim; but I do not believe they are intended to assert a separate right of action under § 1983.)

  26. BL1Y

    I’m not a brilliant criminal procedure or constitutional law scholar, but it seems worth pointing out that the evidence isn’t the phone. It’s an electronic file on the phone. A file that can be easily duplicated. It could be e-mailed to the police right away, or the phone could be plugged in to a computer via USB, and the file copied that way. No more burdensome than saying to the witness “We need you to wait here, an officer will be along in a minute to take your statement.” I think most people would voluntarily comply, especially if the incident was serious, like a shooting.

    If you need to compel a witness to turn over the video immediately in order to preserve evidence, seems like you’d just hook the phone up to the laptop and copy the file, with either the witness or the police in physical control of the devices, and in either event with both the police and witness present for the transfer. The phone is then returned to the witness.

  27. SHG

    I stopped reading after “I’m not a brilliant criminal procedure or constitutional law scholar…”

    If (as if the police could or would actually do this), it eliminates some problems (such as deprivation of the use of the phone and inspection of private inforation) but not all. If people voluntarily comply, then it’s no problem. If people refuse and the cops take it anyway, that’s a problem. But the mechanics do eliminate many of the problems that would trouble most people. Maybe you’re smarter than you think?

  28. Pete

    The seizure of phones from an unrelated third party for use as evidence of a crime is definitely a nasty piece of work constitutionally, and there has been some great commentary on this point. However, Darius Kennedy will never be charged with a crime or go to trial because he’s (excuse the caps) DEAD.

    This fact makes the seizure of the phone much more egregious from my lay perspective. The only possible use of the seized film would be to defend the involved officers on the off chance that one of them will be charged for a crime (or later sued) for shooting of Kennedy. That being the case, could it even possibly be kosher for an officer to use his police powers to provide for his own defense or fellow officer’s legal defense? This screams of conflict of interest. And how does the fact that no officer involved in the shooting was arrested play into this? If the officer’s weren’t detained/charged, then how can the phone be seized as evidence for the defense. Are we going to allow the police to seize property proactively in case there are charges or suits filed later? If so, then I can imagine phones being seized any time an officer is ever filmed crossing the street, to defend himself from potential jaywalking charges.

    “access to any other information in the phone, should it implicate the phone’s owner, would be excluded from any proceedings as material subject to a reasonable right to privacy (or, perhaps, that police exceeded authorized computer access), to the effect that it would be inadmissible in criminal proceedings”

    Even if data from someone’s phone is not admissible in court, it could still provide the police with valuable data that could lead to the start of an investigation that would never have occurred otherwise. Phone number of a known drug dealer on the phone might lead to surveillance of the phone’s owner, etc.

  29. ndTsoc simple

    Well, the issue is not as clean as we might like. I do find it instructive that the court did not say: (i) the false arrest potentilly violated the First Amendment; but (ii) the seizure of the camera did not violate the First Amendment.

    This is how a Plaintiffs’ atty would use this case in court when a cleaner case comes up (as it surely will).

  30. FritzMuffknuckle

    Understatement of the day: “It’s not a bad system.” You have one of the best police forces in the world. When it comes to the number of reported abuse or misconduct by police cases, Finland is near the very bottom of the list. You guys are textbook on how to maintain an excellent police force.

    I’ve never been to Finland so I am totally unqualified to speak from experience, but I think I can make a few assumptions on why your system is able to effectively invest such powers to the police.

    Educational standards: Your system chooses the candidates with the best educational and intelligence scores, applying rigorous training along with a continued formal education throughout their careers. Your standards for handling evidence, use of force rules, investigation management and pretty much all police work are extremely high. Here in the US we have a different type of intelligence requirement for police. Google “Police Reject Candidate for Being Too Intelligent.” As a rule, US police are hired with minimal formal education.

    Checks and balances: For example, Finnish cops rarely operate alone, there’s always a second one around. Though city cops here ride with partners, most other police drive alone.

    Transparency: You have it, we don’t. There are swaths of land larger than Finland where police refuse to hand over video, reports, statements or other investigation materials even after a case is completed. This has been getting better since technology, the web and mass media has brought attention to it, but it has a long way to go.

    Unfortunately, implementing your system in the US today without the standards mentioned above would have the same kind of results as Russia’s historic application of communism. Bad behavior by cops in the US is an indicator of a fraternal police system that condones or encourages it through a system called the ‘blue line’ that punishes any officer that exposes others or defies them. There is no senior officer within the police force immune to it. This is why we don’t allow police to make judgements without the courts.

  31. SHG

    He always pisses me off for that reason. The Finnish system with American cop culture would be a nightmare. It’s like he’s just rubbing our noses in it.

  32. Onlooker

    Ugh. I don’t know how this plays out there in Finland, but the phrase, “police state” comes to mind.

    What could go wrong?

  33. Matt B.

    Actually, in Florida, our “obstructing an officer” statute includes criminal penalties for refusing to assist the police in an emergency or if ordered to stop a fleeing or escaped criminal. I’m not sure how often it’s used in that way. (It’s mostly used as the contempt of cop statute as far as I can tell). I’m pretty sure I’ve read about a similar common law principle, but IANAL.

    I love how our local police have dash cams on their cruisers which are always recording. The don’t actually store the recordings by default though; video is automatically deleted from the camera over 30 minutes. They have to push a button to STOP the deletion, that way storing video from 30 minutes before the time they push the button onward until they stop it. Obviously set up that way so they don’t have to provide potentially exculpatory evidence.

  34. Jaded

    Yes, exactly. Shooting to wound is such a red herring, but almost all of these kinds of cases could benefit from simply guarding the person and *waiting*. Gidone Busch? Check. Patrick Dorismund? Check. Shooting is generally the least wise option except in those rare circumstances where the person has a weapon that can cause harm to cops keeping their distance, or the situation won’t allow for containment. I wish they taught *don’t tamper unnecessarily* and *wait it out* at the Police Academy.

  35. Konrad

    Hello, I’m your host Alex Trebeck and the category is Exceptions that Prove the Rule.

    For $100, the Posse Comitatus Act prevents the use of the military as *this*.

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