617 – Citizens Recording Police Activity

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Policy

The Harris County Sheriff’s Office (HCSO) shall ensure the protection and preservation of every person’s constitutional rights. To comply with this policy, no HCSO member may prevent or prohibit any person’s ability to observe, photograph, or make audio or video recordings of police activity occurring in the public domain so long as the person’s location, actions, or behavior do not create a legitimate, articulable threat to deputy safety or an unlawful hindrance to successful resolution of the police activity.

Definitions

Audio Recording: The act of capturing acoustic soundwaves either digitally or by analog means. Audio recordings may be stored on a number of media types and are capable of repeated playback.

Audio Recording Device: Any device capable of recording audio.

Photographing: The act of capturing and storing a still image whether in an electronic or digital format or on any type of light-sensitive film (e.g., traditional 35mm film).

Video Recording: The act of capturing a series of still images that, when projected in rapid succession, produce the optical effect of a continuous picture in which the objects move. Video recordings may be stored on various media (light-sensitive film, videotape, or digital) and may or may not contain a simultaneous audio recording.

Video Recording Device: For the purposes of this policy, a video recording device includes, but is not limited to, any device capable of capturing a still or moving images regardless of whether or not a simultaneous audio recording is included. Examples may include any of the following devices:

  • A cellular telephone of any make, model, or manufacturer, including those devices referred to as “smart phones”;
  • A personal digital assistant (also known as a PDA);
  • A tablet-style mobile computer commonly referred to simply as a “tablet,” such as an Apple iPad or a BlackBerry PlayBook;
  • Any camera, whether still photo or video, of any make, model, or manufacturer regardless of whether or not the device is capable of capturing a simultaneous audio recording, and regardless of how the device stores the images it captures.

Procedure

The occurrences of uninvolved bystanders photographing or audio or video recording the actions and conduct of peace officers at police activity scenes are becoming increasingly common. HCSO deputies must internalize two assumptions:

  1. The general public is highly likely to video or audio record their activities at any time, and
  2. Modern technology makes such recordings easy to make and of very high quality.

Deputies must recognize any bystander has an absolute right to photograph or audio or video record the enforcement actions of any deputy so long as the bystander’s actions do not:

  1. Place the safety of the bystander or of any deputies, witnesses, victims, suspects, or any other persons in jeopardy;
  2. Interfere with the execution or performance of deputies’ official duties to the extent the offense of Interference with Public Duties (Texas Penal Code, Section 38.15) or some other offense is committed;
  3. Involve an intrusion into any crime scene, private property, or other location under lawful police control or not normally accessible to the general public;
  4. Threaten, by words or actions, other persons; or
  5. Attempt to incite an immediate breach of the peace or incite others to commit a violation of the law.

The acts of observing, photographing, or making an audio or video recording of any police activity occurring in a public setting is not a criminal offense. On their own, these acts DO NOT constitute probable cause for the arrest of the observer or bystander, and they DO NOT provide any justification whatsoever for any HCSO member, without a search and arrest warrant or other appropriate court order, to review, seize, damage, erase, or otherwise inspect the contents of a person’s camera or audio or video recording device.

NOTE: BEFORE taking any police action which would stop a bystander from observing, photographing, or audio or video recording the conduct of police activity, deputies must have observed the bystander committing some act falling within one of the five numbered conditions listed above.

Nothing in this policy should be construed by HCSO deputies as an elimination or obstruction of their ability to seek out lawfully, collect, or otherwise gather evidence in the course of a criminal investigation.

If a deputy has probable cause to believe, and exigent circumstances so indicate, a bystander is in possession of any still photographs or images, video recordings, or audio or sound recordings that are, or could reasonably be considered, evidence of a crime, HCSO deputies shall take all lawful actions to collect such evidence.

