August 15, 2012
In the Media
Police Sought Cellephones for Video of Times Square
Shooting
By Wendy Ruderman and Aaron Edwards
The New York Times
August 14, 2012
Excerpt:
In the age of the ubiquitous smartphone,
it is increasingly common for crimes, shootings involving the
police and catastrophes to be captured on video, often prompting
investigators to seek the video as evidence to help them piece
together what happened.
But the quests also raise questions of
what rights the police have to witnesses’ smartphones and whether
police officers make clear that bystanders are not legally
obligated to turn over their phones.
“If a picture is worth a 1,000 words,
video is worth 5,000 pictures and so to have any sort of raw
footage is incredibly helpful to investigators,” said Larry
Cunningham, a former Bronx prosecutor who is an associate professor
and associate dean at St. John’s University School of Law in
Queens.
“Even if it looks like a clean shooting,
authorities are still going to investigate it,” Professor
Cunningham said. “Here, the district attorney will probably still
present the case to a grand jury so they can say that an
independent body looked at this evidence and decided not to bring
charges.”
Investigators can legally confiscate a
cellphone and review the video only after obtaining a court order.
That is not required if the owner consents, Professor Cunningham
said.
“Consent is a tricky thing, because
sometimes the police don’t make it seem like you have much of a
choice,” Professor Cunningham said. Many people do not know that
they have a right to decline, or would be reluctant to exercise
that right, he said.
The police are required to give anyone
whose property is taken a voucher, a form that serves as a receipt.
Investigators are permitted to keep the phone until the case is
completed if they obtained it consensually or through a subpoena,
Mr. Cunningham said.
In 2009, Police Commissioner Raymond W.
Kelly issued an order making clear that officers cannot demand to
view photos or video footage without consent, barring “exigent
circumstances.” Investigators prefer to download the video
themselves, rather than rely on an individual to e-mail or copy the
file for them. The reason, Mr. Cunningham said, has to do with the
chain of custody.
“If you have a civilian pulling the video
off and e-mailing it, then later on down the road, if the case goes
to trial, the defense may raise questions about the transmission,”
Mr. Cunningham said.