By Robert C. Phillips, Deputy District Attorney (Ret)
Updated September, 2022

The Question:

I am periodically asked whether officers can legally seize from private citizens videotaped or photographed evidence depicting criminal acts.  Such videos or photos are commonly contained in a private citizen’s video camera, cellphone, or iPad.  The video or photographic evidence typically is recorded by an uninvolved private citizen (although it may be the suspect himself) who either happened upon the scene of some incident or is a participant in a public protest or demonstration.  The video or photo may be of a criminal act in progress or of an officer’s use of force upon a suspect, or both. 

The question I get is; “If the citizen objects, can I legally seize such photographic, video or tape-recorded evidence anyway ”  My answer to this question has for a long time been:  “I haven’t the faintest idea.”  

In analyzing these issues, I see them as requiring a balancing of a law enforcement officer’s legal authority (plus a strong governmental interest) to seize evidence of a crime or protect officer safety, with the private citizen’s Fifth and Fourteenth Amendment “due process” rights not to be deprived of his or her property ....