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Friday, July 08, 2016

Police body cameras raise a host of legal (Fourth Amendment) issues

Police use of body-worn cameras raises a host of difficult and interesting legal questions. I have spent a good deal of time watching body camera videos over the past couple of years - both those that show up on sites like YouTube as well as those filmed by officers with whom I have been conducting field research with two municipal police departments in Washington State. Because some of my recent (forthcoming) research is focused primarily on issues of state privacy and access to information laws, I wanted to raise some issues for discussion here at Prawfs related to some of the videos I've watched most recently, and in the context of the Fourth Amendment (as this is the next area I need to begin really grappling with). One of these videos is now on YouTube, and the other hasn't made it there (but I describe it more in my paper and forthcoming book), but both were filmed by officers in the departments where I conducted my research).

The first video (I'm not going to provide links, as I don't want to directly increase the number of views of these videos) was captured by an officer's camera as he responds to a call for service from an elderly woman who is complaining about people she believes are trying to scam her into a fraudulent loan for home renovations (I know this because the conversation is captured on the video). Upon reaching the woman's house, the officer says hello and enters the home when he is welcomed in by the woman. He does not verbally announce the presence of the camera - and under the State AG's legal interpretation of Washington State law, he has no obligation to do so - but he does continue to record the conversation that takes place inside the woman's house. The second video is captured by a camera worn by an officer as he responds to an emergency inside a private residence, and the video depicts a truly horrible scene, including the failed efforts of the officer to revive a lifeless little baby who has stopped breathing. We see other children, adults, a wailing and distraught mother, and a number of other officers throughout the video as the officer's chest mounted camera captures the scene in front of him.

In both of these cases, body cameras were worn into private homes and captured different types of officer-citizen interactions. In both cases, much of the video (and audio) was subject to public disclosure, even to anonymous requestors, at the full expense of the police department. Officers also wear cameras during warranted searches and arrests inside homes. However, on June 9, a number of new exemptions to Washington State's Public Records Act became effective, and one of these exemptions specifically covers body camera footage that records "[t]he interior of a place of residence where a person has a reasonable expectation of privacy." (Another prohibits disclosure of dead bodies.)

Prior to June 9, at least in Washington, quite a bit of footage recorded inside peoples' homes was potentially subject to public disclosure, and I think this specific exemption is a positive development. However, this particular exemption is subject to at least two important limitations (that are linked in some ways): 1) the exemption is crafted as a rebuttable presumption (because disclosure would be not be "highly offensive to a reasonable person," as required by the Act's general privacy provision), and 2) it only applies where a person has a "reasonable expectation of privacy." Read on their own, this protection provided by the new exemption may sound fairly strong, as we may generally assume that people maintain heightened expectations of privacy in their homes. However, read in conjunction with an opinion by the Washington State AG that says that conversations between police officers and citizens are not private (for purposes of the state Privacy Act) even when they occur inside that person's home, we begin to see some potential conflicts.

In the context of the Fourth Amendment, the U.S. Supreme Court (in Wilson v. Layne, 526 U.S. 603(1999)) has held that bringing a reporter into a private home during the execution of search warrant cold violate the suspect's Fourth Amendment rights, at least when the "the presence of reporters inside the home was not related to the objectives of the authorized intrusion" (id. at 611). When an officer wears a body camera into a home, the use is arguably "related to the objectives" of the search or arrest, but permissive public records laws could make the officer's video nearly as accessible to the press (or any other member of the public) as the reporter's video or photographs. In a way then, the Wilson decision provides protection at a procedural level, but doesn't necessarily change the essence of the outcome between these two cases. Are the connections between Fourth Amendment's guarantees and state records laws relevant for Fourth Amendment analysis purposes? Should they be?

Another interesting set of questions arise in the context of the "plain view" exception to the Fourth Amendment's warrant requirement. I can easily imagine that body camera video filmed inside a person's home (by an officer legally inside the home) could capture potential evidence that was in "plain view," but wasn't actually seen by the officer (or was audible and recorded by the cameras's microphone, but not actually heard by the officer). Much like Justice Sotomayor's worries, expressed in her concurrence in U.S. v. Jones (132 S.Ct. 945 (2012)) that long-term GPS tracking of a suspect's automobile does something qualitatively different than merely improve law enforcement efficiency (or merely replicate what a police officer could legally do anyway, as described in U.S. v. Knotts, 460 U.S. 276 (1983)). In this case, the possibility of police personnel viewing and analyzing the footage after-the-fact and then finding evidence of other, unrelated, criminal activity, could serve to initiate (and legitimize) future law enforcement searches or arrests for reasons unrelated to the initial search. Is this a good or bad result?

What do readers think about these three sets of issues? Are there other Fourth Amendment questions or issues that also seem obvious or important? I look forward to hearing your responses.


Posted by Bryce C. Newell on July 8, 2016 at 11:14 AM in Criminal Law, Information and Technology | Permalink


I generally find arguments like those in the Jones Sotomayor concurral pretty dubious, but, replying to Prof. Kerr here, on your model, isn't it possible that the automatic recording of police-citizen interactions where there is no crime scene calls for some equilibrium adjustment to the ordinary plain-view approach? That seems a weaker argument than the one in Jones itself, as I don't know how much body cameras would really change (an officer could always have seen the things his camera now records, whereas GPS can capture information that was previously extremely impracticable to collect, or so the story goes, anyway), but it's a similar form of argument and I thought that adjusting doctrine to reach some sort of agreeable homeostasis as technologies change was what equilibrium adjustment was all about.

Posted by: Asher Steinberg | Jul 8, 2016 5:51:46 PM

A few thoughts:

1) Wilson v. Layne talked about the issue of self-recording police. Although it didn't decide it, it did say that the issue was "significantly different from" media presence. The language: "While it might be reasonable for police officers to themselves videotape home entries as part of a “quality control” effort to ensure that the rights of homeowners are being respected, or even to preserve evidence, cf. Ohio v. Robinette, 519 U.S. 33, 35 (1996) (noting the use of a “mounted video camera” to record the details of a routine traffic stop), such a situation is significantly different from the media presence in this case. "

2) I think the state records laws are entirely irrelevant to the Fourth Amendment analysis. See, e.g., Virginia v. Moore; Cal v. Greenwood. (I also think they should be irrelevant, for reasons I get into in a forthcoming paper that should be up on SSRN in a few weeks but that I won't bore you with here.)

3) Existing cases on photographing crime scenes -- photographs that often reveal details not actually observed by officers -- probably answer the plain view exception question. See, e.g., Bill v. Aseltine, 958 F.2d 697 (6th Cir. 1992).

Posted by: Orin Kerr | Jul 8, 2016 1:54:45 PM

First,I totally agree that reviewing of the video after the officer has left the scene opens the "in plain view" door for future enforcement. The degree to which this option is exercised is currently limited by law enforcement's budget and resources.. I do shudder at the thought of the body camera video being downloaded to a server with image recognition software that will then scan the entire video record for drug paraphernalia, stacks of cash, boxes of baby formula, boxes of Tide, jewelry, etc that were not necessarily in officer's field of view.

At what point does the prosecuting attorney deem such information "evidence" or sufficient probable cause to seek a warrant and return to the premises? From a community policing perspective, law enforcement must also balance its relationship with the community (trust) and the nature and degree of "criminal activity" recorded by the body camera.

Posted by: Paul | Jul 8, 2016 1:18:27 PM

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