Deputies seeking to obtain material contained on a camera or audio or video recording device that is the private property of a bystander must recognize the camera or audio or video recording device, and the bystander who possesses it, are protected by the same constitutional protections against unreasonable search or seizure as they would in any other law enforcement activity or investigation unless the bystander voluntarily consents to:

  1. Surrendering his or her camera or audio or video recording device;
  2. An examination of the contents of the camera or audio or video recording device; or
  3. Seizure by a deputy of any images, audio, or videos contained within the camera or audio or video recording device.

NOTE: Deputies MUST adhere to the requirements of this policy and HCSO search and arrest procedures.

One exception to the warrant requirement would be a situation where the bystander in control of the device voluntarily consents to:

  1. Surrendering his or her camera or audio or video recording device; and
  2. An examination of the contents of the camera or audio or video recording device; and
  3. Seizure by a deputy of any images, audio, or videos contained within the camera or audio or video recording device.
  4. If a deputy believes that another exception to the warrant requirement exists, the deputy shall contact the assistant district attorney in charge at the Harris County District Attorney’s Office (HCDAO) Intake Division and have him or her review all facts and circumstances of the event BEFORE a seizure is made.

NOTE: Deputies MUST adhere to the requirements of this policy and HCSO search and arrest procedures.

Upon discovery a bystander is observing, photographing, or audio or video recording the conduct of police activity, HCSO deputies:

  1. SHALL NOT impede or prevent the bystander’s ability to continue to do so based solely on the discovery of his or her presence;
  2. SHALL NOT seize or otherwise demand to take possession of any camera or audio or video recording device the bystander may possess based solely on the discovery of his or her presence;
  3. SHALL NOT demand to review, manipulate, or erase any images or audio or video recording captured by the bystander based solely on the discovery of his or her presence; and
  4. For investigative purposes, shall be mindful of the potential the bystander may witness or capture images, audio, or video of events considered at some later time to be material evidence. Record such facts and the identity of the person making such a recording within an incident report.

If the deputy reasonably believes that effecting the arrest of a bystander who is or has been observing, photographing, or audio or video recording police activity is immediately necessary, the deputy shall:

  1. Ensure the arrest is for an unlawful activity constituting a criminal offense (e.g., disorderly conduct, hindering, assault in any degree, etc.);
  2. Notify his or her immediate supervisor, prior to the arrest and seizure if possible, of all the facts and circumstances that led to the decision to effect an arrest of the person or seizure of the recording device. If notifying a supervisor prior to the arrest and seizure is not possible, do so IMMEDIATELY thereafter; and
  3. Clearly articulate the facts and circumstances that led to the arrest in all subsequent reporting and charging documents.

NOTE: All field reports and charging documents should clearly establish that the arrest was based on probable cause to believe the bystander had committed, was committing, or was about to commit a criminal offense, and exigent circumstances existed to warrant an immediate seizure of the recording device.

When a HCSO deputy suspects or determines he or she is being photographed or subjected to audio or video recording, consider the following points:

  1. Do not compromise the integrity of any established crime scene or other secured or restricted area so a bystander may observe, photograph, or audio or video record police activity.
  2. A bystander’s desire or intent to observe, photograph, or audio or video record police activity does not entitle him or her to:
    • Trespass on private property;
    • Place him- or herself in physical danger (e.g., within an area defined by SWAT members as an outer or inner perimeter);
    • Enter another person’s private dwelling, storehouse, etc.;
    • Enter into or upon any established, marked crime scene; or
    • Enter into or upon any area not accessible to the general public.
  3. In public areas, any form of identification referred to as “media credentials” does not extend any special privileges or access to anyone beyond that enjoyed by any other private citizen.
  4. Conversely, no person is required to display “media credentials” in order to exercise his or her right to observe, photograph, or video record police activity taking place in an area accessible to, or within view of, the general public.

Supervisor Responsibilities

In the event the actions of a bystander who is observing, photographing, or audio or video recording police activity are approaching the level of a criminal offense, the deputy shall make every reasonable effort to notify his or her supervisor.

