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Blaes: Cop-Arrazi
Blaes: Cop-Arrazi
ZACHARY R. BLAES
ABSTRACT
The idea of outfitting police officers with body cameras in order to increase
officer accountability has been around for some time. Recent events have
fueled the call for outfitting officers with body cameras as our national
conversation has turned toward police accountability. Although body
cameras are primarily used as a means of preventing police misconduct,
the possibility that citizens can now be watched at all times is concerning.
In fact, body cameras conflict with Fourth Amendment principles as they
create privacy concerns for citizens in both public and private settings.
Specifically, body cameras have the ability to permanently memorialize
any encounter between a citizen and a police officer, thereby capturing the
intimate details of a citizens everyday life.
*Candidate for Juris Doctorate, New England Law | Boston (2016). B.A., Political Science,
University of Colorado at Denver (2010). Thank you to my wonderful parents and family for
all of their love and support. I would also like to thank Professor Natashia Tidwell for all of
her help and guidance. I would like to thank my colleague Ted Sisk for coming up with my
title. Lastly, I want to thank the entire New England Law Review staff for their hard work in
editing this article for publication.
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INTRODUCTION
/ARTICLES/150109933.
5 See Martina Kitzmueller, Are You Recording This?: Enforcement of Police Videotaping, 47
CONN. L. REV. 167, 178 (2014).
6 See id.
7 See Jamelle Bouie, Shoot First: When Cops First Instinct Is to Use Force, We Shouldnt Be
Surprised that People Will Die, SLATE (Dec. 4, 2014 3:55 PM), http://www.slate.com/articles
/news_and_politics/politics/2014/12/eric_garner_daniel_pantaleo_and_cop_training_police_de
partments_must_explain.html (discussing Eric Garners death and other incidents of police
escalation of force that lead to death).
8 See Gross, supra note 4.
9 See J. David Goodman, New York Police Officers to Start Using Body Cameras in a Pilot
Program, N.Y. TIMES (Sept. 4, 2014), http://www.nytimes.com/2014/09/05/nyregion/new-yorkpolice-officers-to-begin-wearing-body-cameras-in-pilot-program.html.
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Background
10
See Glik v. Cunniffe, 655 F.3d 78, 8283 (1st Cir. 2011).
Kitzmueller, supra note 5, at 167, 169 (discussing video footage captured from an officers
head camera showing the fatal shooting of a homeless person by Albuquerque police officers).
Without the video it is unlikely that the incident could have been recreated as completely and
accurately. Id.
11
12
17 See generally Goodman, supra note 9 (noting studies have suggested their use reduces
both citizen complaints and officers use of force).
18
Id.
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Id.
Id.
23 David A. Harris, Picture This: Body-Worn Video Devices (Head Cams) As Tools for Ensuring
Fourth Amendment Compliance by Police, 43 TEX. TECH L. REV. 357, 360 (2010).
22
24 UNITED STATES DEPT OF JUSTICE, supra note 19, at 5. But see Melissa Gregg & Jason
Wilson, The Myth of Neutral Technology, THE ATLANTIC (Jan. 13, 2015),
http://www.theatlantic.com/technology/archive/2015/01/the-myth-of-neutraltechnology/384330/ (stating that one reason for the reduced complaints could be that citizens
with a grievance are intimidated by the fact that police possess a record of their encounter to
which the complaining citizen has no access).
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The city of Rialto, California, was one of the first jurisdictions in the
country to implement a body camera program.29 The body camera program
was introduced in February 2012 and saw positive results soon after. 30
After the cameras were introduced, complaints against officers fell by over
80% as compared with the previous year.31 As part of the program, the
police department randomly assigned body cameras to various police
officers over the course of nearly 1,000 shifts. 32 Generally, members of the
public who interacted with the officers tended to be more polite when
informed they were on camera. 33 [T]here was a 60[%] reduction in officer
use of force incidents following camera deployment, and during the
experiment, the shifts without cameras experienced twice as many use of
force incidents as shifts with cameras.34 These figures demonstrate that
officers are less likely to use force when wearing the cameras. 35 The Rialto
police chief, Tony Farrar, spoke positively of the program stating, When
you know youre being watched you behave a little better . . . [a]s an officer
you act a bit more professional, follow the rules a bit better.36
issued on the subject by the U.K. Home Office found that the officers who participated in the
trials experienced significant benefits. Id.
27 See id.
28 See Russ Mitchell, Police Head Cameras Capture Action, Evidence, CBS NEWS (Apr. 14, 2010,
7:26 PM), http://www.cbsnews.com/news/police-head-cameras-capture-action-evidence/.
29 Rory Carroll, California Police Use of Body Cameras Cuts Violence and Complaints, THE
GUARDIAN (Nov. 4, 2013, 12:00 PM), http://www.theguardian.com/world/2013/nov/04
/california-police-body-cameras-cuts-violence-complaints-rialto.
30 Id.
31 Eileen Shim, 3 Years After this City Made Cops Wear Cameras, Heres What Happened to Police
Violence, NEWS.MIC (Nov. 25, 2014), http://mic.com/articles/92777/3-years-after-this-city-madecops-wear-cameras-here-s-what-happened-to-police-violence.
