Video Evidence:  An Officer’s Right to Seize It;
A Person’s Right to Record It

Robert C. Phillips
DDA (Ret.)
March, 2020

The Question:

I am periodically asked whether officers can legally seize from private citizens videotape or other photographic evidence depicting criminal acts.  Such videos or photos may be contained in a private citizen’s still camera, video camera, cellphone, or iPad.  The video or photographic evidence typically is recorded by an uninvolved private citizen (although it may be the suspect himself) who either happened upon the scene of some incident or is a participant in a public protest or demonstration.  The video or photo may be of a criminal act in progress or of an officer’s use of force upon a suspect, or both. 

The question I get is: “Can I legally seize such photographic, video, or tape-recorded evidence, even if the person objects?”  My answer to this question has for a long time been:  “I haven’t the faintest idea.”  But now we finally got a case on point that describes what we can legally do in such a circumstance, and what is necessary in the way of evidence supporting the need to do so.

New Case: 

In a trial for reckless driving, the Fourth District Court of Appeal (Div. 1; San Diego) held that the Fourth Amendment does not require suppression of evidence obtained from defendant’s dashboard camera (i.e., “dash-cam”) which was seized following a collision between his vehicle and a motorcycle caused by defendant’s (suspected) reckless driving.  The officer’s belief that defendant was driving recklessly was supported by friction marks at the scene and scuff marks on the sides of his tires.  Also, the officer’s belief that defendant might seek to destroy the evidence contained in his camera was supported by his experience dealing with high-performance cars with dashboard cameras.  The fact that defendant removed the camera and placed it in his backpack, and his hesitancy to provide the camera, supported the officer’s belief on that issue, justifying the immediate seizure of the camera pending the obtaining of a search warrant to search it.  (People v. Tran (2019) 42 Cal.App.5th 1.)

On the issue of the constitutionality of the immediate warrantless seizure of defendant’s dash-cam, the Tran Court made the following significant observation: 

“A seizure is ‘far less intrusive than a search.’ (United States v. Payton (9th Cir. 2009) 573 F.3rd 859, 863.) . . . . Whereas a search implicates a person’s right to keep the contents of his or her belongings private, a seizure only affects their right to possess the particular item in question. (Segura v. United States (1984) 468 U.S. 796, 806, 104 S. Ct. 3380, 82 L.Ed.2nd 599) . . . . Consequently, the police generally have greater leeway in terms of conducting a warrantless seizure than they do in carrying out a warrantless search. The United States Supreme Court has ‘frequently approved warrantless seizures of property . . . for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been impermissible.’ (Ibid.)” (People v. Tran, supra, at p. 8.)

Also note that in Tran (at pgs. 13-14), the defendant complained that the police department held onto his camera for three days before securing a search warrant to view its contents, citing the U.S. Supreme Court case of United States v. Place (1983) 462 U.S. 696, where it was held that holding onto defendant’s seized property for 90-minutes was too long and a violation of the Fourth Amendment.  Place, however, involved the seizure of the defendant’s luggage at an airport, interfering with his ability to just leave until his luggage was returned.  The Fourth District Court of Appeal, in Tran, differentiated the facts here from the circumstances in Place, finding that holding onto defendant’s camera for three days was not constitutionally excessive.  But this may very well be pushing the envelope about as far as we can expect to get away with.  Returning the camera owner’s device to him as soon as possible, and being ready to justify the time it took to get a warrant and complete the seizure of its contents, is strongly advised.

With the fact in mind that expediency is important, it might be easier for you, and more convenient for the person who owns the camera, if a consent search is obtained as opposed to having to take the time to get a warrant.  If this tactic is used, however, it is important to remember that the consent must be “freely and voluntarily” obtained.  (Bumper v. North Carolina (1968) 391 U.S. 543, 548; People v. Ling (2017) 15 Cal.App.5th Supp. 1, 7.)  It is also strongly suggested that the consent be obtained in writing, recognizing that your suspect or witness may very well claim later that you forced him into consenting, or deny any consent at all.  As shocking as this may be, people do actually come into court and lie despite having just sworn, with a straight face, “to tell the truth, the whole truth, and nothing but the truth.” 