Once notified, the supervisor shall respond to the scene and ensure:

  1. Adequate police attention remains focused on the call for service;
  2. If tactically feasible, inform the bystander his or her actions may, if continued, rise to the level of a criminal offense which could subject him or her to arrest; and
  3. If possible, recommend a less-intrusive location to the bystander from which he or she may continue to observe, photograph, or audio or video record the police activity.
  4. The supervisor shall coordinate with the appropriate primary investigators when establishing the limits of any crime scene.

NOTE: Deputies should bear in mind that, on rare occasions, they may encounter a person or group of persons who deliberately create hazardous conditions with the intent of provoking an inappropriate police response.

Supervisors shall not allow subordinates under their supervision to become distracted from their professional duties if it is suspected this type of deliberate provocation is occurring.

If a bystander is reasonably believed to possess any material that is, or could reasonably be considered, evidence related to a crime or the identification of a person involved in a crime, the deputy may request the bystander voluntarily surrender his or her camera, audio or video recording device, etc., into HCSO custody.

If the subject CONSENTS to the request and further CONSENTS to display the recording, first determine if the displayed data is really evidence of a crime.

If the displayed data is evidence of a crime:

  1. Exercise due care and caution with any of the subject’s property or electronic devices;
  2. Complete a property receipt including a detailed description of the property being taken into HCSO custody, and provide a copy to the subject;
  3. Provide the subject with the name and contact information of the deputy who took custody of the subject’s property;
  4. Secure the evidence in the property room as with any other item of evidence;
  5. Document the request, and the subject’s response, in the narrative of an applicable incident report; and
  6. DO NOT make any attempt to view, download, or otherwise access any material contained on the device unless consent to do so was obtained, and such viewing or display is necessary for the advancement of the current investigation.

If the subject REFUSES the request:

  1. In the absence of exigent circumstances, develop the necessary probable cause to support an application for a search warrant.
  2. Meet with either the HCDAO Special Crimes Division or the HCDAO Intake Division for their assistance in drafting a search warrant.
  3. If there is PROBABLE CAUSE to believe evidence of a crime exists on a person’s device, AND exigent circumstances (circumstances that a deputy must articulate) exist to warrant a reasonable belief the evidence is in immediate jeopardy of being tampered with, altered, deleted, or destroyed, a deputy may TEMPORARILY seize the device for safekeeping or preservation of the evidence while the appropriate applications for search and seizure warrants are made.
  4. Due to the highly mobile nature of an audio or video recording device, the device may be seized for safekeeping to avoid deletion or tampering pending the issue of a warrant.
  5. Any deputy temporarily seizing a device as set forth in subsection K (3)(c) above will contact a supervisor immediately, or as soon as practical, and inform the supervisor of the seizure and the circumstances compelling the seizure.
  6. DO NOT make any attempt to view, download, or otherwise access any material contained on the device.
  7. Protection of any potential evidence is paramount. Only qualified technicians may make efforts to access material contained on the device and only after a search warrant is obtained.
  8. Apply for, execute, and return search and seizure warrants in accordance with HCSO Department Policy #507 – Search Procedures.
  9. Submit the recovered camera, audio or video recording device, etc., in accordance with HCSO policies and property room rules.

Complete all appropriate incident reports.

NOTE: Upon taking custody or temporary custody of the device for the purpose of safekeeping or preservation, deputies shall either remove the device’s battery or switch it to a power-off condition. This will aid in preventing any remote access to or deletion of the data or other material stored within it.

The supervisor shall ensure any camera or audio or video recording device used to photograph or audio or video record police activity was lawfully seized and within HCSO policy guidelines whether:

  1. Through the voluntary consent of the person in possession of the item,
  2. Through execution of a search and seizure warrant, or
  3. Through some valid exception to the warrant requirement.

Revision

This policy has been revised on the below listed dates:

September 19, 2014

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