Massachusetts' Top Court Says Police Need Warrants To Search Body Camera Recordings

from the no-rummaging-through-the-servers dept

Body-worn cameras were supposed to usher in a new era of police accountability. That hasn't happened. At best, they've generated a ton of additional footage of interactions and arrests that may prove valuable to criminal defendants and people filing civil rights lawsuits. "May" is the operative word. Cops still control the footage, which limits public access and increases the odds that unflattering/unhelpful (to police) footage rarely ends up in the hands of the public. The end result is that prosecutors have been the biggest beneficiary of this so-called accountability tech.

A case in Massachusetts has raised some interesting constitutional questions about body cameras and recordings. Officers responding to a domestic violence call recorded the interior of a home with their body cameras. Weeks after that call, they accessed the footage to find corroborating evidence that was used to apply for a search warrant. One of these is a constitutional violation, Massachusetts' Supreme Judicial Court has ruled. (via Courthouse News)

Here's what happened during that domestic disturbance call, as recounted in the opinion [PDF]:

After the first responding officers had entered the apartment, another officer arrived who was equipped with a bodyworn camera, which recorded the areas of the home through which he moved, as well as his interactions with the defendant, his sister, and others in the apartment, including a number of police officers. The video footage obtained shows that when the officer arrived at the home, the door was ajar; he entered the living room, where at least two other officers were present…

The officer wearing the camera walked past the defendant's sister and ascended the stairs. Standing at the top of the staircase, he spoke with the defendant, who was standing at the threshold of a bedroom. Through the open bedroom door, the camera captured a woman in the background. The woman was zipping her coat. Floral-printed curtains adorned the bedroom window just behind the area where the woman was dressing.

The sister shouted from downstairs, and the defendant yelled "shut up." He explained to the officer with the camera that the girlfriend could not be rushed, as she was getting dressed, but that they would leave shortly. Once dressed, the girlfriend and the defendant moved toward the stairs; they were stopped by the officer.

The "floral-printed curtains" would later prove instrumental in building a case against the defendant. The officer who uploaded the photo informed detectives about its existence, since the defendant was one of several suspects being investigated by the Boston PD's gang task force. He was already under surveillance by the BPD, with a couple of officers managing to successfully "friend" the defendant on Facebook, giving them access to his posts.

Here's where the distinctive curtains resurfaced:

Two weeks after the domestic disturbance call, the detective noticed that the defendant had posted what the officer believed to be a recently created video recording of the defendant holding a firearm in a bedroom, with floral-printed curtains visible in the background. After he saw the posted recording, the detective retrieved the DVD containing the body-worn camera footage from his colleague and reviewed it.

Peering into the defendant's home caught on the body-worn camera footage, the detective saw the defendant's girlfriend zipping her coat in the defendant's bedroom, while standing next to what the detective believed were the same distinctive curtains visible in the posted video recording. This was significant to the detective because it established the location of the posted video recording that had showed the defendant apparently holding a firearm.

Using this information gleaned from the BWC recording made two weeks earlier, detectives obtained a search warrant for home, specifically noting the curtains seen in both the social media post and the officer's camera footage. The house was searched, resulting in the discovery of weapons and some marijuana.

The defendant argued the initial recording violated his Fourth Amendment rights. The court disagrees, noting that the recording of areas in plain view of the officer merely duplicated what the officer could see with his own eyes.

We conclude that, where, as here, the officer was lawfully present in the home and the body-worn camera captured only the areas and items in the plain view of the officer as he or she traversed the home, in a manner consistent with the reasons for the officer's lawful presence, the recording is not a search in the constitutional sense and does not violate the Fourth Amendment or art. 14. This conclusion follows from our jurisprudence regarding the photographic preservation of a crime scene.

Even though a recording is more "permanent" than an officer's memory, there's still no violation. Precedent says officers can document crime scenes and domestic disturbances fall on the long list of criminal acts officers are sent to respond to. The recording was not a violation, even though it could be accessed at any point past its creation by investigators.

However, the court says viewing the footage a few weeks later was unconstitutional.

[W]e conclude that while the plain view observation doctrine extended to the officer's recording of his interactions in the defendant's home in response to the domestic disturbance call, that doctrine cannot be stretched to sanction the subsequent review of the footage for reasons unrelated to the call.

The 21st century is no time to bring back some of the worst aspects of British rule, says the court.

The ability of police officers, at any later point, to trawl through video footage to look for evidence of crimes unrelated to the officers' lawful presence in the home when they were responding to a call for assistance is the virtual equivalent of a general warrant.

The BPD can't do that without a warrant, given the lack of connection between the domestic disturbance and any suspected gun/drug criminal activity.

Moreover, the subsequent review of the footage in connection with the unrelated investigation of the defendant falls outside the rationale justifying the recording in the first instance. Such a review is divorced from protecting police officers from false accusations of misconduct, ensuring police accountability, or preserving a record of police-civilian interaction. Instead, the use of body-worn camera footage in this manner, after the fact, for investigatory purposes unrelated to the domestic disturbance call, had the effect of allowing the gang unit detective to peer into the defendant's home for evidence to support an unrelated criminal investigation.

The government tried to salvage its warrantless search by claiming it was only a very small unconstitutional search. This argument is rejected as well.

[T]he Commonwealth contends that the BPD review of the body-camera footage was not extensive, and that the review was targeted at one specific detail, the floral-printed curtains in the defendant's bedroom. But the constitutional protection against unreasonable, warrantless searches is no less applicable to a targeted search than it is to a more extensive one.

