Oregon State Bar Bulletin — OCTOBER 2015

Of the many graphic video images captured in 2015, the most recent include dash-cam footage of Louisiana State Police trooper Steven Vincent being shot in the head during a traffic stop on the side of a highway.

And cell phone footage of an Oregon State Police officer, who had not been named at press time, involved in a physical confrontation with Michael Scott after Scott attempted to record the officer while he was investigating a vehicle suspected in a Coos Bay careless driving case.

And a Portland bicyclist who recorded footage of a careless driver who almost hit him and his young son, helping lead police to the driver and potentially saving lives.

Likewise, the names Freddie Gray, Walter Scott, Sandra Bland and others who died either in police custody or during police encounters are now etched into the national consciousness as the debate over the pros and cons of electronic evidence continues.

From smart phones capturing footage of police officers shooting unarmed citizens to body cameras and dash-cams showing officers attempting to defend themselves during dangerous confrontations, technology is generating a new body of electronic evidence that presents both opportunities and challenges, according to prosecutors and defense attorneys alike.

Oregon legislators have worked during the last two sessions to pass bills that address how these types of electronic evidence are collected and applied in legal cases. During the 2015 session, the legislature passed HB 2704, which allows bystanders to film police encounters without informing the people involved. The law specifies that the person recording the incident must be in plain view of the officers, the audio recorded must be at a volume that can be heard unaided and the person recording the video must be in the vicinity lawfully.

HB 2704 does not allow police to be recorded secretly; it prohibits people from trespassing, harassing or interfering with police; and it does not prevent police from securing crime scenes or ordering people to move away from police activity, according to a summary provided by the ACLU of Oregon.

The 2015 legislature also passed HB 2571, which requires municipalities that use police body cameras to blur the faces of everyone shown in the video, including police officers, before making the footage public. The new law mandates that municipalities follow statewide standards on the use, retention and access to footage captured on police body cameras.

In 2013, the legislature defined restrictions on the use of another technology: drones. Under the new law, law enforcement agencies are not allowed to gather or disclose images or other information acquired by a drone. Further, images and information acquired by a drone is not admissible in judicial, administrative, arbitration or other adjudicatory proceedings and may not be used to establish reasonable suspicion or probable cause that an offense has been committed. Currently, law enforcement agencies may use drones — or unmanned aerial vehicles, as they are dubbed in legal writings — to track individuals fleeing from crimes, reconstruct crime scenes, aid in search and rescue operations, and survey natural disasters.

Prosecutors, Defense Say Electronic Evidence Provides Myriad Benefits

The Multnomah County district attorney’s office, like many agencies across the country, is striving to keep pace with the technological advances that are capturing a new era of evidence. Chief deputy D.A. Chuck Sparks and deputy D.A. Ryan Lufkin agree that, while there are a few challenges, the growing body of electronic evidence not only helps them in their work but is also beneficial for police officers and defense attorneys.

The role that police body cameras will play in Portland remains to be seen, as the Portland Police Bureau is just now acquiring them and plans a full implementation of them next year. “It’s something that law enforcement agencies want, and the biggest hurdle is the cost,” Lufkin said.

Among the challenges foreseen with police body cameras is the period before or after an incident when the camera is not turned on. Even with video, it is often difficult to know the full story of what happened before and after filming.

“Somebody has to turn the camera on and if you are facing a knife-wielding criminal, your first instinct isn’t going to be turning the camera on,” Lufkin said, adding current police training includes turning the camera on when arriving at an incident scene or while getting out of the patrol car.

Other challenges include the jumble that occurs when an officer is engaged in physical activity or a struggle, poor lighting and mediocre quality.

“All of these things are technological problems that add to the difficulty of the situation,” Lufkin said, noting most prosecutors introduce such evidence to juries with the caveat that it needs to be placed within the largest context of the comprehensive evidence that has been presented.

“It’s never been easy, but I think it’s going to be a helpful tool for both prosecutors and law enforcement,” he said. “Once the body cams are fully implemented, that will be one of the biggest changes to law enforcement since the police report.”

