Tag Archives: video

A Real-Time Reminder of the Value of Police Cameras

I was able to get back into a courtroom for a socially distanced trial this week. It was my first since the pandemic hit, and quite a different experience, between physical distancing and the clear face masks that were provided so that we could see the faces of the jurors and the witnesses. We got a not guilty verdict for my client’s DUI, which was a huge win for him, and a relief to be able to move past the case now that it was done. And it was made easier for us since there was no video.
I’ve talked about the failure of many law enforcement agencies to provide regular video recording of their citizen interactions and arrests, including just recently. Many times, the video would assist the government in their prosecution of the case. That’s particularly true in DUI cases, where the only form of proof is the officer’s testimony about their subjective opinion about the performance on field sobriety exercises. Jury’s expect that evidence, and defense attorneys hammer the absence of video (or often, any corroborating evidence to the opinion testimony.)
In my trial this week, there were several jurors that indicated during jury selection that they would WANT to see video evidence. While the ones that said it out loud may have been struck from the panel, there were likely jurors selected that had a similar, unstated desire to see video evidence as well. After all, jurors want as much evidence as possible, and prosecutors want as much evidence to introduce to help prove their case. There’s a concern that a video might not support an officer’s testimony, but if that’s the case, we shouldn’t be prosecuting those cases. For instance, on a DUI case, if the video doesn’t help the impairment case, prosecutors can know which cases should not be taken to trial before they drag a panel full of jurors in for the day, particularly during a pandemic. 
Frequently, there are disputes between different versions of a story by witnesses on a case. Often, there is a discrepancy between what an officer says, and what the Defendant or his witnesses say about the details of a case. I suspect there is a thinking that it is beneficial for law enforcement not to create video, so that it is harder to challenge the officer’s version of events; the reality is that many disputes would be settled by the video. Disputes in evidence lead to more hearings and trials to settle the disputes, where a video is usually the best qualitative evidence that could be presented. The lack of video hurt the state’s prosecution in this case, and I have several other cases that are still pending because we don’t have video to resolve the dispute in facts. 
I feel like I do an “all cops should have videos” blog post nearly annually here, and several of our local agencies have added body cameras (Fort Myers and Cape Coral police both have done so). But the majority of law enforcement officers in Southwest Florida still do not have body or even car cameras. And defense attorneys like myself are going to keep hammering the issue in court, and jurors are going to keep being surprised that videos are not readily available in the year 2020. 

Video from DUI Arrest at the McDonald’s Drive Thru

christopher bidzinski

Christopher Bidzinski

ABC-7 tracked down the body cam video of the guy who passed out in the McDonald’s drive thru a few weeks ago. It is his third DUI arrest in the last three years. Employees called cops after Christopher Bidzinski fell asleep in the parking lot, waiting for the food he had ordered. When officers arrived, he told them to take him to jail, and at one point, attempted a cartwheel while officers were trying to conduct field sobriety tests. The entire interaction with the cops was caught on bodycam, and even they can’t help laughing.

Not only does Bidzinski have his own arrests, it appears he was struck by a vehicle a couple years ago while crossing the street when he was intoxicated. It’s clear he has a major alcohol problem: he tells the cops that he deserves to go to jail. He’s been in for three weeks right now, and some time in jail is a major part of getting him sober, but punishment alone is not enough: he will need major, long-term counseling help to stop being a danger to himself and to others.

 

Here’s the Story from NBC regarding Surveillance Cameras I was Quoted

me nbc2b

Atty Spencer Cordell on NBC-2 [Who Dey]

The link is up from last night’s NBC-2 follow-up story regarding use of surveillance cameras. The law is a little unclear, but there’s no doubt the best practice is for law enforcement to get a warrant when they are going to use the cameras: even the guy from the camera company recommends it. And everybody, prosecutors and defense attorneys, agree that when video surveillance is used, it needs to be disclosed when a case goes forward. My friend Rene Suarez, who is quoted at the beginning of the story, makes a great point: if the use of video cameras is not disclosed, it shuts the judicial system out of the analysis regarding the legality of the tactics. That’s eliminating judicial oversight. If nothing is being done inappropriately, the investigators should have nothing to hide.

Here’s a link to the story, I will try to embed it, below.

NBC-2.com WBBH News for Fort Myers, Cape Coral & Naples, Florida

And here’s a link to our story yesterday.

