Sixty-four percent of adults in the United States own smartphones, according to the Pew Research Center. Four years ago, about half that number did.
Many depend on their smartphones for online access, whether they’re applying for jobs, checking their bank accounts, paying bills, following breaking news events or sharing photos and videos. Never has it been this fast and easy to take a photo or video and share it online for everyone to see.
That brings us to a few important questions. When am I breaking the law with my smartphone? Can law enforcement simply take my phone from me?
The Indianapolis Star asked these questions of Indianapolis defense attorney Chris Eskew, who was a public defender for five years before opening his private practice. Eskew handles major felony cases, such as murder, sex crimes and drug-dealing charges.
Question: What are citizens’ rights when it comes to filming in public?
Answer: “As long as you’re in public and you’re not harassing anyone, you’re able to film what is going on around you. If you see police brutality or an individual committing a crime, you should be able to film that.
“It’s very important that when people are recording the police, they not interfere with officers’ duties. Keep distance and don’t interfere with what’s going on.”
Q: If I’m taking a video of a fight or of police activity, can law enforcement take my phone right then and there?
A: “Police cannot take or even open up anyone’s smartphone without a warrant. The Constitution protects us against illegal search and seizure.”
A settlement in a recent federal lawsuit filed against the city of Indianapolis and a few Indianapolis Metropolitan Police Department officers required the agency to adopt a policy prohibiting officers from taking away cellphones of civilians who are recording police actions as long as the civilians are not interfering, according to a report by The Indiana Lawyer.
Indianapolis resident Willie King sued the city and the officers who took away his cellphone while he was videotaping them arresting another man. King was awarded $200,000 in damages.
Q: Can police seize and search the phone of a person they have arrested or suspect of a crime?
A: “If you’re arrested and your phone is on you, they can take it, but they can’t search it without a warrant.”
A 2013 U.S. Supreme Court ruling in California held that police cannot search an arrested individual’s phone without a warrant. The case involves David Riley, who was arrested on allegations of possession of concealed and loaded firearms after a traffic stop. Police seized and searched Riley’s cellphone, where they found videos and text messages associating him with a street gang. They also found a picture of him standing in front of a car that police suspected had been involved in a recent shooting.
The evidence found in his phone resulted in criminal charges, including attempted murder. Riley was later convicted and sentenced. In his appeal, Riley argued that the evidence against him was obtained without a warrant and the search of his phone violated the Fourth Amendment. The California Court of Appeals upheld his conviction, and the California Supreme Court denied Riley’s petition for review.
The country’s highest court, however, ruled that the evidence against Riley was wrongly obtained. “Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple — get a warrant,” U.S. Supreme Court Chief Justice John Roberts wrote.
Q: Are amateur videos permissible in court as evidence?
A: “It can (be admitted as evidence), as long as proper evidentiary foundations are laid and someone can testify when it was taken. Every piece of evidence has to have evidentiary foundation.”
Q: Can a person who’s pulled over by police ask the officer if he or she can film the traffic stop?
A: “If you’re holding the phone, most officers will not be OK with that. You can ask, but they’ll probably say, ‘Keep your hands where I can see them.'”
Q: What is considered a public place?
A: “Any place you’re allowed to be, or, generally, people are allowed to be in. As far as criminal law is concerned, a public place is any place the general populace is invited to go. A courtroom is a public place. Lucas Oil Stadium is considered a public place even if it’s privately owned.
“It’s just a matter of, ‘Are you allowed to record where you are?’ In hospitals, you can take pictures and videos, until the hospital tells you you can’t.”