Police Body Cameras Subject of Debate in Utah

police body camera debate

Photo: Glogger/Wikimedia Commons

Two recent cases in Utah where deadly force was applied by police officers have raised questions about the use of police body cameras. In both cases, it has been determined by the Salt Lake County District Attorney’s Office that the use of deadly force was justified. This decision was made largely as a result of the fact that both officers were wearing body cameras at the time of the shootings and it was possible to evaluate their actions. While many have wondered if a national policy regarding police body cameras could have alleviated problems in the aftermath of the Ferguson, MO, incident, others are concerned about the potential implications of such a requirement.

Police Body Cameras in Utah

Two separate cases in Utah have made considerable news: the fatal shooting of Dillon Taylor and nonfatal shooting of Timothy James Peterson. While footage remains to be released regarding the Taylor incident as the result of a pending investigation, the officer in the Peterson case has been cleared as a result of the body camera he was wearing and inflammatory statements made by Peterson previous to the shooting.

In a recent Utah poll, 83 percent of Utahns stated that they strongly or somewhat agree with police body cameras or some other device that would record the officers’ interactions with the public. Currently, 145 Utah officers are wearing the cameras with 114 more scheduled to get them in upcoming months. However, the state’s largest police department, the Unified Police Department, currently prohibits police body cameras, even if an officer has purchased one on his/her own.

According to Salt Lake County Sheriff Jim Winder, who oversees the Unified Police Department, he isn’t against them. He just believes they shouldn’t rush to equip every officer with a camera without making sure they have policies in place regarding privacy concerns and how the footage will be used.

“I think they promote better customer service,” Winder said. “I think they promote liability reduction for the agency. The reason to have them is not just to protect the cop.”

Pros and Cons of Police Body Cameras: Can Big Brother be a Good Thing?

Utah isn’t the only state mulling over the use of police body cameras. In a recent panel discussion on the topic, San Diego Police Chief Shelley Zimmerman stated that their goal was to have all 1,800 San Diego patrol officers equipped with body cameras by the end of 2015. However, as opposed to Utah where the footage from police body cameras is available to the public through the state’s public records law, California has chosen to only release records through the court system. Zimmerman said she would reconsider her stance if public safety was at stake, such as in the case of the Ferguson, MO, shooting. The public safety isn’t the only listed benefit of police body cameras. In addition to transparency, Zimmerman believes the use of body cameras can help restore public confidence in police.

Another benefit to the cameras directly links to the Ferguson incident, but a quick YouTube search of the term “racial profiling” indicates Ferguson wasn’t the only incident where law enforcement officers have been accused of this type of behavior. The behavior by some people to treating other people differently based on their race could be affirmed or acquitted regarding police actions if police body cameras were employed more regularly. Questions of abuse of power or unnecessary use of force could also be addressed. In September, the U.S. Border patrol stated that it would start testing body cameras on their agents as a result of numerous complaints.

Another benefit that was addressed at the San Diego panel was the fact that many situations that start as hostile become calmer once a suspect knows he/she is being filmed. Even though police officers are not required to notify an individual that they are wearing a body camera, many have found it to their advantage in tense situations. “[N]umerous officers have indicated they were glad they had them,” Zimmerman said.

While police body cameras can also be beneficial tools in officer training, one of the concerns regarding the cameras is that they would be used as part of performance evaluations. Another concern is that while many newer officers approve of using the cameras, many veteran officers are struggling with adapting to the technology, especially considering that many departments only require the officers to turn it on when dealing with individuals, something veteran officers may forget to do.

Other concerns relate to privacy and how the video might be used. For example, even though videos of failed sobriety tests are prevalent online, it is generally agreed that such video shouldn’t be used to make people look foolish. Also, this video could be used out of context. An example was used of an officer entering a home where child abuse may be reported. A house may look messy because of time of day or the child has been playing, but even though no abuse may be apparent, this type of video evidence of “unfit living conditions” might be misused in divorce proceedings.

The Future of Police Body Cameras in Utah

Sheriff Winder has raised other questions regarding the use of police body cameras that he feels need to be addressed before implementing a program with the Unified Police Department, questions such as how long video records need to be kept, how they are classified, and how editing will occur. Cost will be another issue.

In order to address some of these issues, Winder has assembled a panel to study the use of police body cameras, including police officers, members of the community, and at least one person who has admitted to being “anti-police.”

Winder believes it is best to thoroughly research this before implementation in order to avoid a civil lawsuit. He referred to an article from the U.S. Department of Justice which included a letter from the Police Executive Research Forum which stated, “The decision to implement body-worn cameras should not be entered into lightly…once the public comes to expect the availability of video records–it will become increasingly difficult to have second thoughts or to scale back a body-worn camera program.”

Does Officer’s Ignorance of Law Violate the Fourth Amendment?