Further note in Tran the seizure of defendant’s dash-cam was based upon a finding of “probable cause” to believe it contained evidence relevant to the charged offenses--an issue that was hotly contested on appeal—as well as a showing of an “exigent circumstance.”   This simple evidentiary rule obviously precludes an officer from randomly seizing people’s cameras and cellphones at the scene of an incident with nothing more to justify such seizures than the officer’s unsubstantiated belief—or hope, or “hunch”—that onlookers would have recorded the incident.  You’re going to need probable cause to obtain a search warrant anyway (unless you go with “consent”).  So other than it being illegal, there’s absolutely no purpose in seizing cameras unless you can articulate sufficient probable cause to believe it contains evidence of a crime as well as why you believe the evidence may be lost if not immediately seized.

It is of further potential concern that in Tran, the person who was forced to give up his dash-cam was the suspect as opposed to a mere, uninvolved bystander.  But until some case tells us otherwise, this simple fact should not make a difference in the legal standards necessary to justify the initial seizure and the later obtaining of a search warrant for its contents.

And lastly, note that the item seized in Tran was a dashboard camera.  In actuality, the instrument more likely to be used in today’s mobile phone-crazed society is a cellphone.  Given this undeniable truth, and in light of the U.S. Supreme Court’s determination and cellphones have a “higher expectation of privacy” than most other things or places that may be searched (See Riley v. California (2014) 573 U.S. 373, 386.), we can expect a defendant (or plaintiff) to argue later in court that one’s privacy rights in his or her cellphone outweigh the government’s interest in obtaining the evidence potentially contained in that cellphone.  Obviously, there is no case law yet discussing this potential issue. But when this does become an issue (and it will), the obvious retort is that there is no authority supporting the argument that privacy rights in a cellphone are any stronger than in one’s home.  In cases where it is a private residence that’s being seized, the courts have uniformly upheld exigency-based seizures of the residence pending the obtaining of a search warrant.  (E.g., see United States v. Fowlkes (9th Cir. 2015) 804 F.3rd 954, 969-971; In re Elizabeth G. (2001) 88 Cal.App.4th 496.)  This is no more than what Tran requires. 

Other Related Issues:

Related to this problem is when a person is discovered videotaping or photographing the entrances or exists to a police facility or, more likely, some other on-going police activity.  The temptation is to stop that person and find out what he is doing, and why.  Fortunately, we already have a “plethora” (i.e., overabundance) of case law on this potential issue.

In analyzing these issues, the courts have held that we must balance a law enforcement officer’s legal authority (plus the strong governmental interest backing up that authority) to seize evidence of a crime or protect officer safety, with the private citizen’s Fifth and Fourteenth Amendment right not to be deprived of his or her property absent, if possible, a prior judicial hearing on the issue and a court order authorizing such a seizure (i.e., his or her “due process” rights).

The case law is clear that a private citizen has a First Amendment right to videotape public officials, including, but not limited to, police officers and other law enforcement officers while in a public place.  For instance, in Gericke v. Begin (1st Cir. 2014) 753 F.3rd 1, an officer who was sued in federal court was denied qualified immunity from civil liability where the plaintiff complained about being arrested for doing nothing more than videotaping a police officer during a traffic stop.  

In yet another case out of Massachusetts, the arrest of a citizen for a state wiretapping violation, when he was caught videotaping police activity, was held to be in violation of the citizen’s Fourth Amendment search and seizure rights.  (Glik v. Cunniffe (1st Cir. 2011) 655 F.3rd 78, 82-84.) 

In Texas, it was held in Turner v. Driver (5th Cir. 2017) 848 F.3rd 678, that officers who detained the plaintiff and seized his video camera upon observing him taking a video of the exterior (exits and entrances) of a police station, were entitled to qualified immunity on the issue of whether or not the First Amendment protects a person’s right to record the police and a police facility in a public place, in that this was still an undecided issue.  However, following up the detention with an arrest was held to clearly violate the plaintiff’s Fourth Amendment rights, for which the officers were not entitled to qualified immunity.  It is also arguable that with the publication of this case, we are now forewarned that there is nothing illegal about someone videotaping the exterior of a police station, and that detaining a person for doing so and/or seizing his camera, will in fact expose you to civil liability; i.e., no more qualified immunity.

It has also been held by the First Federal Circuit (again, Massachusetts) that police lack authority to prohibit a citizen from recording commissioners during a town hall meeting “because [the citizen’s] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights[.]”  (Iacobucci v. Boulter (1st Cir. 1999) 193 F.3rd 14.)

