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.