If a man robbed a bank today and a red light photo enforced intersection or a toll system camera snapped a photo of his car as he sped away, police and prosecutors would not be allowed to use the images against him in any criminal investigation.
But a bill making its way through the Legislature aims to change that.
Where current state law says the images can only be used to prove traffic violations, House Bill 1047 would make “the records, photographs, digital photographs, microphotographs, videotapes and other recorded images,” available to law enforcement officers who first obtain a lawfully-issued search warrant.”
Lawmakers wrote in the restriction to prevent authorities from misusing photos and footage in violation of privacy rights.
According to a release from the King County Prosecutor’s office, the restriction, while well intentioned, is “too strict” because it prohibits the police from seeking a search warrant, “which a judge would have to approve, to view the photos and footage in the course of a criminal investigation.”
Twice in the last year, according to the release, Seattle Police homicide detectives were prohibited from obtaining traffic control camera footage in the course of an unsolved murder investigation. Even if the police had sought and obtained a search warrant approved by a Judge, the release states, the police could not have used the evidence to prove criminal wrongdoing at trial.
Auburn Defense Attorney Tom Campbell noted that the amendment keeps in place established constitutional guarantees of due process.
“As a defense lawyer, it’s really difficult to argue that people don’t have the protection of the Constitution under this language,” Campbell said, noting that law enforcement still has the responsibility to take a warrant establishing probable cause to a judge or a magistrate before it can actually get those images.
“The images aren’t going to be available to any other person,” Campbell said. “For instance, in civil lawsuits you couldn’t get to it, so it hasn’t opened up anything in that sense … The criminal defense lawyer in me, however, would be wondering why only law enforcement would have access. Certainly, if I wanted to establish a defense on my client’s behalf and thought that there were images favorable to the defense depicted on photo enforcement cameras, as a defendant I think I would be entitled to those.”
Auburn Police Chief Bob Lee did not respond to a request for comment.
The King County Police Chiefs’ Association, the Washington Association of the Prosecuting Attorneys and dozens of police agencies support the amendment.
