Consider the following scenario. Troopers are dispatched to a reported shooting. A reporter goes to cover the story. 100 yards away from the scene, the reporter takes photos of troopers arresting a suspect. Subsequently, a trooper on the scene provides details to the reporter, who then leaves in his personal car.

Shortly afterwards, another trooper from the scene stops the reporter and asks for his camera or memory card. The reporter offers to share the images but the trooper says he has to take possession of the card. The reporter complies.

Which of the following is correct?

The paper’s First Amendment right is not absolute and must yield when it involves potential evidence of a crime. Seizure of the memory card was justified for the police to be able to establish a chain of custody — that the card’s contents had not been altered — so the evidence will be admissible in court. The trooper’s seizure violated the paper’s First, Fourth, and Fourteenth Amendment rights. 1 and 2

The First, Fourth, and Fourteenth Amendments

Citizens and the media have an unambiguous First Amendment right to record police in the public discharge of their duties as long as the recording actions don’t interfere with the officer’s duties or the safety of officers or others — according to the International Association of Chiefs of Police (IACP), the U.S. Department of Justice (DOJ), and the vast majority of courts.

Warrantless seizures are legal only if an officer has probable cause to believe the property holds contraband or evidence of a crime (child pornography and counterfeiting, for example) and exigent circumstances demand it, or some other recognized exception to the warrant requirement is present. United States v. Place (Supreme Court 1983). Otherwise, such seizures violate the Fourth and Fourteenth Amendments.

The correct answer to the scenario above is “3.”

Departmental Policies

Every police agency should have a specific, educational policy on photographing or recording police activity. News stories about lawsuits triggered by seizures, arrests, and searches of recording devices indicate lots of agencies don’t have a policy or there’s confusion about it.

The IACP Model Policy is a good start. The DOJ has an online Statement of Interest it filed in a case that provides even more help.

The right to record police activity isn’t absolute. Narrow restrictions may apply. The recording activity may not:

Interfere with police activity. Jeopardize the safety of the officer, the suspect, or others in the vicinity. Violate the law or incite others to violate the law. Unreasonably impede any emergency response or flow of vehicular or pedestrian traffic.

Policies should give specific examples of the above so officers don’t unnecessarily infringe on protected activity. Examples of #1 might include tampering with a witness or persistently engaging an officer who is in the midst of her duties. But “making obscene gestures” and “yelling profanities” at an officer falls “squarely within the protective umbrella of the First Amendment.” Duran v. City of Douglas, Arizona (9th Cir. 1990).

If a person’s recording is violating one of the above restrictions, both the IACP and the DOJ recommend policies that include having officers suggest appropriate alternatives before arresting anyone.

Policies should specifically describe when it’s permissible to seize recordings and devices along with guidance on how to lawfully seek consent and what might constitute coercion rendering a consent involuntarily. The policies should specifically describe exigent circumstances that might justify seizing recordings without a warrant, the permissible length of the seizure, and the prohibition against warrantless searches of a seized device.

Policies should also make clear that 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, (Supreme Court 1973).

Don’t Fight the Letter or the Spirit of the Law

Don’t arrest someone recording or photographing you on a “trumped up” charge of disorderly conduct, interference, obstruction, tampering, or loitering — and then seize their camera or phone. It makes headlines, the charges end up getting dropped, and you and your department end up getting sued. Worse, it damages the public’s trust — something even more costly.

Go to YouTube or do a Google search of “police try to seize camera cell phone.” It’s not a pretty or professional sight.

Instead, embrace what is clearly here to stay. That’s what St. Louis did. More than ten years ago — before smartphones with cameras were everywhere — the local ACLU chapter announced a plan to hand out cameras to people who wanted to film the police working in crime-plagued areas.

The department's response? Go ahead. We think you’ll catch us acting professionally. Despite a high crime rate and occasional tensions between police and the community, complaints of officers stopping people from recording them were nearly unheard.

There’s Another Lesson

As I observed the scenario at the beginning of this article play out in my home state, I was struck by how some banked goodwill impacted the matter. The complaining newspaper commented that it was filing a complaint only to get the matter addressed. It noted that the trooper that seized the memory card was professional and polite and it wasn’t seeking any job action against him. The paper went on to state it had a history of good relations with the troopers.

When the internal investigation was complete, Colonel James Cockrell of the Alaska State Troopers owned the mistake and said, “We dropped the ball.” He also said the matter would be covered in a four-hour refresher training on search and seizure for all troopers. The newspaper praised the “thoroughness and sincerity of the resolution” and stated, “We consider this matter behind us now.”

Law enforcement agencies and officers aren’t perfect. The street and the law are complex arenas. When mistakes are inevitably made, the public trust you’ve built up and how you handle it can make the difference between ugly, viral videos and costly, losing litigation or the matter being sincerely addressed and resolved with praise from the complainant.