A police officer was allowed into my home by another occupant before I arrived. During the encounter, I began recording the situation. After attempting to have me remove my sunglasses and stop recording, he pulled out his personal phone and began filming me.

Since this happened on private property, using his personal phone, is it possible for me to request the media he took of me be destroyed, returned, proof of no copy, or so on?

Would this put his device in the public domain?

  • 5
    Did you or an owner of the property ask him to stop filming? I'm also not sure what "make his device in the realm of public domain" means. Jun 24 '19 at 0:04
  • 12
    *laughs in GDPR* Jun 24 '19 at 10:01
  • 6
    How do you know it was his private phone, and not one issued to him by his department to use exactly in the situation he was in? Jun 24 '19 at 10:58
  • 6
    @TomášZato GDPR doesn't apply to law enforcement preventing/investigating/detecting/prosecuting a crime, carrying out criminal penalties or preventing a threat to public safety. ie, this Jun 24 '19 at 10:58
  • 1
    We can presume that the police did not enter with a warrant?
    – J...
    Jun 24 '19 at 18:54

Very interesting legal question. Had it been in a public place, you both would have had right to film anything you pleased. Different deal in the privacy of your home. There, you have the right to record because it's your domicile, even without notice to the officer (e.g. nanny-cams).

However the officer as a private party does not automatically have right to record in somebody else's private space.

I hope that addresses the asymmetry of why one party might be allowed to record and not the other.

There's an error to be made here. Someone might think "If someone else is recording, I can too, since they must have gotten everyone's permission to be recorded". Nuh-uh. They may not have gotten permission because they might not need it. You do, though. Of course, if there's a matter to litigate, you could always take his copy via subpoena.

There's an argument that he might have had a right to record if he obtained the consent of all parties present. But "consent" can't be given unless a person has a bona-fide right to say no: e.g.

  • By denying consent (which the officer clearly did not allow),
  • By retreating from the space - which makes no sense whatsoever toward the occupants of the home, it's unfair to be forced to leave your own abode simply to maintain your rights; and the officer could stop it anyway by detaining you. Or
  • ordinarily an occupant would expel the guest from the home, and that's tricky to manage in the middle of a police search.

As such, I would say it would be impossible for the officer to obtain consent of all parties, since "consent" requires a meaningful ability to say "no".

So now the question is whether he had a right to record as a function of his job. I suspect that is a fast-moving area of "new law", since police body-cams are developing only recently, and as a matter of public policy, they seem to settle a lot of disputes, so I expect them to be strongly encouraged in statute and case law.

But even this raises the question: Did the officer record in a professional capacity or out of a prurient personal interest? Some of that would go to what Department policy is in that case, and that is also informed by whether he used Department-issued equipment.

  • ...that obviously doesn't work in the middle of a police search But if the police did not have a warrant to enter the premises then, presumably, they must be obligated to leave when the homeowner asks them to, no? Even if previously invited by another member of the family...
    – J...
    Jun 24 '19 at 23:40
  • @J... Tricky. Anyone present can give consent to a search, so everyone who is there and the person who initially consented must all get together and say "We withdraw our consent". Trying to herd that bunch of cats may be a challenge. And it's all for nought if the police claim to have found something. Jun 25 '19 at 0:04
  • 1
    Why do you believe that "anyone present can give consent to a search"? I've never seen that rule endorsed by any American court.
    – bdb484
    Jun 25 '19 at 3:13
  • @bdb484 The apocryphal example being if cops show up at a party, any guest can invite them in. This is taught by any of the civil rights organizations that educate citizens on police encounters. It was awhile ago, possibly this has changed. Jun 25 '19 at 3:24
  • A consent search requires that the officer reasonably believe that the person is authorized to allow access. Getting consent from a three-year-old or the dog walker or anyone else the officer knows isn't authorized to consent will likely end in suppression.
    – bdb484
    Jun 25 '19 at 5:24

The video is a record created and possessed by the government, documenting government activities. It is a government record, and probably a public record under the Illinois Freedom of Information Act.

As such, you would almost certainly be unable to force its destruction, and it's more likely that the public would be able to access it.

  • 5
    If there is an ongoing investigation, it may be considered police confidential evidence and not subject to FOIA. Jun 24 '19 at 4:18
  • 7
    Surely if it was recorded in the course of his duty, it would have to be done on an official machine, not his personal one?
    – Tim
    Jun 24 '19 at 8:50
  • Wouldn't there be some privacy protections against making a recording which includes the contents of private property publicly available?
    – NotThatGuy
    Jun 24 '19 at 9:54
  • 4
    @Tim I don't know of many places where that's the rule. If an officer needs to take notes and doesn't have his work-issued pen, is he allowed to use one from home? It may be a bad idea, but government workers use personal equipment for official purposes all the time, electronic and otherwise. Think Secretary Clinton.
    – bdb484
    Jun 24 '19 at 12:04
  • 4
    Some citations would be nice. Like this one, for example. I quote We hold that an undercover agent’s warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect does not violate the Fourth Amendment. Accordingly, the district court did not err in denying Wahchumwah’s motion to suppress the evidence obtained by use of the concealed audio-video device. Here the police were invited by the suspect, and this is a variation on the case above. Still, I feel this precedent would still likely stick but... IANAL, so...
    – J...
    Jun 24 '19 at 19:07

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