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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?
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.
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...
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.
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...