Question of Fourth Amendement violation

Photo: J

The Fourth Amendment is once again up for review in the first case to be argued in the new U.S. Supreme Court term. In the case of Heien v. North Carolina, Nicholas Heien was arrested and charged with two counts of trafficking cocaine after the vehicle he was traveling in was pulled over. However, in-depth research into the law revealed that no laws were broken previous to Heien being pulled over, and subsequently there was no reason for the officer to pull over the vehicle. Therefore, it would seem that the defendant’s Fourth Amendment rights had been violated. The case bounced around the North Carolina court system and now has found its way to the Supreme Court.

The Original Case

In April 2010, Maynor Javier Vasquez was pulled over on I-77 in North Carolina after Sergeant Darisse of the Surry County Sheriff’s Department observed a broken brake light. When the officer pulled over the vehicle, he noticed Heien in the backseat lying under a blanket. This obviously raised concerns, and after speaking with both men and finding that their stories didn’t seem to match, he requested permission to search the vehicle. Permission was granted to Sgt. Darisse, and the search turned up a bag with 54.2 grams of cocaine.

[In this instance, Darisse had “reasonable suspicion” to search the vehicle but not “probable cause.” Heien could have declined the search. For more information on the topic of “search and seizure” and your rights when being pulled over, click our previous post, Questionable Focus on Highway Interdiction Nets Billions to Law Enforcement]

After being indicted on two counts of trafficking cocaine, Heien filed a motion to suppress the evidence based on his claim that a Fourth Amendment violation had occurred because technically Sgt. Darisse was in the wrong for pulling them over. In what is considered an antiquated law dating back to earlier models of vehicles equipped with only one “stop lamp”, North Carolina–as with many other states–still has on the books a statute stating that essentially only one “stop lamp” is required for a vehicle.

Heien argued that even though one of the brake lights on the vehicle was broken, the other was still functioning. Therefore the traffic stop was not objectively reasonable. The North Carolina Court of Appeals agreed and reversed the trial court judgment. However, the North Carolina Supreme Court reversed this decision, stating that because the law was so antiquated and no one had really examined the statute in decades, the officer’s “mistake of the law” was reasonable. The case was sent back to the Court of Appeals who found no errors this time around with the trial court’s original judgment, but still expressed in the dissenting opinion that this raised questions of “fundamental unfairness” in regards to the fact that citizens traditionally aren’t allowed to use “ignorance of the law” as an excuse, so why should law enforcement be allowed this right?

Heien again went to the North Carolina Supreme Court, but the Court rejected his appeal. Now the case has found its way to the United States Supreme Court.

The Fourth Amendment, Exclusionary Rule and Good-Faith Exception

The Fourth Amendment protects against unreasonable searches and seizures, which is the question at hand in the case of Heien v. North Carolina. In his defense, Heien is citing the exclusionary rule, a legal principle which states that evidence obtained in violation of a defendant’s constitutional rights may be inadmissible in court.

The problem that Heien may encounter is the good-faith exception to the exclusionary rule. This essentially states that if an officer was acting on “good faith” and had reasons to believe his/her actions were legal (such as in Heien’s case), the exclusionary rule doesn’t apply.

The interesting thing about this case is that while there are three ways the case could be resolved under federal law–essentially stating that the stop was lawful and evidence will be admitted, the stop wasn’t lawful and evidence shouldn’t be admitted, or the stop wasn’t lawful but the good-faith exception will apply–the Supreme Court is really only deciding if a violation of the Fourth Amendment occurred. They are not addressing the exclusionary rule or good-faith exception.

In other words, while the Supreme Court may decide that the stop was indeed unlawful, that doesn’t mean the evidence obtained during the search won’t still be used against Heien.

Only time will tell what the Supreme Court will decide, but one thing seems certain: the case of Heien v. North Carolina is most likely far from closed. In addition, if the Supreme Court rules for the state, many concerns could be raised regarding the fact that “ignorance of the law” is an argument which has always been denied to regular citizens but apparently doesn’t apply to law enforcement.

Questionable Focus on Highway Interdiction Nets Billions to Cops

Questionable Highway Interdiction methods

Photo: 401(k) 2012

In a practice originally intended to hit organized crime where it hurts–in the wallet–a recent investigation by the Washington Post showed that highway interdiction, the practice of seizing contraband from motorists, seems to have converted into a slush fund for law enforcement agencies under the combined guise of civil forfeiture, the federal Equitable Sharing Program, and Homeland Security. It would seem that in many cases, this practice of highway interdiction, especially when it comes to the confiscation of cash, amounts to a Fourth Amendment violation and the methods being used to target certain vehicles a basic violation of privacy.

How Highway Interdiction Became an Apparent Cash-Grab

Civil asset forfeiture is nothing new. Advocates state that the nature of organized crime effectively keeps the proceeds from criminal activity safe from legal confiscation. So instead of going after the criminal first, in essence, the law sues “the object,” and the owner is a third-party claimant to the property [as opposed to criminal forfeiture where the person is convicted and the forfeiture is a form of penalty].

In civil forfeitures–which constitute approximately half of all forfeiture cases–the owner of the property at the time of confiscation doesn’t need to be judged guilty of a crime; the government need merely to prove that someone else other than the owner used the property as part of a crime.