With that detail removed from the warrant, the warrant most likely does not contain enough probable cause to justify the search of the house. The motion to suppress is granted and the case is kicked back down to the lower court, which will give the Boston PD one more chance to salvage its unconstitutionally gotten gains. But the line is clear. Recordings: good. Digging into saved recordings to aid in unrelated investigations: no good… not without a warrant.

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Filed Under: 4th amendment, body cameras, massachusetts, recordings, warrant


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  • identicon
    Bruce C., 20 Sep 2021 @ 4:24pm

    "But the line is clear. Recordings: good. Digging into saved recordings to aid in unrelated investigations: no good… not without a warrant."... I'd add: in cases where a warrant would have been required in the first place, like inside one's home. Digging into bodycam recordings of public places is most likely still fair game.

    reply to this | link to this | view in chronology ]

  • icon
    xaxxon (profile), 20 Sep 2021 @ 4:51pm

    You can ask if anyone remembers seeing floral curtains, right?

    I'm confused how one part of this says "recordings/photos are not any different than the officer being there and remembering what he sees" yet it says that you can't look through them.

    But what if someone sent out an email saying "hey, did anyone see floral curtains anywhere?" and someone says "yes, I remember that." That should be the same as looking through recordings of where the officer has been based on the assertions in the first part, right?

    reply to this | link to this | view in chronology ]

    • icon
      xaxxon (profile), 20 Sep 2021 @ 5:02pm

      Re: You can ask if anyone remembers seeing floral curtains, righ

      additionally couldn't a member of the public request the video under FOIA without a warrant?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Sep 2021 @ 5:50pm

      Re: You can ask if anyone remembers seeing floral curtains, righ

      That should be the same as looking through recordings of where the officer has been based on the assertions in the first part, right?

      Not if you hold any respect for what the 4th Amendment protects. Otherwise, what is to stop LE from using any of the plethora of reasons they can enter your home without a warrant simply to builbuild up a video database for future reference.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Sep 2021 @ 6:05pm

        Re: Re: You can ask if anyone remembers seeing floral curtains,

        What's stopping them is all the things that stop them.

        And they can look around and use that, so that's the whole point. if they are equated in one part and not in another, then that doesn't make sense.

        reply to this | link to this | view in chronology ]

    • icon
      TKnarr (profile), 20 Sep 2021 @ 7:30pm

      Re: You can ask if anyone remembers seeing floral curtains, righ

      Not quite. Someone remembering an item isn't the same thing as finding the actual item during a search. But that "Yes, I remember those curtains." should be sufficient probable-cause to justify a warrant to review the (lawfully-obtained) footage for confirmation, which would've rendered the evidence admissible instead of it being thrown out.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Sep 2021 @ 8:48am

        Re: Re: You can ask if anyone remembers seeing floral curtains,

        "Yes, I remember those curtains." should be sufficient probable-cause to justify a warrant to review the (lawfully-obtained) footage for confirmation

        but that's pretty much what happened. the detective noticed the curtains in a video posted online. remembering that he had seen them before, he retrieved the relevant footage for confirmation

        i don't see why they should need a warrant to look at footage they already legally obtained. what liberties are being protected by making them apply for a warrant? if getting that warrant is as simple as saying "i remember seeing something in that footage, can i check again" then their application will always be approved, so the only thing this does is waste a little time

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Sep 2021 @ 4:51pm

    I bet they could have gotten the warrant if they had asked.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 20 Sep 2021 @ 6:28pm

      Re:

      Quite likely which is one of major reasons stories about warrants(specifically police not getting them) are so often insanely stupid, as if they could be bothered to spend even the slightest bit of time and effort the relevant cases would have been saved but because work is just too much to expect from so many police you get what would have been slam-dunk convictions rightly thrown out.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Sep 2021 @ 11:19pm

        Re: Re:

        The police have become spoiled with their liberal usage of the "It's always easier to ask for forgiveness than permission" excuse. It's high time that this cut corner be... uncut?

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Sep 2021 @ 11:36am

    Now how about those old DNA samples?

    Police have been building up a huge database of American DNA from arrested defendants. Does this also imply they can't go back to that without a specific warrant for any one given sample to test?

    True, I'm sure that these databases, so useful for spotting and executing American spies if their relatives have ever been arrested, can simply be purchased from some foreign entrepreneur by now. The police could search that without a warrant...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Sep 2021 @ 2:29am

    You Can Do Anything, Just Don't Step On...

    I just saw this story ( https://theweek.com/law-and-order/1005294/distinctive-navy-blue-shoes-helped-the-fbi-track-down-a-ja n-6-capitol-riot ) and was reminded of this again. Floral shower curtains and blue suede shoes are the linchpins of cases. Incidental video gets pictures of these items. In some cases (inside the Capitol) searching a person's "person" this way gets tape that can used indefinitely, other times not. Either way, it seems archaic. How many consumer goods RFID tags are being tracked from supermarket, delivery truck, even that spy printer in your bedroom with an RFID reader to make sure that you can't print subversive literature without built-in tracking dots, charging you a price higher per gram than gold for the privilege? For that matter, how many patterns of quantum dots, each absorbing at only one frequency, are being tracked from fancy surveillance cameras as people wander into buildings? How many social media videos and phone call recordings are indexed in exabyte NSA facilities according to the day and location you bought every item in each frame?

    reply to this | link to this | view in chronology ]


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