Texas Officer Charges Homeowner With “Illegal Photography” For Taking His Pictures During An Alleged Unlawful Entry

We have another case of a citizen arrested for photographing police. Francisco Olvera says that he was charged in Seeley, Texas with “illegal photography” when a police sergeant followed him into his own home, and he objected and took the officer’s photo with his cell phone.

We have seen “illegal photography” arrests in cities ranging from Boston to London where police are arresting citizens for simply photographing or videotaping them. We have also seen photographers hit with other charges after filming alleged abuses in states like Maryland.

Olvera has filed a civil rights complaint and is challenging Sealy Police Sgt. Justin Alderete’s charge of “illegal photography.”

Alderete was responding to a complaint of loud music coming from Olvera’s house and demanded identification. He then followed Olvera into his house when Olvera went to retrieve his identification. He is arguing that the officer had no authority to enter his home. When he did, Alderete saw a can of beer on the kitchen counter and charged him with public intoxication as well as illegal photography.

He was later acquitted on all charges, so prosecutors actually endorsed these charges and defended them in court in the the City of Sealy.

The illegal entry charge is analogous to the case of Washington v. Chrisman. Here are the facts:

An officer of the Washington State University police department observed a student (Overdahl) leave a dormitory carrying a bottle of gin; because Overdahl appeared to be under 21 (the minimum age allowable under Washington law for possession of alcoholic beverages), the officer stopped him and asked for identification. After Overdahl requested to retrieve his identification from his dormitory room, the officer accompanied him there and, while remaining in the open doorway watching Overdahl and his roommate (respondent), noticed what he believed to be marihuana seeds and a pipe lying on a desk in the room. The officer then entered the room, confirmed that the seeds were marihuana and determined that the pipe smelled of marihuana, and informed Overdahl and respondent of their rights under Miranda v. Arizona, 384 U.S. 436.

The Court ruled that was not a violation of the Fourth Amendment:

The “intrusion” in this case occurred when the officer, quite properly, followed Overdahl into a private area to a point from which he had unimpeded view of and access to the area’s contents and its occupants. His right to custodial control did not evaporate with his choice to hesitate briefly in the doorway rather than at some other vantage point inside the room. It cannot be gainsaid that the officer would have had unrestricted access to the room at the first indication that he was in danger, or that evidence might be destroyed — or even upon reassessment of the wisdom of permitting a distance between himself and Overdahl.

We therefore conclude that, regardless of where the officer was positioned with respect to the threshold, he did not abandon his right to be in the room whenever he considered it essential. Accordingly, he had the right to act as soon as he observed the seeds and pipe. *footnote 5 This is a classic instance of incriminating evidence found in plain view when a police officer, for unrelated but entirely legitimate reasons, obtains lawful access to an individual’s area of privacy. The Fourth Amendment does not prohibit seizure of evidence of criminal conduct found in these circumstances.

Obviously, the difference may be that the officer did not see any contraband before entering the home — though he can claim that he already had a basis for arrest (or at least reasonable suspicion) of public intoxication.

The increasing number of illegal photography cases are a great concern since such photos or videos are regularly the only independent proof of police misconduct.

Source: Houston Press.

44 thoughts on “Texas Officer Charges Homeowner With “Illegal Photography” For Taking His Pictures During An Alleged Unlawful Entry”

  1. Dear Dredd

    What really helps me is my Macintosh computer with the OSX operating system advanced search functions plus the great on-line search functions. These are much more rigorous than they were a few years ago. These let me off-lode part of my brain functions and expand my capability.

    I did make a typo in my post above but I am convinced it is correct, otherwise,

    When photos are taken of law enforcement officers the taking of them is a First Amendment Act because the individual’s intention when taking the photo was to publish them and also because even showing the camera is a notice to the officers that their conduct will be recorded and may be challenged. Thus, since it is a First Amendment Act, and

    Since its enactment, the First Amendment has permitted restrictions on a few historic categories of speech—including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—that “have never been thought to raise any Constitutional problem,” Chaplinsky v. New Hampshire, 315 U. S. 568, 572. …. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. New York v. Ferber, 458 U. S. 747, distinguished. Pp. 5–9. US. v. Stevens No. 08-769 (U.S. 04/20/2010)

    Publishing photos of officers to be criminally targeted could then be prohibited as incitement but using the photos in criminal defense or in civil litigation would then be a First Amendment Right. This is consistent with common sense notions of due process and criminal intent. It’s consistent with the now fairly common practice of installing video cameras on police cars to record vehicle stops and also the approved practice of recording interrogations. It protects everyone. Authorized law enforcement even has the capability of carrying small video cameras when involved with authorized law enforcement activities i.e. criminal law enforcement per 18 USC 1515(4) and the U.S. Attorneys Criminal Resource Manual Criminal Resources Manual 1729 (FN1). Such recordings could also be useful in a medical emergency too because there would be a record of whether someone stopped breathing, had a seizure, etc.

    There must be a reason why the First Amendment was made # 1. There are probably some interesting writings about that that Jonathan Turley probably knows.

    (FN1) See Dredd — I was just typing along and I remembered that argument so I typed in 1515 and it came up “§ 1515(4) motion”. So I clicked on that and the U.S. Attorney reference # was right there as was the quote for me to cut and paste:

    In US Attorneys Criminal Resource Manual 1729, USDOJ publishes:
    “The accepted meaning by Congress and by USDOJ of “law enforcement” means criminal law enforcement and of “offense” as criminal violation.” See US
    Attorneys Criminal Resource Manual 1729, 18 U.S.C. § 1515(4); 128 Cong. Rec. H8203 (daily ed. Sept. 30, 1982).

    According to USDOJ.gov website, this statement was reviewed in July 2009.

    18 USC Sec. 1515(4) states: “the term “law enforcement officer” means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant – (A) authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or (B) serving as a probation or pretrial services officer under this title;”

  2. Dredd,

    I think the new Enron deception will be clarified. You tell me what you think……

    Supreme Court Rolls Back a Law Born of Enron

    The timing is exquisite. First the Supreme Court of the United States provided a significant legal victory to the mastermind behind one of the greatest corporate frauds in American history. Next the court may throw out the law that Congress passed to reform corporate America — a law inspired by that very fraud.

    The Roberts’ court might just as well be called “Roberts, Scalia, Thomas, Alito and Kennedy LLP.” They serve their clients well.


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