Recently there has been a renewed interest in recording police activity. Many of the viral videos of individuals interactions with police have made their way through the courts giving judges and juries headaches because each case is so difficult and unique. These cases have created resurgent interest in an individual’s rights with respect to police.
California Penal Code Section 148 (g) and Penal Code Section 69 (b) codify a persons right to record police. These allow anyone to photograph or record video or audio footage of police while the officer is in a public place and the person that is making the recording is in a place he or she has the right to be. Section 148 adds one extra subsection that I believe is important to highlight for 4th Amendment Issues.
The 4th Amendment guarantees an individuals right against unlawful searches and seizures by the government. This often is referred to the warrant requirement and alternatively is the hook that keeps many watching Law & Order to see if Ice-T arrests the bad guy the right way or if he will get away on a technicality.
But, there is one exception to the warrant requirement that may be applicable to recording police interaction and that is the Terry Stop or “Stop and Frisk.” Police may detain a person for an investigative purpose if they have a “reasonable suspicion” of criminal activity. The detention must be no longer than necessary to verify the suspicion and if the police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons.
This exception makes sense because it allows police officers to make investigations safer for themselves and the general public. May the fact a person records police in public serve as reasonable suspicion such that the person can be searched by law enforcement?
No. PC 148 (g) states the fact of taking a picture or recording does not constitute reasonable suspicion to detain the person or probable cause to arrest a person. Now, to be clear it has never been illegal to record police in public and it is our right; so long as our right does not interfere with the officer’s job because although the general public has rights let us not forget the men and women of law enforcement are out there protecting our neighborhoods and we ought to treat them respectfully and be mindful of the danger they willingly place themselves in everyday for our safety.