No warrant? Search illegal! Case thrown out.

[dai_hunter]

Though this case is more than just one involving photography, per se,

it does serve as something of a benchmark for street work, ect, and

relations with the police when they insist that you: 1) allow them to

see what you shot; or 2) try to, or do, seize your film or camera

without probable cause or a warrant. Article reproduced in full here,

in fair use for education and comment, as it will not remain on the

public news server for long. Interestingly, the warrant they did get

the following day for the service provider, based on the camera-phone

seizure, did not protect them under the legal doctrine that anything

so obtained was already "the fruit of a poisoned tree."

 

http://www.dailystar.com/dailystar/news/74008.php

 

Section: News

 

Judge tosses nude pics on seized cell phone

 

Ex: THE NEW YORK TIMES

 

WILMINGTON, N.C. - Police violated a man's constitutional rights when

they seized a camera cell phone containing explicit images of an

unconscious woman, a judge ruled this week.

 

New Hanover County Superior Court Judge W. Allen Cobb Jr. ruled in a

case that could create precedent and serve as a reference point for

future cases nationwide. He found that officers should have obtained a

search warrant before viewing images from the camera phone.

 

Assistant District Attorney Todd Fennell said he'll appeal.

 

The ruling came in the case of Christopher Snow, 26, charged by

Wrightsville Beach police with second-degree sexual offense. On the

night of July 25, he attended a party with a co-worker. They were on

the beach the morning of July 26 when police were called.

 

Snow was trying to load the victim into a car when they arrived,

police said in court documents. A witness told police she had seen

Snow taking pictures of the woman on the beach. When police asked to

see the images, Snow became flustered and said his batteries were

depleted, according to documents.

 

An officer activated the phone and retrieved several images, including

one of someone pulling down a woman's underwear, court papers state. A

warrant was obtained the next day and police contacted Sprint

corporate headquarters. Sprint provided copies of seven images,

including one of a woman's exposed genital area.

 

Snow's lawyer argued the images were obtained on July 26 without

probable cause or a search warrant. Cobb agreed.

 

Hunter

[sabrina_h.]

It's upsetting for anyone to be victimized. However, the police can't go around breaking

the law to uphold the law - judge, jury and executioner.

[bill_thorlin]

This is a really complex area and I would think an appeal is likely.The results of that would set even more of a precedent.

 

Possibly one of those rare occasions when good can come out of bad.

[john_h.1]

Echo Sabrina.

[cenelsonfoto]

Was photographing the unconcious woman a crime? Would the eye-witness's claims be enough to warrant an arrest? In many areas, the cops would have to witness crime in progress for there to be an arrest if non-violent in nature, yes? If no grounds for arrest at that time, then I would say yes, they fooked up by searching the guy's phone. If the witness account was sufficient to have the guy hooked up, then the phone and the contents on it were evidence of the "crime" and admissable.

 

Will be interesting to see how this turns out.

[jeff_conrad]

It doesn’t seem to me that this case even breaks new ground, although

it’s encouraging that it seems to affirm what should have been self

evident. It’s always dangerous to speculate without the court

documents at hand, but unless the articles on this case have omitted

something very significant, the search would seem an obvious and egregious

violation of the Fourth Amendment. The police appear to have lacked

probable cause to arrest, and the search of the cell phone clearly was not

a search for weapons. People actually should read <cite><a

href="http://laws.findlaw.com/us/392/1.html">Terry v. Ohio</a></cite>, 392

U.S. 1 (1968). Apparently the police and Assistant District Attorney

Fennell did not. It will be interesting to see what they contend in their

appeal.

<p>

There’s another article on this case at <a

href=http://www.topix.net/city/wrightsville-beach-nc>

http://www.topix.net/city/wrightsville-beach-nc</a> (registration

required).

[spanky]

I suppose if the lady who called the cops actually saw these guys pull this womans pants down I can't see why they couldn't have gotten a warrant pretty fast. Don't cops have fax machines in their patrol cars with all the other gadgets they have? While these guys may evade criminal charges, they are still scum and hopefully the victim, who I presume was also a party goer who may have had a little too much to drink (or was drugged, these days you never know) and passed out on the beach should at the least file a civil suit.

[dai_hunter]

Jeff Conrad , may 08, 2005; 07:16 p.m.said: "It doesn?t seem to me that this case even breaks new ground, although it?s encouraging that it seems to affirm what should have been self evident...."

 

You are right Jeff it doesn't break new ground, in general, but it may be doing so specifically for technology based items such as digital [or ANY] cameras and cel phones... probably also for lap-tops; iPods; PDAs; data dongles; and all the rest.

 

The almost direct comparitor, to my mind, is that of vehicle searches and the "plain sight" rules [settled law]. Though a vehicle is in plain sight and the interior may be substantially in plain sight - a locked compartment such as the trunk or a locked tool box is not. Thus, a seizure of evidence that can be openly seen in the main part of the vehicle, or in it's surface, can be legally undertaken without warrant. To search inside the trunk or the locked tool box, however, requires a warrant. In this case the phone itself was in plain sight but the images were, by technical means, locked within. As is long settled law in the case of vehicle searches seeing what is in open view is not the same as forcibly searching the secured interior areas.

 

I am thinking of the potential importance of this case where, for example, a photog may have one or more "suspect" images in-camera and those may be seen by LE under similar circumstance to the above [non-voluntary search and seizure absent probable cause] - but then lead to them seeking a follow-up warrant to further search the photog's home or computer system on little more than a fishing expedition for additional "evidence" of some wrongdoing.

 

Interesting case, this one, as it seems to now move, or, more correctly it affirms, the limit of the "plain sight" rule, and thus the limit of a warrantless search, to the device itself (cel phone, camera, or virtually ANYTHING similar) as first observed... and no further.

 

Hunter

[sprouty]

This is hardly "good news", it's just another case were the police look like idiots and the cellphone pervert will get lumped in with anyone else who takes pictures.

<P>

To paraphrase a long forgotten post: "I may understand what you mean by taking public photos but to most people you're a step above collecting womens' shoes."

[craig_gillette]

I agree without all the documents, there may or may not be anything of significance here. I was a little surprised on another forum where it mentioned that the search wasn't pursuant to an arrest, yet (in the brief discussion) the circumstances sounded like there might have been grounds.

 

Simply finding that a warrant is necessary may not be that big a deal. If they have probably cause, they can get the warrant. It may be that he had probable cause and screwed up by not waiting until he obtained a warrant. That's just dumb. Those pictures weren't going to go anywhere.

[david j.lee]

having too much to drink or being stoned is not a permit to anybody to pull

down her clothes.