4th Amendment and Police Body Worn Cameras

Police Body Cameras: A tool to keep officers accountable and the 4^th Amendment Implications and Issues

It is a well-known fact and it has been advertised in the media that in the last couple of years many police departments across the country started to use body worn cameras as a tool to keep officers and the public accountable and to ensure a higher quality of policing. Boone Police department is one of the firs law enforcement agencies in the area that started using body worn cameras several years ago. Boone Police department is located 1500 Blowing Rock Rd in Boone, North Carolina, and servers the Boone community that includes two major groups the local residents and the Appalachian State University students. With a jurisdiction of approximately 6.07sq miles Boone Police Department employs 37 sworn police officers and 11 civilians. According to their mission statement Boone PD is committed to providing the highest quality of police service to the visitors and residents of Boone.

During my internship with the Boone PD I had the opportunity to see and learn how a law enforcement agency operates. I was assigned to the patrol division and that is where I spent most of my time. During the ride along I had the chance to observe the officer respond to different types of calls, anything from a welfare check and ending with motor vehicle accidents, larceny investigations and robberies. Although interns are encouraged to engage in the daily activities, there is always a legal limit, it depends on the circumstances, and it does not apply just to the interns, it usually applies to any non-sworn civilian. While on patrol I learned the most about police work and criminal procedures just by being there on what we can call the front line of a law enforcement agency. It was a great learning experience because after three years of classwork at AppState, I had the chance to actually observe and contemplate over the things that I have learned in my CJ classes.

Research

Literature Review

In Ariel (2016), the author introduces the idea that two triggers for a social change and the way we review the interactions between the police and the citizens were a series of tragic events such as the death of Michael Brown in Ferguson  and the shooting of Walter Scott in North Charleston (Ariel, 2016). Later on, it was found that some other authors supported the same idea in their research. Gonzales (2017) introduces the “Ferguson Effect” and explains the anti-police movement by using Brown`s case in order to explain the goals of this movement. Also, Fan (2017) introduces the cases of Keith Scott who died at an apartment complex by accident. His interaction was with two CMPD officers in plain clothes. The CMPD stated that they clearly and loudly told Scott to drop his gun but he failed to do so. Paul O`Neal, who was shot in Chicago is another victim of police misconduct. O`Neal got shot because the officer saw him reaching into his waistband. The cases above support the idea that interactions that resulted in a lethal outcome are a critical factor that made society demand a reform in how we keep police accountable (Fan, 2017).

The actual data and some results that show the possibility of some improvements in keeping police accountable are provided in Ariel (2016), and it is described as the “Rialto experiment.” This is almost the only experiment of such complexity that is meant to study the influence that the body cameras have on the officers’ decision making. Although plenty of data shows that body cameras reduce the likelihood of an officer using unreasonable force, Ariel (2016) does not provide a specific answer on the fact that the body cameras influence policing in a good or bad way. On the other hand, Lippman (2017) makes the argument that officers often intentionally misuse force because they believe that no one is watching (Lippman, 2017).   Ray & Marsh (2017) supports the same idea that the use of body cameras influences policing positively, especially the interaction with minorities since they are more likely to be the victims of police brutality (Ray & Marsh, 2017).

Freund (2015) studied the body camera issue and the 4th amendment implications by comparing them to other surveillance devices. In his study, he focused on dashboard camera recordings and the surveillance cameras. He later found that the main difference is that where those two devices are usually placed, an ordinary citizen can not have a reasonable expectation of privacy (Freund, 2015).

Nielsen (2016) researched the 4th amendment implications based on the two tests, the common law trespass and the reasonable expectation of privacy test. It was found out since there is no physical trespass involved, then the standard that should be applied is the one that deals with reasonable individual expectations of privacy (Nielsen, 2016).

In his research Pavletic (2018) focuses exclusively on one type of surveillance, aerial surveillance. He found that the length of the recording is one of the critical factors in deciding on whether a recording is too intrusive or not.

