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. When photos are taken of law enforcement officers the taking of them is a first amendment act because the intention it to publish them and because it is a notice to the officers that their conduct will be reviewed. 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 targeted could then be prohibited as incitement but using the photos in criminal defense would then be a first amendment right.

  2. Can’t you argue that taking photos is a First Amendment Right and therefore there must be a government purpose for prohibiting it? Personally I love the idea of technology and reporting i.e. pictures and the Internet saving us from oppression.

  3. @lottakatz: The same thing has happened to me. I had to call an ambulance when someone experienced chest pains in my home. Two officers arrived with the ambulance, and they did not spend their time protecting the EMT’s. They were clearly scanning the room for a sign of illegal activity, like drugs out in the open. My temptation at the time was to refuse them entrance, but I think that would have been both futile and pissed them off. I’m not sure what the law is or would be in that situation.

  4. I think that some of the cases in which teens died of alcohol poisoning their concern about getting in trouble led them to defer calling for help.

  5. Alan:

    if you step outside you negate the need to search your residence incident to arrest. I’d happily pay the $25.00 disorderly fine, rather than subject my premises to a fishing expedition. United States v. Rabinowitz, 339 U.S. 56 (1950) and Chimel v. California, 395 U.S. 752 (1969); c.f. Maryland v. Buie, 494 U.S. 325 (1990).

  6. Roland Darby:

    Good work, counselor — in every sense of the word “good.”

  7. Swarthmore Mom,
    You both have my permission to sneak across the border and rejoin society again. Of course, you don’t have to come to Illinois. At least not until the Blago mess is done!

  8. I get to leave before AY does rafflaw. He is a native Texan. I am not. I don’t think I want to go back to Illinois though.

  9. Lotta,
    that is an interesting approach for the police to enter with the paramedics. I have seen the police protecting the paramedics in bad areas before, but never going into the house uninvited.
    AY,
    This is just one more example that it is time for you to leave Texas!

  10. Here in St. Louis County police ride along with all EMS calls now; you call 911 and when the EMS parade gets through your door there is a policeman with them. This happened to me a cople of weeks ago and I asked what police were doing here (in my living room) as I had not called for police assistance.

    I was told it’s the new, standard procedure; they’re part of all EMS response calls to prevent any problems/crimes against EMS employees. He went back outside and stood on the porch almost immediately after my asking him what he were doing in my house but man, they were in the house before I even registered who was coming in. I don’t like this policy at all and need to call the County government center to find out what is going on. Does anyone else have any experience with this kind of thing?

  11. There were some instances in which professional courtesy involved refusing to show up when officers beat up their girlfriends — somewhat similar to what is happening w governor of ny Patterson

  12. AJs-I agree. Officer willingness to come forward seems to range from those who will initiate a report to those who will write truthful reports if required to those will will refuse to sign off on untruthful reports to those who will lie. If you search the terms “professional courtesy” and “law enforcement” you can see how much pressure can be brought to bear as young officers’ learn the boundaries of their jobs. There used to be a web site that amazed me with the level of vitriol towards officers who failed to provide expected protection in minor matters. (One that particularly stuck with me was an officer who was indignant that someone had dared arrest his son for drunk driving–instead of just taking him home–obviously not a minor matter) That pressure has to have an affect on officers.

  13. I met someone who was in Auschwitz and that raised my sensitivity to the issues of extrajudicial incarceration. I think that what happened in Germany is that there were many Jewish lawyers but they didn’t support PRO SE rights. Then all Jews lost their law licenses. There is a movie called Judgment at Nuremberg about this
    http://en.wikipedia.org/wiki/Judgment_at_Nuremberg. After WWII, the UN adopted the INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS http://www.hrweb.org/legal/cpr.html and it prohibits countries from imprisoning people for acts that are not considered criminal in international law. President Nixon signed the NonDetention Act 18 USC section 4001 which prohibits detention of U.S. citizens by their government without a statutory basis, which is what happened to me. There really is no risk of the courts being overrun by vexatious pro se litigants since it is impossible to be vexatious without making fraudulent representations that would be the basis for impeachment. GAO access keeps records of proposed legislation and there is no record of any vexatious litigant legislation even being proposed. I have been doing a search of the statistical record of pro se litigants winning when trying to get damages outside of small claims court. I searched on Caseclerk.com on winning pro se litigant, successful pro se litigant, pro se litigant won etc and I contacted the National Association of Pro Se Litigants but found only 4 winning pro se litigants since 1970 outside of small claims court. Over 20,000 non prisoner pro ses file complaints in federal court alone. Many of those cases have to do with unlawful arrest and malicious prosecution. http://en.wikipedia.org/wiki/Pro_se_legal_representation_in_the_United_States

  14. I’m not really that interested, but thanks for the clarification.

  15. Dear “buddha is laughing”

    I was imprisoned without a criminal charge. I wasn’t arraigned. Engaging in pro se litigation isn’t a crime, with or without permission. i wasn’t accused of perjury. If you are that interested, you can use PACER to go to D of Col federal court 09-=0562. I filed some exhibits there w amended complaint doc 7-1. You see there is a federal docket report marked criminal docket but on opening pending and terminated charges it says “none”. Then there are some responses from FOIA requests to DOJ where it says that the US Attorneys in Colorado and Wisconsin where I was imprisoned didn’t open records of me. In other documents in that case there is a transcript in which the Assistant U.S. Attorney for Western Wisconsin appeared at a hearing and said that the government isn’t a part of this. After that I was detained for another 22 days. There is also a court filing in which he says he didn’t know of any criminal charge against me. If you search on PACER in Colorado you will see that there is no criminal docket there for me either. Here is another link:
    http://steamboatsprings.net/sites/default/files/2005/09/06/ccmn0906.pdf

  16. @blhlls – Thanks for the info. It is unfortunate that the majority of ‘good’ cops don’t speak out more harshly against the ‘bad’ ones. If I was aware of someone at my firm who routinely misled clients, broke the law, and generally was a terrible representation of our organization and I did not speak up, I would no doubt be terminated when his misdeeds came to light. In some cases I could also be subject to criminal and penalties and likely civil damages under my fiduciary responsibilities if I did not speak up as well. It is presumed you are a co-conspirator and just as guilty when you knowingly do not come forward with that type of information. Why doesn’t the same accountability extend to LEOs? It should.

  17. Yes, some officers in Texas presume that they can arrest you in a bar for Public Intoxication. I kid you not. They arrested a man in his own front yard 355′ set back for Public Intoxication. He has his music too loud and a neighbor complained.

  18. As an attorney representing a law enforcement agency in litigation, and also representing that same agency in disciplinary actions against officers, I can tell you that I want tapes and photographs. I do believe that most of our officers are doing a good job in an area where making life miserable for law enforcement officers is considered entertainment. That makes being able to get rid of those officers who are unable to maintain their composure and control that much more important. However, disciplining or firing officers is not just a matter of deciding the conduct was improper and issuing a notice. Officers are entitled to a hearing before an Administrative Law Judge who may well give an officer the benefit of the doubt. If the officer loses at that level, he can bring the matter before a Superior Court Judge, who may well give the officer the benefit of the doubt. We have had to return officers to duty in spite of a strong belief in their lack of fitness for the job because an ALJ or Superior Court Judge accepted the word of the officer of the word of the complaining witness.

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