Violation of BWC policy –> case dismissed

by Jamison Koehler on December 18, 2020
Body worn camera

According to the police report, the defendant gave officers consent to search his vehicle after he was pulled over for a traffic violation.  The problem?  Police officers had not turned on their body worn cameras (BWCs) at the time of the consent.  In fact, all three officers involved in the traffic stop waited until after the suspect had been removed from the car and put into handcuffs before activating their cameras.  This means that, because the cameras are programmed to preserve video but not audio for the previous two minutes after the camera has been turned on, there was no audio of the alleged consent.  We are asked instead to take the officers’ word for it.  

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Baltimore city police officer Richard Pinheiro Jr. learned about the continual recording of the body worn cameras the hard way.  His BWC recorded him planting evidence – a bag of heroin — in a trash strewn lot.  He then walked back to the street and activated his camera so that he could capture his recovery of the contraband on camera.  He did not realize that his previous actions had also been recorded. 

Stupid, right?  The man who spent 6 months in jail because of the officer’s malfeasance did not find this amusing.  Pinheiro was ultimately convicted of the misdemeanor offense of fabricating evidence.  

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Body worn cameras have forever changed criminal prosecutions.  In some cases, they help the government.  It is hard to dispute assault on a police officer, for example, when the defendant is captured threatening the officer and then charging at him.  

On balance, however, I think they help the defense.  In the old days, police officers could get up on the stand and testify to whatever they wanted to.  Judges and, to a lesser extent, juries tended to believe them. Now there is independent verification, and the difference is usually in the details.  Officers remember the big stuff.  They often mess up on the little stuff.  Officers also spend a lot of time hanging around, waiting for the transport to arrive, for example, or the crime scene technicians.  They talk during this time.  The talk is recorded.  The recordings are turned over to defense counsel as part of discovery.

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The BWCs have led me to an increased appreciation for police officers, at least from I have seen in D.C. 

Watching things from the officer’s perspective as the officer searches a house at night, checking into each closet for suspects, gives you a better understanding of the risks to personal safety they face.  

You also see how well they can deal with people undergoing crises in their lives.  You watch, for example, as the officers calm the children of a suspect during an arrest.  You admire their patience as they deal with a person suffering from mental health and addiction issues.  

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Admiration aside, the actions of the officers in this particular case – the case in which the suspect supposedly consented to the search of his car – are suspicious.  According to the departmental directives that all police-initiated interactions with citizens are to be recorded, why do the officers wait until well into the stop before turning on their cameras? 

We will never know.  Apparently seeking to protect the officers from potential disciplinary action, the government quietly dismisses the case.  

3 Comments on “Violation of BWC policy –> case dismissed

  1. As long as you have political pressure, human flaws, incentives and quotas, to name a few things that press upon the officer’s duties each day, you will have officers that will skate the system. You do have honest officers and, by the same token, you do have officers that will act nefariously. Here are a few concerns I have with local law enforcement.

    1. The age at which local police/sheriff’s academies accepts its cadets is WAY too young. The first concern would be the level of maturity of the officers. The “State” is placing a gun and badge in their custody without a more detailed evaluation of the officer’s 18 – 20 year old mindset, upbringing and ideologies. And as we have witnessed time and time again, many officers not only use the police/sheriff’s force to exact their often questionable ideologies on the public, but they also have hidden racist or extremist views that are unchecked, until a member of the public is murdered by their hands – often covered up as “justifiable”.

    2. It is interesting to note the stark differences in the quality of officers/agents between local law enforcement and state/federal law enforcement organizations. For example, most State Trooper’s requirements include a minimum age of 21, an Associates Degree or higher (and many states now require a Bachelor’s degree), and an extensive background check, check of affiliations, family/friends/associates check, and an extensive mental and psychological evaluation. It is hard pressed to find a State Trooper acting in ways, that have been heavily chronicled in the media, similar to local police shooting and killing POC indiscriminately. At the very inclining or sign of questionable ideology or “behavioral building up to a questionable action”, a State Trooper is evaluated and often removed from duty. A very similar aforementioned process also goes for Federal Agents. You can’t act and behave the same way as a local police or sheriff’s deputy and serve at the State and Federal level.

    3. Lastly, I believe one of the main reasons local police can act and get away with 99% of their actions is because they are protected by the DA, superior officers (including elected officials), and their Union. When you have a very low bar of accountability, then you can do almost anything with impunity. We have WAY too many examples of local police forces (dating back to the “hay days” of Al Capone and Organized Crime), where police officers at every level were easily bought and involved in gangland killings and drug activities. Even some moonlighting as assassins/hitmen for the Mob.

    What is needed is accountability and consequences that, (in this article’s example) any violation of the BWC Policy cannot be tolerated or accepted. If the BWC can be manipulated by the wearer then there’s no need for it. Too many actions can be wiped clean or manipulated in the officer’s favor, at the detriment of the community they serve. I mean really, if I can just turn off my speedometer and cover my car with a reflective alloy that deflects all radar guns, then I can just speed everywhere – of course placing other drivers at grave risk with my actions.

    A body cam is there to hold the officer accountable and to record evidence so that a court of law can adjudicate with a first-hand account of the incident in question. And to suggest, now that officers have a body cam, that the public, by the same token, are not allowed to take out their cell phones and record an officer going WAY over the line, is preposterous. That’s another discussion for another time.

    Anyway, great article and I just wanted to share my thoughts as a former Military Police Officer and Veteran.

  2. Mr. Smith:

    Thank you for taking the time to share your insights.

    I know that many people, including many criminal defense lawyers, view police officers as the enemy. I think things are a tad bit more nuanced than that.

  3. It is most unfortunate indeed. But I believe if officers decided to simply act with honor, dignity and accountability, they would not have such a bad reputation among defense attorneys and/or the general public.

    Look, we can just consider the policing from numerous other countries that have low crime rates, low police brutality cases, low police killings (if any), and see that better community policing does work.

    Or just implement my aforementioned requirements that local police need the same requirements, training and accountability as State Police and Federal Agents, and I guarantee we would see a drastic change in the actions and behavior of police in the community.

    When you put boundaries and consequences in play at every level, from Police Chief/Commissioner to Patrol Officer/Deputy Sheriff, you’ll see a whole new law enforcement system that actually Serves and Protects.

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