Reardon (2013) and Rodman (2016) both did their research on recordings of police officers made by ordinary citizens and the 4th amendment protection that the officers have. Reardon (2013) states that by monitoring the activity of the government officials, citizens that use the recording devices exercise their first amendment right. However, Zurcher v. Stanford Daily permits the seizure of the devices that have been used to record arrests. This ensures the 4th amendment rights of one individual but violates the 1st amendment rights of another (Reardon, 2013).

Law enforcement has always had issues with keeping the police officers accountable and limiting the officer’s discretion. According to Ariel (2016), the necessity for reform appeared a  few years ago when a series of events happened that triggered the public opinion to ask for a change and the lawmakers to come up with a solution. Two of the most significant events were the deaths of Eric Garner and Michael Brown. Both of these people died from their interaction with law enforcement. Both officers that killed Brown and Garner did not face any charges, even though there were witnesses and even video footage from the incident (Ariel, 2016, p. 732). These two events had a significant impact on the society and triggered the public to demand body cameras for police officers. Knowing how body cameras can influence the police-citizen interactions is extremely important in order to understand better if it is worth taking someone’s rights in order to benefit public safety.  

The research by Nielsen (2016) supports the argument that the theory of effectiveness of body cameras is relatively straightforward. The footage from the officer’s body camera should provide footage and give the objective evidence of the incident, but most important, it will let the individuals view the event from the officer’s perspective (Nielsen, 2016). Having body cameras may seem like the answer to all the questions, but there are many issues with them as well.

 One of the most significant issues is how do we use those recordings without violating the 4th amendment rights of the citizens? According to Freund (2015) citizens benefit from 4th amendment protection not only while being at home but whenever they are in a public area as well (Freund, 2015, p. 116). The 4th amendment protects citizens from unreasonable search and seizure. However, is recording someone a search? How to apply the common law test for trespassing and the reasonable expectation of privacy test? This might be a simple question under normal circumstances. But the real issues appears when we try to answer it from the perspective of using a body camera and how intrusive can law enforcement be when recording someone.

Background: What triggered the need for body cameras?

A  few years ago a New York police officer killed Eric Garner by placing him in a chokehold for an extensive period. About the same time, another male named Michael Brown was killed in Ferguson, Missouri after his interaction with local police. Those events, as well as the death of Walter Scott, resulted in a series of protests in 2014 (Ariel, 2016, p. 732). Those protests started a phenomenon called the “Ferguson Effect.” The “Ferguson Effect” usually happens after a highly publicized event of an officer misusing deadly force against minority citizens. Moreover, as a result, it makes the police officers ignore their proactive duties and manifest a total unwillingness to perform any law enforcement activity in the African-American community. All this results in a chronic disconnect between community and police (Gonzales, 2017, p.313 ). All those events together resulted in the Obama administration arguing that the use of body cameras could be the reform needed in order to revitalize the police-public relations. Besides the statement, there was a campaign started as well, and its primary purpose was to equip the police departments across the country with body cameras. (Ariel, 2016, p. 732).

The Influence of Cameras on Policing

The use of cameras becomes more and more widespread across the country. Also, according to the data, it has been shown that the likelihood that an officer that does not have a body camera will use excessive force is twice as much as of the officer that is equipped with a body camera. According to one study, complaints against officers dropped from 0.7 per 1000 contacts down to 0.07 per 1000 contacts (Ariel, 2016, p.731). The same study, known as the “Rialto Experiment,” which was conducted in Rialto, California, showed that after using the body cameras, there was a 50%drop in the total number of incidents of use of force, and citizen complaints dropped by 90% compared with the previous year (Ariel, 2016, p.734).

Cameras benefit not only the citizens but the officers as well. It can be a great defense in case of a false complaint about the officer. Also besides protection, it can serve as an investigating and evidence collecting tool for the officer, especially in cases when the victim or the suspect refuses to testify, or in really stressful situations where the officer can not focus on everything that is going on at the scene (Freund, 2015, p.96).