It is also pretty much accepted that a state’s eavesdropping statutes that attempt to prohibit the recording of another without the consent of all parties, cannot be used to prevent the audiovisual-recording of police officers performing their official duties in a public place, at least when the officers are speaking at a volume audible to bystanders.  Use of such a statute to justify an arrest has been held, under these circumstances, to violate the subject’s First Amendment rights of free-speech and free-press.  (ACLU v. Alvarez (7th Cir. 2012) 679 F.3rd 583.)  Per the Court: “The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.” (Pg. 595: See also Fordyce v. City of Seattle (9th Cir. 1995) 55 F.3rd 436, 439-440.)  And it has also been held that, “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”  (Smith v. City of Cumming (11th Cir. 2000) 212 F.3rd 1332, 1333.)

The Ninth Circuit has also recognized, without discussing the issue, that the First Amendment protects a person who records bystanders who happened to be viewing public demonstrations, even without their consent.  (See Fordyce v. City of Seattle, supra, at p. 439; finding the applicability of the state’s eavesdropping statute, to that point, to be an undecided issue.)  Citing Fordyce in an unpublished opinion, the Ninth Circuit further recognized the First Amendment right to photograph the scene of a traffic accident.  (Adkins v. Limtiaco (9th Cir. 2013) 537 Fed. Appx. 721 [2013 U.S. App. LEXIS 16643].)

Newer cases have further clarified and cemented these rules.  For instance, the federal Third Circuit Court of Appeal has held that police officers illegally retaliated against them for exercising their First Amendment right to record public police activity, and that private individuals have a First Amendment right to observe and record police officers engaged in the public discharge of their duties, although the defendant police officers were held to have qualified immunity in that the rule, per the Court, was yet to be well-settled.  (Fields v. City of Philadelphia (3rd Cir. 2017) 862 F.3rd 353.)

And even more recently, the Ninth Circuit Court of Appeal recognized that private individuals have a right to photograph and film government officials in public spaces, such as U.S. Customs and Border Patrol (CBP) agents at a United States-Mexico port of entry.  (Askins v. United States Department of Homeland Security (9th Cir. 2018) 899 F.3rd 1035, 1043-1044.)  Per the Court:  “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” (Id., quoting Smith v. City of Cumming (11th Cir. 2000) 212 F.3rd 1332, 1333.) 

Based upon the above, the issue may be whether or not the complained-of filming was done in a public place and/or of government officials working on public property, otherwise exposed to public view.  That’s an issue that that will most often be decided by the trial court.  If so, then the seizure and/or destruction of the plaintiffs’ photos will likely be held to be a violation of their First (speech and press) and/or Fourteenth Amendment (due process) rights.

Penal Code §§ 69 & 148:

Also note that as of January 1, 2016, California’s resisting arrest statutes (i.e., P.C. §§ 69 and 148) specifically state that photographing, videotaping, or audio recording, is not an interference with the officer’s performance of his or her duties.  (Subdivisions (b) and (g), respectively.)

Airport Security:

In contrast with all of the above, however, there is some authority for the argument that an airport security check point constitutes a “uniquely sensitive setting” where “order and security are of obvious importance,” and is thus entitled to greater protection than out on the street.  But whether or not law enforcement officers may prohibit an uncooperative (e.g., refusing to provide evidence of his identity) suspect from recording TSA agents and other law enforcement officers at an airport security checkpoint remains an open question, at least providing officers with qualified immunity from civil liability when they seize the suspect’s camera over his objection and delete (or attempt to do so) the contents.  (See Mocek v. City of Albuquerque (10th Cir. 2015) 813 F.3rd 912; even though defendant was acquitted of all criminal charges after a jury trial, the officers were found to have qualified immunity in the resulting civil case.)

At the Scene of an Emergency; P.C. § 402:

Also, another possible restriction on a private citizen’s right to photograph or videotape law enforcement is when it is done at the scene of an emergency.  Pursuant to P.C. § 402(a)(1), it is a misdemeanor when a “person who goes to the scene of an emergency, or stops at the scene of an emergency, for the purpose of viewing the scene or the activities of police officers, firefighters, emergency medical, or other emergency personnel, or military personnel coping with the emergency in the course of their duties during the time it is necessary for emergency vehicles or those personnel to be at the scene of the emergency or to be moving to or from the scene of the emergency for the purpose of protecting lives or property, unless it is part of the duties of that person's employment to view that scene or those activities, and thereby impedes police officers, firefighters, emergency medical, or other emergency personnel or military personnel, in the performance of their duties in coping with the emergency.” 