Video Exonerated Another Officer

image

Ashley Bills

Ashley Bills was arrested this week after she tried to defraud her friend. She claimed a deputy tried to extort money from her, or that she’d be arrested. The victim gave her some money, but when she tried to mooch some more, he called a lawyer. The lawyer was worried about police misconduct, so the FPMD pulled the tape! The video showed that Bills was making the extortion claim up, and she ended up getting arrested.
The video is evidence that helps us find justice…

UPDATE: corrected to indicate it was FMPD that pulled the tape, and solved the crime! Good job.

FMPD Ought to Release the Video of the Questionable Search

News reports have surfaced this week that people are accusing FMPD officers of an improper, invasive search. Michael McDonald was pulled over by officers, who say they smelled a strong odor of marijuana. They sought to search Mr. McDonald, and gave him a pat down. Officers indicate they felt something that felt like a baggie, and that when they asked McDonald about it, he became “very uncooperative and hostile” toward officers. However, they also indicate that he admitted that it was a bag containing marijuana.

michael mcdonald

Michael McDonald

Mr. McDonald then agreed to retrieve the marijuana, and handed it to officers. They patted him down again, and felt something else concealed in his pants. And that’s where things started to go really wrong.

Officers say McDonald did not respond to their commands, They say he tried to kick an officer in the face (leading to a felony charge for resisting with violence). Officers literally held his legs down. They physically spread his legs and cut his underwear to recover baggies containing heroin and cocaine from inside his undergarments. He alleges that they further probed his rectum with a finger during the search.

When NBC-2 first aired the story, they included a response from Chief Eads, who indicates he has seen both the cell-phone video, and the officer body-cam videos and that no cavity search occurred. I said, hey, that’s a great reason for officers to wear body-cams… so that if they are accused of something they didn’t do, the video evidence can exonerate them. I think body cams will be more of a help to law enforcement than a hindrance.

Then, NBC-2 reported the following day that they have made a public records request for the videos, but the police department has refused to release them. That’s a bad look, FMPD. If the video shows what you say it shows, then RELEASE THE VIDEO!

FMPD told NBC they weren’t releasing the video because there is an ongoing criminal investigation (which is an exception to the Sunshine Laws on public records). That sounds at least a little questionable, as Mr. McDonald was arrested and charged that day: which was 2 weeks ago. It sure sounds like they are claiming that an investigation is ongoing, to avoid releasing the video. Again, bad look FMPD. If the video exonerates your officers, release the video! Don’t make excuses.

Seriously, the news story might be over by now if the video proves that the officers did nothing wrong.

There still may be an issue with the way the search was handled, even if there was no cavity search. While an odor of marijuana gives officers sufficient probable cause to conduct a search, and search that involves removing or arranging clothing to “permit a visual or manual inspection” of private areas is governed by Florida’s strip search statute,Fla. Stat. Sec. 901.201. That statute says that such a search must be conducted “…on premises where the search cannot be observed by persons not physically conducting or observing the search…” The fact that such searches are being performed in public, on the roadside, in full view of people with camera phones, does not sound like it is in compliance with the statutory strictures. Of course, we’ll have a better idea when FMPD releases the video.

NBC has also reported on a similar incident involving an allegedly invasive search, also on video, just a few weeks prior and only a short distance away from Mr. McDonald’s search. As a criminal law practitioner, I have seen cases where officers just grabbed people shorts and pulled them down on the side of the road, so there may be a policy training issue with local law enforcement (it is not limited to FMPD). Or maybe not. Maybe they have done nothing wrong, as the chief said. Many of these questions will be answered when they meet their statutory obligation under the Sunshine law to release the video. If it’s bad, don’t cover it up. If it exonerates the officers, the city should want the video released!

Watch a Crazy Person Dance on a Sheriff’s Vehicle

Exactly what the headline says, this guy must be high. He climbs on top of a marked Sheriff’s SUV, presumably in front of the deputy’s home, and just starts jamming away. It looks like he has a few moments of conversation with an imaginary friend, as well. Either he is impaired, or has a major mental health issue: there is no rational explanation for this behavior! Enjoy, courtesy Lee County Sheriff’s YouTube channel:

Fort Myers Police Are Getting Body Cameras

Some good news for Friday, the City of Fort Myers is going to outfit all FMPD officers with body cams. The first 40 cameras are arriving, and will be deployed soon on patrol officers. Chief Baker has been vocal and instrumental in pushing for this equipment upgrade, and I support his efforts.