Besides the positive aspects of the cameras, researchers believe that there will be some significant issues as well. For example, there are certain cases where the interaction between the officers and the public are going to be more efficient if not recorded. Moreover, some departments have argued that it is unnecessary to record the interactions that are not related to law enforcement or the performance of official duties in order to protect the ordinary citizens and bystanders (Freund, 2015, p.106). Another concern might be the 4th and 1st amendment implications and how to keep using devices and the footage in a manner that does not violate the rights of the citizens.

4th Amendment Limitations

The 4th Amendment states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” which ensures that citizens are protected under the constitution from the government. The real issue with this thought is that the amendment was written before modern technology, so how do we apply the term “unreasonable search” to the body cameras? According to Freund (2015), the limitations depend on where the camera is used. The most important is if it was made inside a private home or in public. The 4th amendment provides protection only against the physical search of the property, but the Ninth Circuit Court  stated that a video recording is more intrusive than just a physical search of the house, because it is oriented more towards the person rather than the property itself (Freund, 2015, p.120). What all this means is that a person has 4th amendment protection against police recordings as long as they can argue that they had a reasonable expectation of privacy. If a police officer obtains a search warrant, then a person cannot argue about their expectations of privacy on the searched property.

Another major issue is the 4th Amendment rights protection for the other officers that work the scene. Freund (2015) stated that in most of the cases the officers have no reasonable expectation of privacy when performing their official duties. However, in order to exclude any misunderstandings or any risks, every agency that decides to use body cameras should implement a well-structured policy that will keep track and let every officer know when and where the use of body cameras is allowed (Freund, 2015, p.126).

Numerous court cases are dealing with citizens’ rights and the use of technology. For example United States v. Knotts ruled that extensive monitoring of an individual without a warrant might be unconstitutional. In Florida v. Riley, the Supreme Court also suggested that although it was not unconstitutional to use air surveillance, it might be sometimes intrusive. In United States v. Jones, the Supreme Court found prolonged surveillance of a vehicle to be a search (Freund, 2015).

All this being said, footage from body cameras can technically fall under any of those rulings. The Constitution gives equal protection to everyone, no matter if the person is a government official or an ordinary citizen. In order to ensure that everyone’s rights are protected, police departments should implement clear policies that regulate the use of technology. So some people may ask how will an ordinary citizen know if the officer is following the procedures? The answer is relatively simple. The policy cannot go beyond what’s written in the constitutions. So as long as people have some general knowledge about their rights, it is impossible for any government official to violate them in any form, with or without the use of technology.

Another concern deals with the use of storage devices and servers where the footage collected is stored. According to Freund (2015), many criticize the state for not adapting to the modern technology. Mainly because those cameras do not just record what the officer sees but also record what’s around. Moreover, this material can be retained and be used for diverse purposes, not necessarily for legal purposes.   The storage issue brings up one of the most critical questions, how do we ensure that we store all this information safely? Also, that no one can gain access to the videos and make them public. There is considerable concern about letting every department store the evidence on a unique platform. The cameras made by Taser offer a unique platform for uploading the material. This gives every officer in the department the opportunity to see the recording. So at that point, there is nothing that can ensure privacy anymore.

Conclusion

There are many issues in our criminal justice system, especially the ones that deal with the law enforcement. The main problem is how do we keep the police officers accountable? It is a well-known fact that police have much discretion, and whenever it comes to limiting it, there are only a few legal ways to restrict it. The amount of discretion officers have in combination with authority, and lack of supervision often leads to incidents that unfortunately have fatal outcomes and, trigger a sense of hate and disrespect from the community towards the police. There have been implemented a series of campaigns that had the purpose of rehabilitating the image of the police, but unfortunately unsuccessful. After the protests in Ferguson, the Obama administration implemented a campaign meant to equip the police departments across the country with body cameras.     

As of today, there is very little research that might support the idea that the body cameras may improve the relationship between community and police. However, from what was presented in the Rialto experiment, since implementing the body cameras the use of force incidents dropped by 50%, and the number of citizen complaints decreased by 90%. The numbers might be not a general rule or an expected outcome for all the departments across the country. However, for sure shows that there is a chance of improvement and implementing the body cameras will benefit not only the public but also the police officers by protecting them from false complaints.

