Can I Record the Police? Yes, Yes, You Can. October 3, 2021
| There is a Federal Case from Colorado discussing recording police. In Irizarry v. Yehia, the Colorado Federal District Court indicated that recording police is a First Amendment Right that cannot be violated by the state. This case will be appealed by the police union defense lawyers. Watch for a new finding in the 10th Circuit in the months to come. This may even proceed to the United States Supreme Court.  Previously, I wrote the following about the law on recording police in Colorado:  I have read about police officers saying it is illegal for a suspect or witness to record their contact with police, or for a bystander to record a police contact with others. I was threatened with jail myself when I attempted to do this a few years ago. I have seen in police reports that officers confiscate telephones used to record, or to throw them or destroy them. This is illegal. In the state of Colorado, you are allowed to record any incident involving a police officer. Colorado Revised Statutes §16-3-311 is the law specifically allowing this. It is reproduced in full below.  As a practical matter, I suggest not telling the police you are recording them. If they were going to act in a bad manner, they will change their ways. If they want to violate the law, they will destroy your phone. Just start recording as you see the emergency lights behind you or when you see them approaching. Video will be difficult, but audio should be easy. If you can, put the phone with the microphones pointed up towards your face in a pocket that allows the microphones to be exposed.  Remember to be polite, not to incriminate yourself, and to assert your rights not to talk, to have an attorney, and not to be searched without a warrant. Then, do not answer any questions other than identifying information.  If it’s a DUI, refuse all Roadside tests “because your lawyer told you Roadsides are BS.†Once arrested for DUI, choose a blood test for accuracy, and only refuse if you are certain to have a very high number. See my website for more information.  Do not argue with police about what is legal or not. It serves no purpose. The place to discuss the legality of any police action is in Court with a lawyer, not on the street alone with a police officer that can use his authority to make your life difficult. Just wait, the joy will be much better when we win.  BTW – recording a conversation you are not a part of, meaning you are not present for and/or the speakers cannot see you to know you could hear them, is the crime of eavesdropping. You can record any conversation you are a participant in, or that the participants would believe you could hear (think – a conversation at the next table at a restaurant or bar).  C.R.S.A. § 16-3-311  16-3-311. Peace officer incident recordings (1) A person has the right to lawfully record any incident involving a peace officer and to maintain custody and control of that recording and the device used to record the recording. A peace officer shall not seize a recording or recording device without consent, without a search warrant or subpoena, or without a lawful exception to the warrant requirement.  (2)(a) If a peace officer seeks to obtain from a person a device used to record an incident involving a peace officer in order to access the recording as possible evidence in an investigation, the officer shall first:  (I) Advise the person of his or her name, his or her badge number or other identifying number, and the name of the law enforcement agency;  (II) Identify the legal reason for which the information is requested; and  (III) If practicable under the circumstances, inquire whether the person will voluntarily provide the officer with a copy of the specific recording that is relevant to the investigation either by voluntarily providing the device to the officer or immediately electronically transferring the information to the officer or the law enforcement agency so that the person may retain possession of his or her device, the recording, and any personal non-evidentiary private information contained on the device.  (b) If the person consents voluntarily to the transfer of the device to law enforcement, the peace officer shall limit his or her search of the device to a search for the recording that is relevant evidence to the investigation, and the device shall be returned to the person upon request and with all convenient speed.  (c) If the person consents to an electronic transfer of the recording, the electronic transfer shall take place as soon as possible and without unnecessary delay.  (d) In circumstances when the immediate electronic transfer is not practicable or if the person does not consent to the electronic transfer of the evidentiary information or to the seizure of the device, the peace officer may arrange for the transfer or delivery of the information or device with the person to the peace officer or to the law enforcement agency by any alternative means consistent with any policies and procedures of the law enforcement agency.  (e) Notwithstanding the provisions of this section, a peace officer has the authority to temporarily seize and maintain control over a device that was used to record an incident involving a peace officer for no longer than seventy-two hours to obtain a search warrant when exigent circumstances exist such that the peace officer believes it is necessary to save a life or when the peace officer has a reasonable, articulable, good-faith belief that seizure of the device is necessary to prevent the destruction of the evidentiary recording while a warrant is obtained.  (3) The provisions of this section do not apply to devices seized incident to arrest.  (4) Nothing in this section shall be construed to allow a person to interfere with a peace officer in the lawful performance of his or her duties.  Credits  Added by Laws 2015, Ch. 212, § 2, eff. May 20, 2016.  C. R. S. A. § 16-3-311, CO ST § 16-3-311  Current through legislation effective Sept. 1, 2019 of the 2019 Regular Session. Some statute sections may be more current. See credits for details. |