In addition, the Equitable Sharing Program has also been around for some time. This is a program by the Justice Department which allows the proceeds from asset forfeiture to be deposited into Justice Department Asset Forfeiture Fund. After the feds take their portion, local police are able to take up to 80 percent of what the property is worth.

Here is where things get tricky. After 9/11, seemingly everything got thrown into one big pot in the interest in Homeland Security.  As security tightened down in the airports, criminals (and yes, terrorists) shied away from air travel and moved to the interstate highway system. Everyone from local officers to state troopers started acting more aggressively in their searches of motorists for suspicious people, drugs, and other contraband which they could confiscate without proof of a crime.

Cash has been the biggest issue at hand when it comes to unchecked highway interdiction. It was reported that since 2001, $2.5 billion has been seized without accusation of a crime or issuance of a warrant. While many of these cases have been disputed, most go unchallenged.

Where Supply Meets Demand Meets Potential Civil Violations

After the urging of the government to crack down more heavily on highway “crime,” many law enforcement officers sought additional training on exactly what they should be looking for. The Justice Department and Homeland Security stepped up, spending millions on police training, but this isn’t where most critics are concerned.

In addition to those departmental trainings, many private firms stepped up to take their part of the pie. One method of supposedly assisting with highway interdiction that is especially under the microscope is a private intelligence network known as Black Asphalt Electronic Networking & Notification System. It’s like social networking for law enforcement… with one exception. Apparently detailed reports are being shared across the nation about American motorists, whether criminals or just “suspect.” Some of this information includes Social Security numbers, identifying features and addresses.

An article from Slate.com has equated this new form of “law enforcement” more akin to bounty hunting and a serious invasion of privacy. In one incident, a Hispanic man was pulled over, but when the officer was unable to find anything incriminating, he still put out a message over one of these networking systems with all the information about the man and final message which stated, “Happy hunting.” Some of the officers on these networks have almost made it a game to see who can seize the most contraband, posting “trophy shots” on the network. According to the Washington Post report, some police departments even advocate highway interdiction as an effective method for raising revenue.

An online search for “ highway interdiction ” also proves this point. The second listing is for an officer who is promoting his book on the secrets of successful highway interdiction. The site includes quotes along the lines of “After I made my first bust, I never wanted to write a ticket again,” and the book offers chapters and tips on the difference between “probable cause” and “reasonable suspicion” [the cornerstones of carrying out a search without violating the Fourth Amendment] and the “top mistakes made my rookie officers,” one of which is probably informing a motorist of their actual rights in regards to searching their vehicle. Possibly recognizing the questionable nature of the content, the owner of the site had a huge disclaimer stating that his book was for “pro-law enforcement sources only,” stating that identification would be required upon purchase.

The Pattern of Highway Interdiction

It would appear that most highway interdictions follow a similar pattern. Motorists are pulled over for a minor violation and a warning or ticket is issued while the officer is actually looking for suspicious signs which will justify a warrantless search. Some of these signs or “indicators” of criminal activity include:

  • physical clues such as twitches, pulsing carotid arteries, perspiration, and clenched jaws, or if the driver attempts to get out of the vehicle upon being stopped
  • law enforcement or religious stickers or slogans on the vehicle or religious paraphernalia inside the vehicle
  • more than one cell phone or tools visible inside the vehicle
  • excessive air fresheners, tobacco use, cologne or perfume used to mask odor
  • rental car agreements
  • passengers who seem unfamiliar with each other or who have conflicting stories

Given these signs, an officer often has all he/she needs to move forward with attempting a search, and from there, the stories abound of law abiding citizens who had large amounts of cash on hand for perfectly good reasons and lost it as a result of this highway interdiction.

Of the multiple cash seizures made since 2001, only a sixth of them were legally challenged. While advocates might say this is a sign of guilt, given the cost of taking legal action against the government–a process which took more than a year in 40 percent of the cases–some may just chalk it off as an angry loss (even though of the cases challenged, almost half of the people had their money returned).

Know Your Rights

While the Fourth Amendment does protect you against “unreasonable search and seizure,” police officers also have the power to investigate based on suspicions. The key is to know some basic rights you have when you are pulled over to avoid possible unlawful highway interdiction.

  • You may only be detained as long as it takes to deal with the initial reason for your stop. After that, even though an officer may request further conversation, a motorist can decline and leave.
  • You can be briefly detained and questioned if there is “reasonable suspicion” that you were involved in a criminal activity. Less than “probable cause,” reasonable suspicion may include matching the description of a person of interest, dropping or attempting to hide something upon being pulled over, or acting nervous while being questioned. Simply asking if you are free to go does not constitute reasonable suspicion.
  • Reasonable suspicion isn’t enough to perform a search. Officers must ask for permission, and motorists may decline. Officers do not have to inform drivers of their right to refuse.
  • Probable cause can result in a search without motorist permission. Probable cause includes the sight and or smell of contraband. If an officer has probable cause to believe cash in the vehicle is related to criminal activity, they may seize it.

People are naturally uncomfortable around law enforcement officers, often just because they are afraid they will do something wrong, even if they hadn’t done anything wrong up to that point. Just remain calm, answer their questions, and know your rights, and everything should work out fine.