Something as simple as a recording device might seem like it is the answer to all the questions and indeed it appears that there is some improvement. However, any change we make in the criminal justice is usually followed by a series of legal issues. Body cameras are not an exception by any means. Some departments argue that in some cases it is better not to record the interactions between police and the community. The main argument is based on the belief that there is no need to register the communications that are made outside of the officer’s official duties.

The main issue with implementing body cameras is the 4th and 1st amendment implications. The 1st Amendment gives citizens the freedom of speech, and the 4th Amendment protects the citizens against unreasonable search and seizure. It is unclear at first what the use of body cameras and the amendments have in common and how do we apply them in the context of videotaping? In this context, it is a lot easier for an ordinary citizen to record a police officer than a police officer to have a body camera powered on. All because a citizen filming a police officer is the exercising of the 1st amendment rights. Although, officers have the right to seize the recording device in case it was used to record an arrest.

A police officer with a camera though cannot be considered a manifestation of the 1st amendment rights. According to our lawmakers and the Court System, an officer with a camera can be incredibly intrusive because of a series of reasons. First of all, citizens express one way or another their reasonable expectations of privacy. The Court made it clear that it is easier for an officer to record in a public place. The real question is how do officers record on private property? According to the research, an officer that has a valid warrant to search a property is allowed to record his interaction with the individual as long as it does not take too long or as long as the search is focused on the property and not on the individual.

Another issue deals with the proper storage of evidence. Also, raises the question of how do we store the evidence safely? Moreover, how do we make sure is not going to be used illegally. As of today, companies like Taser offer a unique platform where all the videos can be stored. It seems to be a safe solution, but the downside of it is that gives access to the footage to every single officer in the department. So what happens when you provide access to 50-100 people to the same content? The question of whether something stays private or not sound extremely hypocritical.

After implementing the body cameras for the departments across the country, there will be some positive outcomes for sure. It will benefit both, the public and the police officers as well. There are of course issues with that, but it is only because the constitution was written a long time ago, and there is not much room to interpret it from a technological perspective. There are some 4th Amendment implications, but as long as the police officers follow the guidelines that are already set in place and the internal department policies, there should be no adverse outcomes.

What is the answer to the question is it worth it to give up someones individual rights to benefit the general public? The answer is yes. Because everyone will have to benefit from the implementation of such technology. It will let the people keep officers accountable, and for sure there will be less lethal interactions or justice will be served if it happens to be so. Also, it will benefit the officers in the future too. Because people tend to behave much better when they know they are being recorded. And, in emergency situations, it will give the officer the opportunity to review the incident from another perspective. The Judicial System needs to take its time and find an interpretation of the constitution that will fit the today’s circumstances and the use of technology.

Integrating Research and Practice

Both Ariel (2016) and Gonzales (2017) agreed that the  several events described by officers of different police departments across the country using excessive force is exactly what triggered the demand for a reform on how we keep police officers accountable. Those events are the reason why many police departments started implementing the body worn cameras as a way to keep their officers accountable and as a way to improve the interaction between the police and community (Ariel, 2016; Gonzales, 2017).

Although, both researchers provided data and strong arguments the research and the reasoning for implementing body worn cameras does not apply to Boone PD as a general rule. From my observations and interviews with the staff, Boone PD did not have any excessive use of force incidents that ever caused any problems or conflicts between the department and the community.  The decision to implement the body worn cameras was a proactive step rather than reactive. The way that most officers see the cameras is as a tool rather than a way to limit their discretion or a way to control their actions.

Officers often use the body worn camera as an investigation and evidence collecting tool. Especially in stressful situations or in situations where the officer has a lot going on and cannot take the time to take notes (Freund, 2015, p.96). Officers at Boone PD often use their cameras for investigation purposes, and often review their camera footage before turning in a report or before testifying in court. All those steps are taken in order to ensure that the officers perform their duties at the highest standards possible. Reviewing the video footage often gives a better overview of the incident and gives the officer a lot more information than the regular notes. Just because of the way the human brain functions it is impossible to remember or pay attention to all the details or the surrounding at the scene of a call.