Sparks adds: “Officers have been writing about what happened but now you’re going to see what happened, and I submit that that will be a significant change and a positive one.”

Smart phone content and video already has proven to aid investigations and court cases. “There is certainly much more of it, but it can be challenging because oftentimes officers may not even be aware that it exists and it is often difficult to access,” Lufkin said, referring to cell phone video of criminal acts. “It makes the cases much simpler because we can see what happened.”

Lufkin noted that while a U.S. Supreme Court ruling in 2013, Riley v. California, requires a slight shift in how police and the D.A.’s office obtain and utilize cell phone evidence, his office traditionally has obtained search warrants for the majority of its seizures. The small segment conducted without warrants included cases involving large drug deals, in which law enforcement needed to seize cell phones before suspects working for highly sophisticated organizations could discard their phones or change phone numbers before evidence could be obtained.

Sparks pointed out there are so many smart phones and video platforms available today that many people instinctively take out their phone to film incidents, particularly police activity. “It really is quite remarkable how much of life is captured because of all the people who are filming on their cell phones,” he said.

And, while evidence available via the Internet, emails social media and other online venues is becoming more mainstream, it still presents a compelling — and often difficult — arena for law enforcement.

“The digital frontier of evidence has been a steadily growing area. The ability to get a comprehensive view of someone’s digital life is something that is new and that we’re still learning about, but I think we’re doing a good job at the forefront,” Lufkin said.

Sparks said an appropriate analogy would be the way custodial interviews of suspects were conducted 20-30 years ago, when interviews were done and a report was written based on that interview but few recordings were available. Over the last decade, custodial interviews of suspects are required to be recorded.

“We found we have far fewer challenges to our custodial interviews because it’s all right there on the tape,” Sparks said. “That has been, without exception for both the state and the defense, an improvement because you can see everything.”

Portland criminal defense lawyer Edward Kroll, president of the Oregon Criminal Defense Lawyers Association, says that while there doesn’t appear to be a lot of guidance or uniformity about when police officers use dash-cams or body cameras, he welcomes the increased use of electronic evidence.

“Frankly, I think it’s better if we have electronic evidence. If it’s recorded and it’s there the jury can decide for themselves. And in criminal defense, I have clients who say things happened one way and the recording shows that it happened another way and that oftentimes leads to a settlement,” Kroll said, adding faster settlements and dismissals can only benefit underfunded court systems.

“The more information we as the prosecutor and the defense attorney have, the better we are able to resolve cases,” he said. “And, all over Oregon and across the U.S., people are just increasingly in favor of more openness and transparency. That can’t be a bad thing for justice.”

Law Professors Raise Concerns About Constitutional Rights

Carrie Leonetti, associate professor of constitutional law, criminal procedure and evidence, and faculty leader of the University of Oregon School of Law’s Criminal Justice Initiative, said her criminal investigations course includes discussion about high-tech searches because the Supreme Court’s interpretation of trespass and privacy deals primarily with physical spaces.

“It’s very difficult to fit high-tech searches into that older doctrine,” she said. “In the last three or four years, the Court has decided two different cases where trespassing seems to play a role in whether something is permissible for a search.”

In Riley, the Supreme Court ruledthat police generally may not, without a warrant, search digital information on a cell phone seized from someone who has been arrested because it violates privacy rights under the Fourth Amendment. The exception is when a cell phone is seized in a search incident to arrest in order to protect the officers or evidence. In its ruling, the Court concluded by suggesting that state legislatures be proactive in addressing privacy concerns related to criminal justice and law enforcement:

Modern cell phones are of great value for both lawful and unlawful purposes. They can be used in committing many serious crimes, and they present new and difficult law enforcement problems. At the same time, because of the role that these devices have come to play in contemporary life, searching their contents implicates very sensitive privacy interests that this Court is poorly positioned to understand and evaluate. Many forms of modern technology are making it easier and easier for both government and private entities to amass a wealth of information about the lives of ordinary Americans, and at the same time, many ordinary Americans are choosing to make public much information that was seldom revealed to outsiders just a few decades ago.