An “emergency” is defined in subdivision (c) of section 402 to include “a condition or situation involving injury to persons, damage to property, or peril to the safety of persons or property, which results from a fire, an explosion, an airplane crash, flooding, windstorm damage, a railroad accident, a traffic accident, a power plant accident, a toxic chemical or biological spill, or any other natural or human-caused event.” 

Subdivision (b) adds the use of a drone, regardless of where the drone’s operator is located, to the restrictions on being at (whether photographing or merely viewing) the scene of an emergency.

The only case law discussing section 402 is an attorney general opinion (67 Ops.Cal.Atty.Gen. 535) where the A.G. determined that local law enforcement officers have independent emergency powers under 402 to restrict entry to an area damaged by an earthquake while a threat exists to public health and safety as reasonably determined on a case by case basis.  Based upon this, where all the elements of section 402 are present, and while employing the general rules of “reasonableness,” it may be assumed until some court holds otherwise that the important governmental interest in maintaining control of, and to function efficiently at, the scene of an emergency outweighs any individual’s First Amendment rights to take photographs of law enforcement or other emergency personnel in action at such a scene.

Detaining the Witness/Owner of the Video Camera, Cellphone, IPad, or Camera:

I have also been asked whether you can detain the citizen, or even use force if necessary, in order to affect the seizure of his camera.  Therei is of yet no on-point case law on this issue.  Your department’s legal advisors are likely to be telling you not to do so given the tenuousness of the issue and the likelihood you will be generating some potential civil liability.  (See San Diego Sheriff’s Department Legal Affairs Update, Number 2014-8.)

But recognizing that if you have the right to seize a person’s video camera, cellphone, iPad, or still camera, you will likely be held by a court to be able to lawfully, albeit temporarily (i.e., for as long as it takes to take possession of the device), detain the individual if necessary in order to retrieve the device from his possession.

As a general rule, a lawful detention requires that the detainee be suspected of being involved in a criminal act himself.  (Terry v. Ohio (1968) 392 U.S. 1.)  Merely recording some criminal act with one’s video camera or cellphone is not a criminal act (see above), nor is photographing or videotaping the outside of a law enforcement facility or officers themselves as they perform their duties in public.  (Turner v. Driver, supra.)  

Authority authorizing the temporary detention of a victim or a witness is scare—arguably a minority position at best—and limited to unusual circumstances.  For instance, see Illinois v. Lidster (2004) 540 U.S. 419, where it was held that if the governmental need is strong and the intrusion upon the victim or witness is minimal, a temporary stop or detention of the victim or witness may be justifiable.  See also Metzker v. State (Ak. 1990) 797 P.2nd 1219: “It appears the police are justified in stopping witnesses only where exigent circumstances are present, such as where a crime has recently been reported.”  But also see Walker v. City of Orem (10th Cir. 2006) 451 F.3rd 1139, 1148-1149, where it was held that a 90 minute detention of witnesses was excessive.

Using force to effect such a detention is another story altogether, and less likely to be upheld by a court.  The more force that is used, the less likely a court would uphold it as lawful, it all being a question of “reasonableness under the circumstances.”  To date, I am not aware of any authority that discusses the issue of a forced detention of a victim or a witness (as opposed to a criminal suspect) for the sole purpose of retrieving evidence from that person’s possession, but when the person himself is not a criminal suspect.  But I would think that a colorable argument could be made that at least minimal force could be used when necessary to collect evidence of a crime, whether the possessor of that evidence is a suspect or not.  Should you choose to test this area of the law, we could use the case authority that comes as a result.

Conclusion:

So when asked about the issue of seizing someone’s camera, cellphone, iPad, or other recording device, based merely upon the reasonable belief (i.e. probable cause) that it contains evidence of a criminal act, my suggestion has always been to go ahead and seize the device, immediately seek a search warrant (or consent) for the contents of the item, copy the relevant contents, and then immediately return the camera, etc. with its video or photographs, to the owner.  Based upon the authority described in People v. Tran, such a procedure should be upheld and the officers protected from any potential civil liability.  Whether or not force can be used to effect such a result remains an open question.

If anyone is aware of any additional court (or statutory) authority on any of the above issues, or has any other helpful comments (“Phillips, you’re full of crap,” is not helpful.), please forward it to me and, after researching it, I’ll publish an update to this memo.