Pulling out your phone to record during a police encounter often provokes hostility from officers. However, citizens still have clear constitutional rights to document law enforcement officers at work. Yet, knowing the exact limits of your rights may help you avoid pretextual charges.
Filming police officers in public
The First Amendment protects your right to film police officers in public spaces across New Mexico. Several federal appeals courts have affirmed that civilian recordings serve as a check against government overreach and misuse of power by police. Officers cannot lawfully order you to stop recording simply because recordings make them uneasy. You may capture audio and video from public sidewalks, streets and parks.
Avoiding obstruction allegations
The law does not allow a bystander to block active police work. Police may set reasonable limits to protect public safety or secure a crime scene. Staying at a safe distance lets you record the scene without giving officers an excuse to claim interference. Officers may use vague obstruction laws to discourage bystanders from recording. Staying calm and keeping your hands visible can protect your legal rights. If an officer attempts to take your phone, clearly state that you do not consent to the seizure, then comply physically. A clear video recording can serve as strong evidence against false claims or retaliatory charges.
Can the officers search or seize your phone?
Officers cannot search your phone’s contents without a valid warrant, and they cannot lawfully delete your recordings, as it may constitute unlawful destruction of evidence. Furthermore, taking a bystander’s phone without a warrant or a narrow legal exception is usually an unconstitutional seizure under the Fourth Amendment. If the police try to seize your phone or any recording device, clearly stating that you do not consent to the seizure creates a contemporaneous record that may support a legal challenge later.
Defending civil liberties
Unlawful arrest or property seizure for filming police officers may violate constitutional protections and could give rise to a civil rights claim. Seeking help from a civil rights attorney can help you understand what happened and whether you have grounds to pursue a formal legal claim.