I’m a big fan of more cameras. It is for the benefit of everybody… I think there is often pushback from law enforcement, but the cameras really benefit them. If there is a real need to use force, the cameras will demonstrate when they are justified. Conversely, it will catch officers if they break the law, but I think we can all agree that we don’t want officers breaking the law. Much of finding real justice in criminal court is trying to determine what really happened. They call is the the criminal justice system, after all. Cameras are a wonderful tool in discovering the true facts in disputed cases. Cameras collect indisputable evidence.

I encourage all of our local law enforcement departments to look into expanded use of cameras for officers in the field.

http://www.news-press.com/story/news/local/fort-myers/2014/09/10/police-body-cameras-arrive-fmpd/15421785/

Dane Eagle’s Arrest Video was Released

Dane Eagle's Arrest

Dane Eagle’s Arrest

I missed these reports when they came out last week, but a couple of news outlets have obtained the arrest video from Dane Eagle’s recent charge; Tallahassee.com has put the whole video online. Neither of them show much, as Eagle refused to participate in field sobriety exercises. The driving pattern is pretty bad, nearly striking the curb several times, and absolutely blowing a red light. Of course, Eagle could have been distracted, possible by the tasty Taco Bell *Gordita he had just purchased [*I don’t know what, if anything, he really got at Taco Bell.]

You can’t see Eagle while the cop is talking to him. He actually denies drinking twice, and blames the odor of alcohol on people that had been in his car. The cop does stand him in front of the camera to go through his pockets, and he does not noticeably sway or stagger. There’s nothing on camera after the stop to support impairment, though he doesn’t sound great. It is a typical double refusal case, which is difficult for prosecutors to prove, as the evidence is fairly limited.

I did not know that legislators got special plates for their cars. The officer notes it right at the beginning of his stop. These prestige plates ensure that any legislator who is stopped has made the officer aware of his political position. Must be nice, but it clearly didn’t have any impact on this officer.

full video here: http://www.tallahassee.com/article/20140502/NEWS01/140502006/Video-released-Rep-Dane-Eagle-s-DUI-arrest

NBC-2 has a ‘highlights’ video: http://www.nbc-2.com/story/25417103/cape-state-rep-dane-eagles-arrest-caught-on-dashcam

Another Arrest for Video Taping Police

It happened a few weeks ago, but the story just broke yesterday. Miami resident Lazaro Estrada video taped an arrest, and was arrested on an obstruction of justice charge. The officer went so far as to write that he felt threatened by Estrada. The benefit of having things on tape, is the event is fully recorded, and we can all review the video to see exactly what happened. The police say the report speaks for itself, and unfortunately for them, it doesn’t jibe with the video. The best part, if when Estrada asks what he is being arrested for, and the cop audibly stutters as he tries to come up with an offense.

Let me reiterate here, it is absolutely NOT against the law to record officers. An officer who arrests someone for recording him is violating that person’s rights. Frankly, it is even more concerning when the officer tries to trump up a charge to justify his actions: it’s akin to lying to cover up doing something wrong. And the only way officers will stop violating people’s rights in this way is if they are held accountable: both by their departments, and potentially through lawsuits.

http://miami.cbslocal.com/2014/04/28/man-arrested-after-taping-arrest-with-cell-phone/

A Lee County Deputy is Taking Heat for Snatching a Phone / Video

This hit the news a few weeks ago, but it recently came to Crimcourts’ attention. The YouTube video of the Fox 4 story is now up to more than 50,000 views, and multiple stories on PINAC, a blog dedicated to exposing government abuses of photographers.

Phone Footage, from Fox4.com

Phone Footage, from Fox4.com

A man, who doesn’t want his name released for fear of retaliation, was pulled over by LCSO deputies. He says he has been pulled over many times by law enforcement. He was lawfully carrying a firearm, and informed deputies as much. Deputies used a K-9  to conduct a a sniff (a “free-air search”) around the vehicle, and the dog reportedly alerted to possible contraband, though nothing was ever found. After he was pulled out of the vehicle, he decided to record deputies while they were conducting the search. One of the deputies approached him, said that he didn’t want him calling anyone, and took the phone out of his hand.

