Let's say the police come into your house with a search warrant. By now you know from my previous posts that the Fourth Amendment says a warrant must "particularly" describe the place to be searched and the items to be seized. You read the warrant and, sure enough, it contains a very specific list of things the police are looking for.
As the police go about their business, you see one of them is videotaping your entire house. You didn't see anything in the warrant about them being free to film the interior of your home. Can they do that?
As you can surmise from the TV news or YouTube videos, more and more police departments and sheriff's offices are outfitting their officers and deputies with body cameras. Law enforcement dash cam videos have been around for years and are also becoming more commonplace .
The law is pretty well-developed in this area, starting with the First Amendment. As long as the police are where they are allowed to be, they can generally record anything they can see or hear.
Here's the flip side. That same privilege applies to you!
As long as you are where you have a legal right to be and are not obstructing or delaying an officer in the performance of his/her duties, you can video and audio tape their activities. It doesn't make any difference what your reasons may be -- giving it to the local TV station, posting it on YouTube, using it for a class presentation, or selling it to TMZ.
As much as they might not like it, the police are becoming use to being filmed by regular citizens. They also have a job to do and have wide latitude in establishing a perimeter around crime scenes to protect evidence and allow detectives to work unhindered. They also are the ones who get to decide, at least at that moment, what constitutes "obstructing and delaying" them. If they tell you to back up, just do it. If they have to tell you more than once, you might find yourself handcuffed in the back of a police car.
The police cannot decide that the images or sounds you recorded are now "evidence" and take your phone, camera, or tape recorder away from you. That would be an unconstitutional seizure in violation of your Fourth Amendment rights.
New laws that went into effect on New Year's Day this year prohibit California law enforcement officers from detaining or arresting a person merely because s/he is taking a photograph or making an audio or video recording of an officer when s/he “is in a place he or she has a right to be.”
Use the Comment box if you have further questions about this subject or any of my previous blog posts.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.