By Greg Sowinski email@example.com
May 8, 2014
LIMA — A man using a smartphone to record video of a police traffic stop is facing criminal charges after he refused to turn over his phone.
Michael S. Davis, 35, has been charged with obstructing official business and resisting arrest, both misdemeanors. He has pleaded not guilty to the charges and has a pretrial scheduled for June 13.
Davis said he was doing nothing wrong on April 26 when he used his cell phone to record the traffic stop and arrest of a person on drug charges. The incident occurred outside a family member's home on Linden Street he happened to be visiting. He said he only was exercising his First Amendment right.
But Lima Police Maj. Chip Protsman said Davis captured evidence of a felony crime. Officers found crack cocaine inside the car, and Protsman said police need the video to use as evidence.
Davis said it's not his job to do the work of police, and the video is his property — along with his smartphone, which police still have at the Lima Police Department.
American Civil Liberties Union of Ohio spokesman Mike Brickner said police can confiscate a phone that records video if there is evidence of a crime and police reasonably believe the evidence could be lost or destroyed.
Brickner said the issue is relatively new, since the technology is new, and a court precedent has not become clear. So far, courts have been split on what police can or cannot do as this relates to search and seizure laws as well as privacy, he said.
“The fact this is murky is not necessarily surprising. Unfortunately and oftentimes, our Constitution and our laws don't always keep pace with technology,” Brickner said.
Brickner said if police do seize someone's smartphone, they should copy the evidence and return the phone to its owner as quickly as possible. He said phones today are basically computers with a person's life on it.
“From a policy perspective, it does create problems for police to frequently take cell phones and hold them for days or weeks until they get a warrant to get the videos,” he said.
Protsman said police will return the phone to Davis — along with the video — but they want to make a copy of the video first. To do that, however, police must obtain a search warrant since Davis didn't consent to the copying of the video, Protsman said.
Had Davis consented, it's possible he could have gone to the police station and allowed someone qualified to copy the file. Davis would have had his phone back right after that, Protsman said.
The problem happened, Protsman said, when Davis refused to give officers his smartphone. It was compounded when Davis tried to walk away and an officer grabbed his arm. Davis further resisted and was tased when an officer thought he may be reaching for the officer's gun during the arrest, Protsman said.
Davis said he never resisted arrest and police brutalized him. He said he kept repeating loudly he was not resisting so citizens at the scene could hear him. He said he still has injuries that are being treated.
He said he has a heart problem and tasing him put his life at risk. Police had to take him to the hospital after they tased him. Davis signed a bond form at the hospital and never was taken to jail, only ordered to appear in court.
Protsman said anyone is free to record video of officers doing their jobs, but police may want that evidence in the end.
“He has a right to film as long as he's not interfering with the officers,” Protsman said.
Protsman said police had no problem with Davis recording video, and he wasn't interfering.
Davis said he frequently records video of police for a website called “Cop Block” that is set up to hold police responsible for their actions on the job. He said he has had run ins with police in Oakland, Calif., and other places recording video.
“The only reason why we do it for the police is to keep them in line and prevent them from going overboard,” Davis said.
Davis said he has recorded video of police in Lima on other occasions, too, and some officers know him.
Brickner expects a court to eventually rule on privacy, and search-and-seizure matters involving smartphones that will set stronger guidelines, especially when it involves the smartphone of bystanders, not the criminal being arrested. Any review, regardless of technology, should use the Constitutional principles the country was founded on, he said.
The issue of whether police can confiscate and search smartphones of a person they arrest without a warrant was argued last week in the U.S. Supreme Court. While the case is different than Davis' case — Davis was merely a bystander — the court is looking at how much privacy should be afforded to smartphones.
Attorneys arguing for privacy said police must have a warrant to conduct a search. They said smartphones are computers that contain contact information, text messages, emails, videos and other personal information such as from bank accounts.
Brickner's advice is to be careful and decide whether a video is worth potentially getting arrested over.
Anyone recording video as a bystander should remain calm if confronted by police instead of challenging them but should politely assert their Constitutional rights. An alternative, since it's a gray area, may be to ask the officer if a copy of only that video can be made and the phone be immediately returned, Brickner said.
He also said police should try to be fair and try to work with citizens. He said officers must not abuse their power and take phones, for example, that capture an officer doing something wrong in the name of collecting possible “evidence” of a crime just to avoid unflattering video with no intention to use the video as evidence.