A body worn camera also protects the officers against false complaints. There are many cases where citizens feel like they did not get treated fair. Just because they got a ticket or did not get the outcome they expected. In some cases those citizens will file a complaint, and in almost all the cases it gets dismissed because there is video evidence of the intercourse.

The main concern that everyone seems to have with the body cameras is how do we record without violating anyone’s rights? And the other question is when, where, and how can officers record? Basically an officer can record anywhere he can legally be and anything that has been recorded during the interaction with an individual can be used as evidence later on. Some major questions arise around the recording of searches of personal properties such as the individual’s residence. And the main argument is that if the videotapes a search that it becomes oriented more towards the individual rather than the propriety. According to Freund(2015) and individual cannot claim a reasonable expectation of privacy during a house search if the officer obtained a valid search warrant.

My observations totally support the researchers, because the officers can legally record every encounter during the performance of their official duties, and if the fact of videotaping itself is considered a search than, a warrant it is not necessary because it falls under the implied consents. An officer can legally record anywhere he can legally be. 

According to the studies it is imperative for police departments that use body worn cameras to implement a clear policy that will regulate the use of the cameras in order to avoid any legal issues and in order to avoid any rights violation  and to make sure that he recordings do not become too intrusive. From what I have had observed so far there have never been any legal issues with Boone PD using their body worn cameras, and the outcomes from those cameras seem to have only a positive impact for both the officers and the ordinary citizens.

References

• Ariel, B. (2016). Police body cameras in large police departments. Journal of Criminal Law &   Criminology, 106(4), 729-768.
• Coudert, F., Butin, D., & Le Metayer, D. (2015). Body-worn cameras for police accountability: Opportunities and risks. Computer Law & Security Review, 31(6), 749-762. doi:10.1016/j.clsr.2015.09.002
• DeVito, C. (2011). I plead the fourth. Journal of Applied Security Research, 6(2), 247-254. doi:10.1080/19361610.2011.552007
• Fan, M. D. (2017). Missing police body camera videos: Remedies, evidentiary fairness, and automatic activation. Georgia Law Review, 52(1), 57-108.
• Freund, K. (2015). When cameras are rolling: Privacy implications of body-mounted cameras on police. Columbia Journal of Law & Social Problems, 49(1), 91-133.
• Gonzales, A. R., & Cochran, D. Q. (2017). Police-worn body cameras: An antidote to the “Ferguson Effect”? Missouri Law Review, 82(2), 299-337.
• Lippman, G. E. (2017). Police body cameras part II: will Body cameras improve policing in Florida? Florida Bar Journal, 91(7), 59-64.
• Meck, S. A. (2018). Focusing the lens of justice: The implementation of police body cameras is a management right,not a mandatory subject of collective bargaining. Florida Bar Journal, 92(4), 42-45.
• Morrison, C. M. (2017). Body camera obscura: The semiotics of police video. American Criminal Law Review, 54(3), 791-841.
• Nielsen. E. (2016). Fourth  amendment implications of police-worn body cameras.St. Mary’s Law Journal, 48(1), 115-143.
• Pavletic, J. (2018). The Fourth Amendment in the age of persistent aerial surveillance. Journal of Criminal Law & Criminology, 108(1), 171-196.
• Ray, R., Marsh, K., & Powelson, C. (2017). Can cameras stop the killings? Racial differences in perceptions of the effectiveness of body-worn cameras in police encounters. Sociological Forum, 321032-1050. doi:10.1111/socf.12359
• Reardon, C. M. (2013). Cell phones, police recording, and the intersection of the first and fourth amendments. Duke Law Journal, 63(3), 735-779.
• Rodman, A. (2016). Filming the police: An interference or a public service. St. Mary’s Law Journal, 48(1), 145-177.