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.
The citizens of Seeley, Texas need to take a long hard look at their police department, which seems to have morphed into a home invasion gang, and their prosecutors who appear to be acting as god-fathers to the cop-gang.
To all lawyers who posted on this thread:
Very useful info which I will pass on to my family and friends.
Thank you
friends were not guilty of and the officers knew it. It was at that point I learned that you cannot trust officers… they are not there to help you, only to help themselves.
@TomMil – I have sat giving a deposition to officers after a tragic event in college that involved friends of mine and listened to how the officers repeatedly lied to me and others trying to get people to admit to things that were not true. It worked out well for me, but not so much for a few of my friends who eventually were found guilty of completely bogus charges – charges that my
Wait… he was charged with public intoxication while in his own home? From the story above, it sounds like the man charged was on his property the whole time the officer was there? How do you have ‘public intoxication’ when you are in your own home?
As for allowing cops in or going outside… I believe that most cops are well-intended, but there are more than enough to distrust the whole lot just to be safe. Beyond that, I would never willfully allow any man or woman in to my home around my family or pets who are openly carrying and displaying an assortment of deadly weapons – especially someone who belongs to an organization that routinely uses them.
Perhaps some of the smarter legal-types on here could tell me – If I have a security notice sign that indicates that the premises are being monitored and that monitoring may include camers or something to that affect… has that satisfied the disclosure to record someone on your property such as this officer entering the house?
mespo, I do the exact same thing with my kids and have had arguments with my ex-wife who insists on characterizing this as teaching them disrespect for the police. Explaining otherwise is like talking to a wall. My favorite moment was when she complained to her matrimonial lawyer (who is also a criminal defense attorney) about it and he said, “That’s what I tell my kids.”
Buddah, it sounds like she was jailed for contempt which can be civil and not criminal but the post is somewhat incoherent.
What I don’t get is, if one is doing nothing illegal, why would one not want to be video tapped performing a public function where physical contact with the public is possible? I suspect it is because they like the OPTION of doing something illegal. It is much easier to order events on the police report when they don’t conflict with video and audio footage.
Here’s some chilling video of a raid on a medical marijuana facility in Orange County, California last year. No matter your opinion the topic, why would the FIRST order of business be to cover up the cameras? Frankly, if I was doing my job correctly and legally I would WANT the evidence to protect myself against any claims, especially when dealing with member of the public. Anyway, here’s the video (camera covering starts at 2:10):
FYI,
If you are driving down the road and you get pulled over, pull over at the earliest safest convenience. If you are like I and you do not wear a seat belt, get you window down stick your hands out and slowly exist the vehicle. It is then a proof problem for the officer to write you a ticket for lack of a seat belt. The following out comes occur, under MI v Long the reach of the vehicle is not a question. If the officer insists that you get back in, they knew you were out of the vehicle so how can they write a ticket for such nonsense to start with, oh yeah power. Glad most have dash cams……
Roland,
Good work, especially for what I hear about the Public Defenders office. I hope you were retained, if not I know that you feel even better for a victory for the wee one.
@Roland Darby: Good work. Congratulations. Hopefully Olvera will get something to recoup his attorney fees and damage to his life. Meanwhile though, this kind of abuse of police power is likely to continue. A locked door remains your best protection.
“I don’t have a criminal record.”
Is that so? That’s not what you’ve said before. Contrast this with your earlier statement, kay.
“I was sent to jail for engaging in pro se litigation and while I was there I read part of the Bible.”
http://jonathanturley.org/2010/06/22/wanted-decoy-jews/#comment-140155
So which is it?
Good way to take care of your kids Mespo.
I am the lawyer that filed this suit. The jury took ten minutes to acquit him and many told me five of that was going to the bathroom.
Roland
@kay sieverding: your story gives another very good reason why you should never step outside of your home when the police knock on the door: once outside, you are subject to a “protective” pat frisk, and are much easier to arrest or detain. The inviolate rule: if the police want to come in, or want you to come out, they need a warrant.
P.S. If you do not have an outside screen door that you always keep locked, then put a chain on your inner door, i.e., the type of chain often used on hotel and apartment doors that allows the door to be opened only a few inches.
The Verona WI police came to my home without a warrant and rang the doorbell and asked my son for me. I came to the door and went outside where they forced me into their vehicle. Then they called the US Marshals to ask if they had a valid warrant for me. This is in the police report. I was not charged with a crime. I don’t have a criminal record. Anyway, they also searched my pockets and asked if I had contraband, which I didn’t. Since I am a little overweight my jeans were a little tight. I had previously been mowing the lawn and was wearing old jeans. I thought later that maybe they would have tried to put drugs into my pants but couldn’t because they were so tight.
Oh no, stepping outside is always a bad idea, as shown by the Gates incident–once Gates was outside, he was subject to arrest for disorderly conduct. You should keep yourself inside your own home, behind a locked door.
The easiest solution to avoid all the architectural precautions is to step outside and immediately invoke your right to counsel and privilege against self-incrimination and then refuse to answer any more questions. There is no duty of cooperation save in an emergency, and why anyone would engage with a person so obviously bent on damaging their own well-being is a mystery to me. My kids carry a business card of mine and they are told to tell the officer their name and then to politely ask if they can hand the business card to the officer. They are then told to ask permission to call me. They say nothing more except that they want to speak with their attorney before answering any more questions. Sounds a little Geneva Convention-esque but I like it.
This kinda repeats the lesson of the Gates arrest in Cambridge, MA, specifically: never open your door for the police. If your home has an outside screen door, it should be kept locked so when the police knock on your door, you can open the inner door to speak with them without opening the outer door, thereby keeping a locked barrier between the police and your home so they cannot invite themselves in.
You just gotta love Texas. Seely that is….