Cell phone videos during traffic stops have caught some horrific acts, including abuse and brutality by police officers. However, the police can become hostile when someone points a camera at them, even after getting pulled over for a minor traffic violation. Having video footage of your arrest may be able to provide evidence to support your case if you are accused of criminal activity.
In general, the public in California can record video of police officers during a traffic stop. However, it is important to understand the limits to recording the police and what might happen if things go wrong. If you end up under arrest for drunk driving in the East Bay, or are charged with other criminal offenses, talk to an experienced attorney about your rights. Contact East Bay DUI defense lawyer, Lynn Gorelick, to help you fight criminal charges.
Right to Record Police in Public
Generally, you have the right to record police officers that are in the normal course of their duties, as long as you are not interfering with police activity. This includes using a mobile phone or dash cam to record a police officer who is conducting a traffic stop. Similarly, if you are recording the police while in public in the normal course of their duties, it does not give the police reasonable suspicion that you are involved in a crime.
Just because you have the legal right to record a traffic stop does not mean that the police won't try to interfere with your rights.
However, it is more important to be safe when there is a problem during an arrest. Do not fight back if the police are trying to stop you from making a recording. Fighting back can be dangerous for you and others in the vehicle. It is better to take your case to court, where the judge will determine who was in the wrong and you can have the benefit of an experienced attorney to help you expose the wrongful treatment.
Police Officer Body Cams and Dash Cams
Why should the police be the only ones who can take video recordings during an arrest? Most law enforcement vehicles in California are equipped with dash cams. Many people know these from online videos where they see a dangerous roadside encounter, drunk drivers failing field sobriety tests, or funny arrest clips. However, the police may be able to use these videos to use as evidence in the criminal case against the driver. If the police can record video of the driver, the driver should have the right to record the wrongdoing of the police.
Wrongful Arrests of Lawful Activity
Many people have been harassed by police officers when staying totally within their rights. In other situations, the police may misrepresent the law when telling drivers, passengers, or bystanders that they are not allowed to record video images. Some people take the police at their word and turn off their phones because they don't want to get in trouble, which may lead to unlawful activity off-camera with no video evidence of what really happened.
One of the ways police officers can try and stop people from recording is by claiming that the person is interfering with the duties of the police officer. In some cases, the police may try and arrest the individual, alleging the person recording the video was resisting arrest.
Resisting Arrest in California
Police officers often use the charge of resisting arrest in addition to other criminal charges if the suspect appears to be questioning what is going on or trying to explain the situation instead of cooperating with the police. Many resisting arrest charges are later dropped because there is no evidence of any violation, or the prosecutor drops the charge as part of a plea bargain.
Under California Penal Code 148, it is an offense to willfully resist, delay, or obstruct any public officer, peace officer, or an emergency medical technician, in the discharge or attempt to discharge any duty of their office or employment.
In the context of a video recording, someone can be pulled over by the police for some unknown reason. The driver then pulls out their mobile device to record the situation. An officer could come up and ask for the driver's license and registration. When the officer sees the camera, they could try and tell the driver to put the phone away, even if it is within the driver's legal rights to record the encounter.
If the driver does not stop recording, a police officer may try and arrest the driver, claiming the officer:
- Was lawfully performing their duties;
- The driver willfully resisted, obstructed, or delayed the officer; and
- The driver knew or should have known the officer was performing their duties.
The penalties for resisting arrest can include jail time of up to one year and a fine of up to $1,000. If the police arrest you for doing something that is not illegal, do not just accept a plea deal for reduced charges. You may be able to fight back and keep your record clear, to avoid any criminal penalties and make sure the police don't violate your rights.
Can I Stay Silent During a Traffic Stop?
A video camera can record your traffic stop and you don't have to say a thing. The right to remain silent is part of the 5th Amendment protection against self-incrimination. If responding to the police could incriminate you of a crime, you don't have to say anything. You can stay silent, tell the police that you are not going to answer any questions, or that you want to talk to your attorney. In many cases, staying silent is better than responding.
Experienced DUI Defense Attorney
Lynn Gorelick has more than 39 years of East Bay criminal defense experience and understands the penalties involved with criminal charges. She understands how to approach the individual facts of each case for the greatest chance of success to keep her clients out of jail. If you are facing criminal charges anywhere in Alameda County or Contra Costa County, contact Lynn Gorelick.