Somebody, somewhere is recording: How police can obtain bystander videos
Videos shot by civilians can be a critical part of your investigation
Few forces are impacting law enforcement like video. Policing in the Video Age, P1's yearlong special editorial focus on video in law enforcement, aims to address all facets of the topic with expanded analysis and reporting.
In the first installment of this four-part signature coverage effort, The Video Technologies Shaping Policing, we address how technologies including police drones, throwable robots, body-worn cameras, dash cams, and videos shot by the public are impacting law enforcement. Click here to learn more about the project.
By Jennifer Rouse Bremer and Jack Williams
If you are paying attention to the news, you will notice the massive amounts of personal (bystander) videos depicting chaotic scenes such as officer-involved shootings, use of force and full-scale civil unrest. Bystanders, and even the involved parties of these incidents, are using cell phones and other electronic devices to capture what’s happening on the scene. There are two primary reasons individuals elect to record police activities: (1) because they want to catch an officer doing something wrong or (2) because they are seeking entertainment value and want something exciting to show all their friends and family.
Due to this increasing trend of bystanders recording these events, many officers are developing the mentality to treat every citizen encounter as if everything that is happening or being said is, in fact, being recorded.
Expectations of privacy
With the pervasiveness of cell phones and other recording devices, it is increasingly common to see videos of crimes or suspects hit social media before a police officer can even arrive on scene. In these cases, the videos are considered public and there is no expectation of privacy. This is both a blessing and a curse.
Because there is no expectation of privacy, law enforcement may view or even copy the videos on a social media site without a warrant.
Alternatively, what happens when an officer notices a bystander recording an incident in which the officer reasonably believes the video contains valuable evidence relative to the incident that has just occurred? How does the officer go about obtaining that video directly from the bystander, especially if he or she is uncooperative or belligerent, while preserving their Fourth Amendment rights that protect them from illegal search and seizure?
Rights to record
If you are a police officer or attorney, you are probably already thinking of all the legal ways to obtain the bystander’s video. So, let's start there. Citizens have the right to record video or take pictures of anything in plain view in outdoor public places where they are considered legally present. That includes pictures and videos of government officials, transportation facilities, federal or state buildings and even police officers.
Obtaining a search warrant
Typically, without consent, officers must obtain a search warrant to gain access or seize a person’s electronic recording device. Any officer who has ever applied for a search warrant knows it is a lengthy and time consuming process. Going through the process creates several risks, such as the citizen deleting the video or the warrant not being approved.
Under certain conditions known as exigent circumstances, where an officer believes that a recording might contain evidence of a crime, he or she may seize the phone or other equipment in order to prevent recordings from being lost or destroyed. However, the devices may not be searched, viewed or copied without proper legal authority such as a search warrant or subpoena (a June 2014 U.S. Supreme Court decision in Riley v. California held that police need a warrant to search a cell phone). Under no circumstances may an officer delete or modify those recordings or order someone to do so.
Additionally, laws differ relating to whether the owner of the cell phone was present when it was found or seized, if video or text was in plain view of an officer, if the cell phone was in plain view within a seized vehicle, and so on. The legal variables are endless.
Confused now? The bottom line for officers is that sometimes you can take the device with the recording and sometimes you legally can't take it.
Requesting the video
The question remains then, what is the best way to get it without having to jump through the confusing and ever-changing legal hoops? It’s simple. All you have to do is ask for it. The legal hurdles are no longer an issue if the citizen simply gives you the video. So, how do you convince someone to give you that video in their cell phone? Employing the basic tenants of community policing may be the best answer.
One of the fundamental principles of community policing is getting to know people in the community - becoming a part of the community and not just a visitor in a uniform. Research repeatedly shows that when people in any community have a good rapport and trust with an officer, their view of police becomes more positive, and they are more likely to assist police with issues and investigations. If citizens trust you and believe you are there to help them, they will be more likely to simply hand over the video you need once you ask them for it.
Creating community trust
How do officers create that community rapport and trust? It’s simple. All you have to do is get out of the patrol car and walk the neighborhood. Stop and talk to people you see while you’re out walking. Introduce yourself to them and provide a business card and tell them to call you directly if they need anything. Make sure to visit with the local businesses, whether it’s to grab a bite to eat, get your hair cut or buy your afternoon soda from the local corner store. If you show interest and commitment to the people in the community, they will reciprocate and help you when you ask for it.
Also, don’t be afraid to talk to the gang members, prostitutes and drug dealers in your area. Although they may be frequent fliers in the criminal justice system, they are also a good source of information regarding the criminal activity in the area, and they also have cell phones and tend to record incidents. Another benefit to getting to know the criminal element is that when they trust and respect an officer, the likelihood of the officer getting hurt or killed during an encounter with them is significantly reduced. In some cases, they will even help and defend an officer who is being attacked because they view that officer as a person, not a uniform.
Even if the citizen in question is not a fan of police, they may be willing to provide the video to an officer they know and trust before they would an officer they don’t know. When someone is detained by police or when they know the police are obtaining a search warrant to seize their property, they usually become more resistant to police efforts. If the person already has anti-police sentiments, those feelings can be enhanced, causing them to complain publicly and causing others to feel the same way they do about police. Using proven community policing strategies cannot only make it much easier to gain consent when a video is needed, but can also help to negate the negative sentiments people have for police, which can ultimately save both citizens' and officers' lives.
Like it or not, social media, video and instant news are part of our culture. The best thing for officers to do is to accept and embrace this reality as part of your everyday policing. Citizen videos can be a critical part of your investigation, speed apprehension and aid in prosecution, which ultimately provides speed to justice for victims and their families.
About the Authors
Jennifer Rouse Bremer has been involved with government and education her entire career. She served on the IACP Community Policing Committee for six years and was an integral part of the team that created the Connected Justice solution at Cisco Systems, Inc. She has worked with law enforcement, DoD, DOJ, and other organizations to help integrate the use of technology and community policing strategies in order to enable community engagement that creates force multipliers in high-risk communities. She is also a founding Board Member for the Central Texas Positive Coaching Alliance and resides in Austin, TX.
Officer R.S. (Jack) Williams has been a police officer with the Raleigh, North Carolina Police Department for nine years. For the past four years, he has led the community policing efforts in the highest crime areas of Raleigh, realizing a 44 percent reduction in crime in one area and a 30 percent reduction in another area. His tactics, using his previous military and sales experience have created an environment of trust and empowerment within the community that have been proven to dramatically reduce crime, enable citizens to aid in the protection of their own communities, and provide a platform for healthy dialogue between citizens and law enforcement.