32
34
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Last fall the New York City Police Department began a body camera
pilot program with the intention of eventually outfitting its entire force, the
largest in the nation, with the technology.44 The program consisted of
deploying sixty cameras in five high-crime precincts.45 Interestingly, the
City was actually ordered to implement such a program by a federal judge
as remedial action for the Citys unconstitutional stop-and-frisk policy.46
37
body_cams _myths_about_police_body_worn_recorders.html.
42 Id.
43 Id.
44 Goodman, supra note 9.
45 Id.
46 See Floyd v. City of New York, 959 F. Supp. 2d 540, 562, 660 (S.D.N.Y. 2013) (determining
that New York Citys stop-and-frisk policy violated the Fourth and Fourteenth Amendments
and ordering the City to implement a body camera program). In discussing why a body
camera program would serve as a good remedy, Judge Scheindlin stated:
In making these decisions I note that evaluating a stop in hindsight is an
imperfect procedure. Because there is no contemporaneous recording of
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Despite this order, the City stated that it was proceeding both
independently and unilaterally because the issue was too important to
wait.47
Similarly, Chicago recently decided to implement a body camera pilot
program.48 The Chicago Police Department intended to evaluate the
program after a forty-five to sixty day period.49 The program is said to be a
cornerstone of the Mayors anti-crime agenda.50 Officers will be instructed
to turn their cameras on during high-risk situations as well as during
routine stops.51 In fact, the hope is that the cameras will record a wide
range of police activity from investigatory and traffic stops, to foot and
vehicle pursuits, and simple routine calls.52
Additionally, Los Angeles recently purchased 7,000 body cameras for
widespread use amongst its police force.53 As mentioned above, body
camera programs are being implemented more and more frequently, but
Los Angeles will be the first major city to implement the cameras on a wide
scale.54 Similar to the purpose behind Chicagos plan, Los Angeles Mayor
stated that the purpose behind the effort is to repair the trust between the
community and the police department. 55 Supporters of the program claim
visual recordings of officer interactions will prevent officer misconduct and
clear officers that are falsely accused of misconduct. 56
breaking/redeye-police-to-test-body-camera-pilot-program-20150120-story.html.
49 Id.
50 Fran Spielman, Emanuel Launches Body-Cam Pilot to Rebuild Trust Between Citizens and
Police, CHI. SUN TIMES (Jan. 20, 2015, 1:13 PM), http://chicago.suntimes.com/newschicago/7/71/306307/emanuel-unveil-second-term-crime-agenda.
51 Crepeau, supra note 48.
52 Id.
53 Kate Mather & Richard Winton, LAPDs Plan for 7,000 Cameras Comes with Challenges, L.A.
TIMES (Dec. 16, 2014, 7:14 PM), http://www.latimes.com/local/lanow/la-me-ln-lapds-plan-for7000-body-cameras-comes-with-challenges-20141216-story.html.
54
See id.
See id.
56 Kate Mather, LAPD Moves One Step Closer to On-Body Cameras for Officers, L.A. TIMES
55
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state action was a search within the meaning of the Fourth Amendment because the defendant
justifiably relied on an expectation of privacy when he entered the phone booth and shut the
door behind him. Id. at 353.
64
Donald L. Doernberg, "Can You Hear Me Now?": Expectations of Privacy, False Friends, and
the Perils of Speaking Under the Supreme Court's Fourth Amendment Jurisprudence, 39 IND. L. REV.
253, 270 (2006) (Conversations in the open would not be protected against being overheard,
for the expectation of privacy under the circumstances would be unreasonable.).
65
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73
Id.
Id. at 302.
75 Id.
76 401 U.S. 745, 74647 (1971).
77 Id. at 747, 749.
78 Id. at 749, 752.
79 Id. at 75253.
80 Id. at 787 (Harlan, J., dissenting).
81 Id. at 788 (Harlan, J., dissenting).
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movements and the places they visit.82 The visual surveillance of a person
in public generally does not implicate the Fourth Amendment because
there is no expectation that ones public movements are to remain private.83
Whether extended visual surveillance and electronic tracking violate
expectations of privacy is another question, and one that the Supreme
Court addressed for the first time in United States v. Knotts.84 The Court
held that visual surveillance and monitoring through an electronic tracking
device did not constitute a search within the meaning of the Fourth
Amendment.85 The Court reasoned:
A person travelling in an automobile on public thoroughfares has
no reasonable expectation of privacy in his movements from one
place to another. When [the defendant] traveled over the public
streets he voluntarily conveyed to anyone who wanted to look
the fact that he was traveling over particular roads in a particular
direction, the fact of whatever stops he made, and the fact of his
final destination when he exited from public roads onto private
property.86
82
See United States v. Jones, 132 S. Ct. 945, 950 (2012) (stating the governments argument
that the defendant did not have a reasonable expectation of privacy in the places he visited
because he was driving on public roads visible to all).
83 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT
2.7(g), at 101617 (5th ed. 2014).
