Police Blotter: Can a cell phone camera intimidate a witness?

Police Blotter is a weekly News.com report on the intersection of technology and the law.

What: Massachusetts defendant acts like he's taking a photograph of an undercover officer with a cell phone camera.

When: Massachusetts appeals court rules on November 15.

Outcome: Defendant is found guilty of additional criminal offense of witness intimidation.

What happened, according to court documents and other sources: On December 1, 2004, David Casiano was on trial, facing criminal charges relating to drug possession, when he noticed that an undercover police officer was present to testify against him. With camera-equipped cell phone in hand, Casiano exited the court room and acted as if he was taking photographs of the undercover officer and other police officers who were in the hallway outside.

Those officers complained to the judge, who ordered that the phone be confiscated. Casiano was reported saying, after his phone was seized: "What do you think I am...stupid? I already e-mailed the pictures to my house before you took the phone."

A court officer who was asked to inspect the cell phone could not find any photographs of either the undercover officer or any of the other police officers, and couldn't even determine whether the phone was capable of sending e-mail messages.

That led Casiano, 37, to be additionally charged with witness intimidation. (A local news report says he pleaded guilty to and went to jail for trespassing charges related to his original drug charges. Court records say the jury returned a not-guilty verdict on the original drug charge.)

During his subsequent trial on the witness intimidation charge, Casiano essentially invoked the I-was-just-kidding defense. He produced an affidavit from T-Mobile saying his cell phone wasn't even operational on the day of the incident. But the judge rejected it, saying the affidavit was not relevant, apparently on grounds that the threat of a photograph was what mattered. Casiano was found guilty, and he also lost on appeal.

This raises the obvious question: Under what circumstances should defendants--or members of the news media, for that matter--be able to publish photographs of undercover police officers or police informants? And when can merely taking a photograph constitute "intimidation?"

Police have already been alarmed at Web sites like Who's A Rat, which collect reports of alleged police informants and make them available publicly. Boston-area disc jockey Sean Bucci launched Who's A Rat when he was facing his own marijuana charges, and The Boston Globe reported that it outed at least one paid informant for the FBI in Boston.

But because the First Amendment's guarantee of freedom of expression likely protects such Web sites, Who's A Rat remains online.

[qinn404]

Can-a-cell-phone-camera-intimidate-a-witness?

What a bunch of BS, more of our civil rights going down the tubes. What happen to free speech, freedom of expression?!

[krosavcheg]

Simple

Fake drugs = intent to emulate drugs

Fake picture = intent to emulate itimidation

[nedmorlef]

faking patriotism

modern day law enforcement wearing american flags while spending their every waking moment violating constitutional rights with the consent of congress....another version of the fox guarding the henhouse..

[guitarlesson]

From a photo journalists perspective...

...this case is irrelevant. I was a television news photographer for a year, and I was given very simple instructions from my news director: don't shoot undercover officers. The reasons were two fold. 1.) to protect the officers identities who risk their lives daily, and 2.) to maintain good relations with the PD.

Reading the story, I found the judges ruling to be more than prudent. There is no freedom of the press issue here at all.

[Travis Ernst]

In the hallway

If a person is in what could be determined a "public space" such
as a hallway, how could this hold water? Hallways are fair game.
If there was an undercover he/she should NOT have been
exposed publicly. They can in most cases use a side entrance to
shield their face from public view.

It would be, in my opinion, the same as complaining about
somebody taking your picture in public space and saying it is a
threat to you. Sorry, if you don't want your picture taken cover
up your face or do something to disguise yourself. Wear a
Groucho Marx pair of glasses, put on fake facial markings (scars,
warts) so you are not spotted the same as "normal".

If anything LEO's should not be intimidated, they know how to
hold their own.

[tanis143]

For bleeding hearts sake

Ok, the fact was not that he took or pretended to take a picture of the undercovers, it was the REASON he did this. He wasn't a journalist taking pictures of the scene, he was deliberately taking pictures of an undercover cop with the intent to distribute that picture to all his drug friends. He knew the cop would take it that way, that is why he did it. The judge was correct, the defendant did this to try and get the undercovers to not testify in the trial, which is intimidation.

All you "our rights are being stripped away" need to hush. Your rights are still there, however our rights are not ever-extending. For instance, your right to freedom of speech does not allow you to threaten anyone with bodily harm. You can tell a someone "I hate you!" but the moment you utter "I'm going to kill you!" it becomes verbal battery with intent. Seriously, the people who cry out that we are losing our rights usually are the people who do not understand our rights at all.

[therealbean]

Thoughts do matter

yes, thought matters in criminal matters and always has. Intent is one of the principal requirements of criminal action. And it's up to the jury (or in this case, the judge) to determine intent based on the actions of the defendants.

[chash360]

Wrong, but dangerous precedent.

What the defendant did was, well stupid. He should of kept his mouth shut. Especially if he was going to get dismissed on the drug charges. Which is why it sounds suspicous, they couldn't make one charge stick so they trumped up another? Are court trials not a matter of public record? If undercover informants are truely worried about their identity being discovered are they not allowed to be present testimony, without revealing their true appearance? Next time you are in a court house or court room could you get convicted of intimidation just for possesing a cell-phone camera? That is where you will find out if our rights are again being threatened.