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In June 2014, the US Supreme Court held that law enforcement cannot search a cellphone without a warrant (Riley v. California).

Taking photographs and videos of things that are plainly visible from public spaces is your constitutional right which includes police and other government officials carrying out their duties. Unfortunately, law enforcement officers often order people to stop taking photographs or video in public places, and sometimes harass, detain or even arrest people who use their cameras or cell phone recording devices in public.

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Photo by EBC Broadcast

Using a Video Recorder (Including Cell Phones) With Audio Capacity

When in outdoor public spaces where you are legally present, you have the right to capture any image that is in plain view.

When you are on private property, the property owner sets the rules about the taking of photographs or videos. If you disobey property owners’ rules, they can order you off their property (and have you arrested for trespassing if you do not comply).

Police should not order you to stop taking pictures or video. Under no circumstances should they demand that you delete your photographs or video.  Police officers may order citizens to cease activities that are truly interfering with legitimate law enforcement operations. In general, a court will trust an officer’s judgment about what is “interfering” more than yours. So if an officer orders you to stand back, do so. But that does not mean stop recording.

If the officer says he/she will arrest you if you continue to use your camera, in most circumstances it is better to put the camera away and call 911 for help, rather than risking arrest.

You have the right to videotape and audiotape police officers performing official duties in public.  That means you can record an officer during a traffic stop, during an interrogation, or while he or she is making an arrest.  You can record people protesting or giving speeches in public.

If You Are Stopped or Detained for Taking Photographs or Videos

Always remain polite and never physically resist a police officer.  If stopped for photography, ask if you are free to go. If the officer says no, then you are being detained, something an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.  YOU MUST ASK “Am I being detained.”

If the answer is YES and you are detained, politely state that you have the right to take pictures or video and that you do not consent to the officer looking through or deleting anything on your camera. But if the officer reaches for your camera or phone, do not resist. Simply repeat that you do not consent to any search or seizure. You don’t want to invite a charge for “resisting arrest.”

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