Before I continue, let me make it clear. The man was well within his rights to record the deputy. He was not doing anything unlawful. Attorney David Shestokas, who was quoted in the Fox story, is absolutely correct. The PINAC blog I mentioned above is dedicated to protecting the rights of individuals to record law enforcement. The Sheriff’s Office has acknowledged this on their Facebook page. Thanks to the proliferation of smart phones and other recording devices, we all get to be government watchdogs. Government officials often don’t like citizens watching over their shoulders.

The Sheriff’s Office has responded in a couple of ways to the media, and social media scrutiny, from this incident. Sheriff Scott wrote a response to Fox 4 reporter Liza Fernandez, which is posted in their online story about the incident. Subsequently, LCSO released a press release to “set the record straight” about the incident. I encourage you to read everything in full to better understand the incident. Bascially, LCSO argues 2 grounds to justify the seizure of the man’s phone, both centering on officer safety concerns. 1. That the phone may have been used to summon other people to the scene, and 2. That the cell phone may have been a firearm in disguise.

First, the deputy says on tape that his specific concern was that he didn’t want the man to call other people. That does not give him the right to take the phone. While the man may have been lawfully detained, and the deputies have have had cause to search his vehicle, they did not have a right to seize his phone, even temporarily. If this were sufficient justification, every time cops pulled somebody over, they could seize their phone. Nope. More than that, since he wasn’t under arrest or in custody, he would be allowed to call somebody. Moreover, he would have an absolute right to call an attorney, had he chose to do so. The seizure of the phone raises Sixth Amendment concerns in addition to First Amendment concerns. Also, the excuse utterly fails because the man wasn’t calling anyone, he was recording the search.

Secondly, the excuse that the cell phone could have been a gun is thin. The deputy on the video doesn’t think it was a gun, he expresses the other concern, that it would be used for a call. Fox 4 prety thoroughly broke down the concern over cell phone guns in their investigative piece. That said, if the deputy had a concern that it was a gun, WHICH HE DID NOT, that concern would not have justified taking the phone and turning off the recorder. IF there was a legitimate concern, such concern only would have justified briefly taking the phone to see if it was a gun. ‘What, oh… your taping on a smart phone which is clearly not a weapon. Sorry, he’s your phone back.’ Frankly, it is misleading to suggest the deputy took the phone because it could have been a weapon, because he is on tape stating otherwise.

The LCSO press release correctly points out that there are limitations and exceptions when law enforcement may legitimately seize a phone or to restrict recording. The irony is that NONE OF THE LISTED REASONS WERE PRESENT. Recording did not threaten the officer or interfere with his duties. The recording did not violate the law. The deputy was not holding it to obtain a warrant, nor did it hold evidence of a crime. In fact, the deputy limited the evidentiary value by turning a recorder off. Finally, there was no exigent circumstance (e.g. imminent danger or destruction of evidence) to support seizing the recording.

The individual in this case does not make himself more sympathetic by not being up front with the officers about his business. He should not have said anything, he is within his rights not to speak, but not to provide false information. However, that’s a red herring, because his lack of candor did not justify the seizure of the phone. David Shestokas suggests that it may have been a battery for the deputy to take the phone. I submit that the definition of theft in Florida includes temporarily depriving someone the use or benefit of their property.

The deputy was not legally justified to seize the phone, even if he gave it back after he completed his detention. Also, there is a Second Amendment concern with this encounter, because the deputies seized his firearm, albeit temporarily, to check to see if it was stolen. The fact that someone is lawfully carrying a weapon does not give the cops grounds to seize it. The fact that is getting lost in this whole debate is that the stop itself looks like a profiling and/or harassment stop. Why did deputies call in the dogs for a stop sign violation, unless they were playing a hunch on this guy? There might be more going on, but the actions sure look shady.

What I’d like to see in this circumstance is when somebody turns on a recorder, that a law enforcement officer says something like:  ‘Great! You can tape the encounter to see that I am legally justified.’ As it is, it’s troublesome that a minority of deputies (and officers) in Lee County have video recorders in their vehicles. It would increase the confidence in law enforcement if more citizen encounters were recorded. It would take guesswork out of hearings in the courtroom if there were more recordings. On the whole, recordings would help prosecutors, because motions to suppress would not be challenged on the word of the accused. This guy says he was being harassed, but a video could show that deputies were acting properly. I’m afraid this incident will encourage cops to grab phones all the time on some BS claim. However, I hope that our local law enforcement uses this as a teaching moment that people have a right to record, and that videos can be good for everyone, law enforcement included. You have nothing to worry about… unless you have something to hide.

Original Fox4 Story