Photo Attorney

May 4, 2008

Photography Not Allowed - 6

Photo by Mark Harmel

Mark Harmel reports that he was detained last Friday by the Beverly Hills Police Department after taking the above photo while standing on a public sidewalk. These are the events that occurred (in his words):
A school principal came over and asked me to stop taking photos. I stated that I was in a public place exercising my First Amendment Rights. She said that if I didn't stop she would call the police. I didn't object to her making the call.

One officer approached me from the front and as I moved to talk with him, he requested that I place my camera bag and camera on the ground. I was then approached from the back by another officer who asked me to place my hands behind my back and spread my legs. A professional pat-down was conducted and I was asked for my identification. A total of five officers eventually responded to the call.

After being detained for 1/2 hour I was released. The initial confrontation turning into a more pleasant conversation as time passed.

The Fourth Amendment of the U.S. Constitution prohibits "unreasonable searches and seizures," by government personnel except when they have "probable cause" that a crime has been committed. Unless there is an applicable exception, the police must have a warrant to conduct a search or seizure.

There are seven exceptions to the warrant requirement:

  1. Search incident to arrest
  2. Consent
  3. Automobile Exception-requires probable cause to search
  4. Plain View
  5. Stop and Frisk - based on "reasonable suspicion." Anything observed by sight or touch during that stop and frisk that is illegal can be seized. The police are limited to a search for weapons, but can confiscate other items found.
  6. Hot Pursuit
  7. Administrative Inventory

The fifth exception arose because of the 1968 case of Terry v. Ohio. There, the Court held that police could "stop and frisk" a suspect on "reasonable suspicion" that he had already committed, or was about to commit, a crime. Under Terry and other cases, courts have held that an officer may stop the person for a brief time and take additional steps to investigate further.

Later, in Hiibel v. Sixth Judicial District Court of Nevada (2004), the U. S. Supreme Court held that a person who is not behaving in a way that gives rise to an articulable suspicion of criminality may not be required to state his name or show identification. On the other hand, no violation of Constitutional rights occurs "when police ask questions of an individual, [and] ask to examine the individual's identification, . . . so long as the officers do not convey a message that compliance with their requests is required." See Florida v. Bostick (1991). However, in Hiibel, the Court ruled that Terry principles permit a state to require a suspect to disclose his name [but not identification] in the course of a Terry stop, either by stating his name or communicating it to the officer by other means, such handing over his driver's license, etc.

If you are on the street and the police ask for your name, you may decline, forcing them to establish grounds for a Terry stop. Instead, you may ask, "Am I free to go?" (Since it's a judgment call as to whether the requirements to justify a Terry stop have been met, you may want to give your name without hesitation.) But you don't have to give the officer your driver's license (if you are not driving at the time) or consent to a search of your person, camera bags, or car, despite being warned that you might be in less trouble if you cooperate, unless the police have a warrant or have met one of the exceptions noted above.

Were Mark's Constitutional rights violated? We need more facts to tell. But it appears that he handled the situation professionally, while not giving up his right to shoot. Kudos!

Take my advice; get professional help.

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