In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.

The U.S. Supreme Court also, in a sense, left the issue of law enforcement agencies’ use of GPS to track suspects up to the states. In 2012, it ruled that law enforcement must obtain a warrant before physically attaching a GPS tracking device to a suspect’s vehicle. In United States v. Antoine Jones, the Court found that it also violates the Fourth Amendment because the device installation involved physical intrusion on a suspect’s vehicle.

“They dodged the question of whether it would have been OK to attach the GPS in a (public area),” Leonetti said. “I think that adds one wrinkle to some of the high-tech search issues.”

GPS.gov, the government’s official website about GPS-related topics, agreed, noting the Supreme Court did not resolve the broader issue of whether the Fourth Amendment protects geolocation privacy rights. As a result, state courts throughout the country have been applying the law differently and, as several legal analysts note, there is little consistent case law being established at this point.

And, as more information is stored online, many question modern applications of the third-party records doctrine, which holds that information lawfully held by many third parties is treated differently from information held by the suspect himself. It can be obtained by subpoenaing the third party, by securing the third party’s consent or by any other means of legal discovery; the suspect has no role in the matter, and no search warrant is required, according to the American Bar Association.

The ABA referred to United States v. Jones, specificallyJustice Sonia Sotomayor’s concurrence that the third-party records doctrine is “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

“The principle remains the same — suspects who entrusted their data to AT&T or Capital One in the 1970s are now entrusting their data to Google and Facebook. But the amount of data in the hands of third parties today is potentially much more revealing than in the 1970s. The question is whether that difference in quantity and quality has become a difference in kind,” the ABA stated.

“The distinction between public and private becomes very problematic when we’re talking about cyberspace,” Leonetti said.

Caroline Davidson, associate professor at Willamette University College of Law, fully expected issues surrounding electronic evidence to arise during her course on criminal procedures and police practices this fall.

“I think the bigger issue is how do we have more of a humane police force, and that is definitely coming up with students more,” she said. “Unfortunately, because of the news recently, the concern is over horrible deaths. We’re not looking at just whether a seizure was reasonable, and that gets into issues of excessive force.”

Davidson said it’s important to inform citizens that they are permitted to film police interactions, within the parameters of the law. It’s also important to note that research shows people’s knowledge of being videotaped often impacts their actions.

“Another huge benefit to having these cameras is that potentially knowing that one is being watched makes people behave better,” she said. “This is not just a one-way street. It’s not just about attacks by officers and it may show that an interaction was much more complicated than it appeared to be on video. It may actually exonerate police officers.”

Gains From Technology Advances Continue to Enhance Evidence

As Portland and other police departments in Oregon begin to explore the use of body cameras, many states are looking to Indianapolis’ use of a leading edge mobile forensics lab that is serving as a national model of evidence gathering and processing.

The Associated Press reported the mobile lab’s use in the case involving former Subway spokesman Jared Fogle, who was arrested in August on charges of paying for sex with minors and possessing child pornography. The mobile forensics lab allowed an investigator to question Fogle in one room while other investigators watched the interview on a screen in another room. Authorities also simultaneously searched Fogle’s computers, mobile devices and other media in the house during the questioning.

The custom-built lab allows investigators to feed real-time questions to interviewers based on what they find or what may be missing. It gives them a chance to preview data before computers and devices are shut off or erased. It helps identify other devices to look for inside a home. It also saves time compared to the traditional method of taking computers and devices to another location before examining them, according to the A.P.

The A.P. also credited the Central Indiana Internet Crimes Against Children Task Force with perfecting a method of following cyber trails to find offenders and victims in other states and countries. The task force includes the FBI, state and local police, Postal Service inspectors, the Secret Service and state and federal prosecutors.


Melody Finnemore is a Portland-area freelance writer and frequent contributor to the Bulletin. She can be reached at precisionpdx@comcast.net.

© 2015 Melody Finnemore

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