84
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ANALYSIS
III. Body Cameras Are Incompatible with Fourth Amendment
Protections
The Fourth Amendment protects a certain amount of privacy and
prohibits unwarranted governmental intrusion, but it does not grant a
general right of privacy.93 Police worn body cameras designed to capture a
range of encounters with the public will violate citizens expectations of
privacy.94 The body cameras create privacy concerns for individuals in both
public and private settings.95 The search threshold inquiry is important
when determining whether an individual memorialized by an officers
body camera is entitled to Fourth Amendment protection.96 Body cameras
will record a significant amount of innocent activity, thereby affecting
individual privacyespecially when officers enter an individuals home.97
An officer capturing video evidence of an individual engaged in criminal
activity could constitute a search within the meaning of the Fourth
Amendment.98 Under Katz, if an individual is exhibiting an actual
expectation of privacy, and that expectation is objectively reasonable, an
91
story.html#page=1.
96 See Afsheen John Radsan, The Case for Stewart over Harlan on 24/7 Physical Surveillance, 88
TEX. L. REV. 1475, 1475 (2010) (arguing that physical surveillance by police officers can reach
the point where it becomes a search).
97 JAY STANLEY, POLICE BODY-MOUNTED CAMERAS: WITH RIGHT POLICIES IN PLACE, A WIN
FOR ALL 3 (2013), available at https://www.aclu.org/files/assets/police_bodymounted_cameras.pdf.
98 See, e.g., Katz, 389 U.S. at 350 (stating that Fourth Amendment protects against certain
types of government intrusion).
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99 See Marc Jonathan Blitz, Video Surveillance and the Constitution of Public Space: Fitting the
Fourth Amendment to A World That Tracks Image and Identity, 82 TEX. L. REV. 1349, 1408 (2004)
(explaining that public video surveillance conducted by law enforcement presents
a deep threat to core liberty and privacy interests in a number of ways).
100
106
Cf. Quin M. Sorenson, Losing A Plain View of Katz: The Loss of a Reasonable Expectation of
Privacy Under the Readily Available Standard, 107 DICK. L. REV. 179, 17980 (2002) (explaining
that new technologies may one day allow the government to reproduce intimate details of a
persons home without actually seizing any items).
107
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108 See UNITED STATES DEPT OF JUSTICE, supra note 19, at 15 ([When] enter[ing] a home in
response to a call for service, pursuant to a valid search warrant, or with consent of the
resident, officers can record what they find inside.).
109
111 This situation is similar to Arizona v. Hicks, in which the Court held that the
incriminating nature of a stolen speaker was not immediately apparent because the officer
had to move the speaker to reveal the identification number. 480 U.S. 321, 328 (1987).
112 Cf. Steagald v. United States, 451 U.S. 204, 215 (1981) (stating that an officer may use an
arrest warrant as a pretext for entering an individuals home with only a reasonable suspicion,
rather than probable cause, that criminal activity is taking place).
113 See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 299 (1967) (stating that the scope
of an exigent circumstances search must be reasonably necessary to prevent the danger of the
suspect either resisting or escaping).
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116
Hayden, 387 U.S. at 299 (The permissible scope of search must, therefore, at the least, be
as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the
house may resist or escape.).
117
119 See United States v. Knotts, 460 U.S. 276, 281 (1983) (explaining that an individual
travelling in an automobile on public thoroughfares has no reasonable expectation of privacy
in his movements from one place to another.).
120 See id.
121 See United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring).
122 See Hoffa v. United States, 385 U.S. 293, 302 (1966).
123 See Blitz, supra note 99, at 1407 (explaining that a persons private life is not always
carried out in a private place, and merely because a person is in a public space does not mean
that the private details of their life are no longer private).
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124 See United States v. White, 401 U.S. 745, 75253 (1971); Hoffa, 385 U.S. at 302; Lopez v.
United States, 373 U.S. 427, 439 (1963); On Lee v. United States, 343 U.S. 747, 754 (1952).
125
129
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public they were being recorded. See generally POLICE FOUNDATION, supra note 33 (explaining
the methodology and the way the study was conducted, however, nothing in the study states
that officers were required to inform members of the public they were being recorded).
136
140
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145
147
Id.
White, 401 U.S. at 786 (Harlan, J., dissenting).
149 Id. at 78687 (Harlan, J., dissenting).
150 See id. (Harlan, J., dissenting).
151 See id. (Harlan, J., dissenting); see also Rebecca G. Van Tassell, Walking a Thin Blue Line:
Balancing the Citizen's Right to Record Police Officers Against Officer Privacy, 2013 BYU L. REV.
183, 189 (2013) (analyzing whether an officer has a reasonable expectation of privacy to not be
recorded in public while conducting their official duty).
148
152
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CONCLUSION
At first glance, outfitting police officers with body cameras seems like a
great way to curb police misconduct. However, body camera studies reveal
that the only consistent result is a reduction in citizen complaints. Not only
do body cameras have less of a positive impact than expected, they
implicate Fourth Amendment privacy concerns because they have the
ability to capture the intimate details of an individuals home and everyday
life. Accordingly, individuals should have an expectation of privacy that
their movements, conversations, and daily conduct will not be
permanently memorialized by an officer wearing a body camera.