Gresham

To protect evidence of a crime, police can seize your cellphone

By Dan Tilkin KATU News and KATU.com Staff Published: Feb 14, 2013 at 6:36 PM PDT Last Updated: Apr 26, 2013 at 1:16 PM PDT
To protect evidence of a crime, police can seize your cellphone »Play Video
A still image from Carrie Medina's phone.

PORTLAND, Ore. – According to the Gresham Police Department, a police officer who snatched a cellphone from a woman recording officers making an arrest was acting quickly to keep potential video evidence of a crime from being erased.

Carrie Medina considers herself a police watchdog and has a history of recording police making arrests.

Minutes after she began recording, the Gresham transit officer can be seen in the video walking over and demanding to see her phone so he can check for evidence.

On the video, Medina questions the officer's request, but he tells her he doesn't need a subpoena to search her phone for evidence of a crime.

"Ma'am, do you want to hand me the phone or would you like to show it to me?" the officer asks.

"I don't want to show you ...," Medina begins to respond. At that point the officer snatches the phone from her while it is still recording.

"I was not there to interfere, I was not there to intervene, I was not there to yell at them. I was just there to quietly watch," Medina said later during an interview. "He assaulted me. It was an illegal seizure of my property. It was a violation of my First Amendment right to be able to film. It was a violation of my Fourth Amendment right – the seizure and illegal search of my property."

Gresham police say their officer didn't seize her phone because he was unhappy that she was recording. They say he seized the phone because he was trying to protect video evidence he thought might be on the phone of the arrest he just made.

"The actual arrest itself was a crime of resist arrest," said Gresham Police Department spokesman Lt. Claudio Grandjean. "She's videotaping, the officer didn't know how much she got of the actual resist arrest, but there's potentially evidence of that on the video. That's what he was after was that video. She made it clear she wasn't going to hand it over."

Gresham police say officers don't need a warrant to seize the phone when they feel the evidence on it is in jeopardy of being erased, but they would need a warrant to actually look at the phone's contents without the owner's consent.

"In this case, all it takes is – delete – and the evidence is gone, and especially if someone is (backing away) – I'm not going to give you that – you’re real close to losing evidence," Grandjean said.

In this case the law appears to be on the police officer's side. The case is different than some previous cases where police have seized citizen’s cellphones, even putting a man in jail for recording in public, only later to admit they were wrong.

In those previous cases, police officers have seized cellphones, because they believed the act of recording itself was a crime.

In 2008 Beaverton police not only took Hao Vang's phone he spent a night in jail after he took video of his friend being arrested.

Police said he violated Oregon law that says you can't record someone's audio without notifying them. But Beaverton ended up paying Vang for unjust treatment. Gresham police say that was a different circumstance.

"The courts have found that holding the phone up like this is enough notification," Grandjean said. "You've told people, we all know what they're doing so you have that situation. In this situation you have somebody recording evidence of a crime."

Legal experts say there would be a problem in another scenario where an officer seizes a phone to cover up his own misbehavior.

So what are your rights in these situations?

The American Civil Liberties Union says that in public spaces, you have the right to photograph anything that is in plain view.

Police cannot delete your photographs or video, but this does not give you the right to violate other laws or interfere with crime scenes.

Oregon Eavesdropping Statutes:

Washington:

Right of Privacy - Chapter 9.73