2

Suppose I have a video surveillance system. Down the road from me a serious crime occurred. Investigating officers canvass the neighborhood looking for leads. I, being a "good" American citizen, choose to not talk to "police" nor answer their questions. The police, noticing my video surveillance system, ask to inspect any recordings that might have caught something of interest to their investigation. Again, "flexing" my rights, I ask them to leave and not contact me again about the matter without a warrant.

Some variation of this occurs frequently in fiction, and, if those fictional stories are to be believed, it is generally impossible for crime investigators to secure either a warrant or a subpoena for either persons or devices that they believe only by circumstance might have information that could assist their investigation. Is this correct?

Now, lying to an investigator, or altering, destroying, or concealing evidence, can subject one to various "obstruction of justice" charges. So, of course, I do nothing to alter, destroy, or conceal my video surveillance.

But now, feeling a little high on my constitutional rights, I call the head of the investigating agency and say something to the effect of, "Some of your agents were down here today and seemed interested in my video surveillance footage. I haven't examined it, and I am not altering it, so I don't know what's on it or whether it could help them. But I paid good money for that system, and not for public benefit. I'd be willing to give them access in exchange for $5,000." Could this offer of potential evidence in exchange for money run afoul of any law?

(A less cavalier demand might be, "I'd really like to help, but I need $5,000 to pay my lawyer to ensure that my rights are preserved.")

Again, if fiction is to be believed, crime investigators only get access to this third-party evidence through persuasion. They never volunteer to pay for access, and they are never asked. So is this only because crime fiction writers lack imagination, or is there a legal reason?

1

It feels legal to me. After all, if I have a video of dog gamboling on the lawn that a neighbor wants, for whatever purpose, then I am legally allowed to request money in exchange for a copy of the video. It doesn't matter whether my neighbor is a carpenter or a cop. If he is a cop and suspects or even knows with moral certainty that there is evidence of a crime captured on the video, then he can get a warrants, and without a warrant, you are not compelled to turn over the goods. Without that warrant, the video is just a video that nobody has any special right to, except you as owner, who may exercise his property rights to sell the goods.

In Washington, we can check what the crimes are in RCW 9A. It's a bit tedious, but we can inspect the chapters and determine that such an offer would not constitute bribery, nor interference with official proceedings. There is 9A.76.020 Obstructing a law enforcement officer which punishes you if "the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties". A literal and uninformed reading of this would say that if they ask for your evidence and you delay their investigation by making them get a warrant, that is the crime of obstructing. And yet we do know that they have to get warrants. So I conclude that obstructing statutes are not a way to prevent people from offering to sell evidence to police. If there is any specific statute in this state prohibiting a person from offering to sell something to the police, I can't find it.

Since absolutely everybody knows that the police can get a warrant and just take your video, and since in the US we generally enjoy the freedom to do that which is not prohibited, I think that until a "criminal attempt to sell to police" statute is passed and held to be actually constitutional, I would conclude that it is legal to ask for money. Just don't get your hopes up.

0

Hopefully, better answers will cite relevant statutes and cases; Unfortunately, I can not. I can only offer my general impressions and thoughts.

  1. It feels illegal. Feeling illegal is no basis for an answer. But, often, our intuition about the law leads us in the right direction. I would definitely think twice or three times about taking the course of action you describe.

  2. On the other hand, there is somewhat of a precedence for law enforcement paying for (access to) evidence. Take the recent case of the FBI paying a third party to break into an iPhone, for example. Drastically different circumstances than what you premise; but, all the same, they did pay for access to evidence. Which is the central thrust of your question. Other facts aside.

  3. To the extent this is an Is X Legal? question, I have to invoke my generalized answer. And also mention, as a practical matter, if you ever followed this course of action in real life and it got you in trouble... that would not be a surprise. Consider, the government has comparatively unlimited resources to prosecute people who are not guilty. Who needs the aggravation?

  • Good points. A better example for #2 is the widespread practice of law enforcement paying confidential informants for third-party information. Maybe there's statute or case law pertaining to that the will be illuminating.... – feetwet Jun 4 '16 at 13:39

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