Police, The Fourth Amendment, Qualified Immunity

Worrisome decision on recording the police

with 3 comments

Case: FINDLAY v. LENDERMON, Cause No. 4:10-CV-98-TLS (N.D. Indiana, November 28, 2012)

What happened: Policeman went to plaintiff’s grandmother’s house to interview plaintiff about some possible trespassing in connection with a boundary dispute that plaintiff was apparently having with a neighbor. Plaintiff video recorded the interview with the policeman. After the interview the policeman decided to seize the video recording (as embodied on a “chip”*). The policeman maintains that he was allowed to seize the chip under the “plain view” exception to the warrant requirement of 4a. Plaintiff resisted the seizure of the chip and was forcibly arrested for obstruction. Plaintiff sued the policeman for, among other things, unConstitutionally seizing his chip in violation of 4a.

Decision: Policeman’s seizure of the recording is 4a-permissible under “plain view” doctrine. Court declined to rule on alternative proposed justification based on “exigent circumstances.”

Criticism: If the statements on the video showed probable cause of a crime, then the policeman should have made an arrest (of whomever was guilty, the plaintiff or his neighbor). Judge Springmann’s opinion apparently concedes that the statements did not give “probable cause,” not in and of themselves, and not even in conjunction with what the policeman knew at the time of the consensual interview. In this case, there was no “probable cause” to believe a crime had been committed, and therefore no probable cause to seize anything. “Plain view” is an exception to the warrant requirement, not the probable cause requirement. This is where Judge Springmann’s 4a analysis falls down badly, and hopefully why her decision will be reversed in this case. The opinion states that there was probable cause to believe that the statements were “linked” to criminal activity, but that is not good enough both because there was no probable cause of any crime, and for the further reason that there was not probable cause to believe plaintiff’s statements on the video would help to establish his guilt of the suspected crime.**

Another criticism: It is clear that plaintiff made this recording of the policeman in order to protect himself from the possibility that he was being interviewed by a dishonest policeman. A rule saying that a policeman, who is suspected (correctly or not) of being dishonest, and who is being recorded for that reason, has the right to seize the video is a bad rule for reasons that are so obvious that an explanation on this point would be insulting.


* The opinion is not too clear on the point, but it appears that police seized plaintiff’s camera, in addition to seizing his “chip.” Presumably, the policemn was not sure whether the recording resided on the chip or on the camera, although explanation of this point, in the opinion, would have been helpful.

** Plaintiff was never charged with trespassing, despite the taking of the video “evidence.” The opinion does not state whether the video was used to help prosecute the neighbor for trespassing, or, if not, why not.

Written by Burgers Allday

December 1, 2012 at 5:31 pm

Posted in Uncategorized

3 Responses

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  1. “In this case, there was no “probable cause” to believe a crime had been committed, and therefore no probable cause to seize anything. ”

    There was probable cause that criminal trespassing had exist. The arrest didn’t happen due to the limitations in Indiana law. Criminal trespass, in this case, would be a misdemeanor. Indiana law limits on which misdemeanors law enforcement officers can arrest outright without a warrant. In this case, the deputy confiscated the camera and/or data card as evidence, then obtained a warrant to view it later. The deputy did make an outright arrest for resisting, obstruction, and conversion, hopefully because he witnessed those violations (they are all misdemeanors, with some felony enhancements). Not sure why the state didn’t end up going through with the charges.


    December 2, 2012 at 5:39 am

  2. Nice try, but not correct. Under Indiana law, one must knowingly and intentionally enter the property of another. There was not probable cause that plaintiff (when he took down the camera), or Officer Lorton (when he set up the camera), knew that they were on the property of another. Presumably, one of them was and one of them wasn’t, but where probable cause fails is that there was no reason to believe that the party who did encroach knew that he was encroaching, as required by the statute in order to turn the encroachment into a criminal trespass. Ergo, there was no probable cause that a crime had been committed by either side of the boundary line dispute. This would also explain why Indiana ended up charging nobody, not plaintiff and not Officer Lorton.

    Furthermore, if plaintiff had confessed that he knowing and intentionally entered the neighbor’s property, then my guess would be that the policeman could have arrested him then and there, misdemeanor status of the crime notwithstanding. In other words, probable cause of a crime did not exist before the consensual interview and it did not spring into existence during the interview.

    All that said, thanks for commenting here at police4aqi. It is a healthy discussion to have, I think.

    Burgers Allday

    December 2, 2012 at 7:05 am

  3. […] There are so many things wrong with Springmann’s ruling, especially the part where they never even charged Findlay with trespassing, but I’m going to leave you with the criticism from a blog called police4aqi. […]

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