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.