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425 - Portable Audio/Video Recorders

425.1 PURPOSE AND SCOPE

This policy provides guidelines for the use of portable audio/video recording devices by members of this office while in the performance of their duties. Portable audio/video recording devices include all recording systems whether body-worn, hand held or integrated into portable equipment.

The purpose of body worn cameras (BWC) and audio recorders is to provide documentary evidence for criminal investigations, internal or administrative investigations and civil litigation. Members shall utilize the BWCs and audio recorders in accordance with the provisions in this policy to maximize the effectiveness of the audio/video documentation to achieve operational objectives and to ensure evidence integrity.

While BWC recordings can provide an objective record of events, it is understood that video/audio recordings may not necessarily reflect the entire experience or state of mind of the individual employee(s) in a given incident. In some circumstances, the BWC will capture information that may not have been heard and/or observed by the involved employee(s). Similarly, there will be situations where the BWC will not capture information that was heard and/or observed by the involved employee(s).

This policy does not apply to mobile audio/video recordings, interviews or interrogations conducted at any Hartwell County Sheriff’s Department facility, authorized undercover operations, wiretaps or eavesdropping (concealed listening devices).

425.2 POLICY

The Hartwell County Sheriff’s Department may provide members with access to portable recorders, either audio or video or both, for use during the performance of their duties. The use of recorders is intended to enhance the mission of the Office by accurately capturing contacts between members of the Office and the public.

425.3 MEMBER PRIVACY EXPECTATION

All recordings made by members on any office-issued device at any time, and any recording made while acting in an official capacity for this office, regardless of ownership of the device it was made on, shall remain the property of the Office. Members shall have no expectation of privacy or ownership interest in the content of these recordings.

425.4 MEMBER RESPONSIBILITIES

Prior to going into service, each uniformed member will be responsible for making sure that he/ she is equipped with a portable recorder issued by the Office, and that the recorder is in good working order. If the recorder is not in working order or the member becomes aware of a malfunction at any time, the member shall promptly report the failure to his/her supervisor and obtain a functioning device as soon as reasonably practicable. Uniformed members should wear the recorder in a conspicuous manner or otherwise notify persons that they are being recorded, whenever reasonably practicable.

Any member assigned to a non-uniformed position may carry an approved portable recorder at any time the member believes that such a device may be useful. Unless conducting a lawful recording in an authorized undercover capacity, non-uniformed members should wear the recorder in a conspicuous manner when in use or otherwise notify persons that they are being recorded, whenever reasonably practicable.

When using a portable recorder, the assigned member shall record his/her name, HCSD identification number and the current date and time at the beginning and the end of the shift or other period of use, regardless of whether any activity was recorded. This procedure is not required when the recording device and related software captures the user’s unique identification and the date and time of each recording.

Members should document the existence of a recording in any report or other official record of the contact, including any instance where the recorder malfunctioned or the member deactivated the recording. Members should include the reason for deactivation.

425.4.1 SUPERVISOR RESPONSIBILITIES

Supervisors should take custody of a portable audio/video recording device as soon as practicable when the device may have captured an incident involving the use of force, an officer-involved shooting or death or other serious incident, and ensure the data is downloaded (Penal Code § 832.18).

425.5 ACTIVATION OF THE PORTABLE RECORDER

This policy is not intended to describe every possible situation in which the portable recorder should be used, although there are many situations where its use is appropriate. Members should activate the recorder any time the member believes it would be appropriate or valuable to record an incident.

The portable recorder should be activated in any of the following situations:

  • All enforcement and investigative contacts including stops and field interview (FI) situations
  • Traffic stops including, but not limited to, traffic violations, stranded motorist assistance and all crime interdiction stops
  • Self-initiated activity in which a member would normally notify Dispatch
  • Any other contact that becomes adversarial after the initial contact in a situation that would not otherwise require recording Members should remain sensitive to the dignity of all individuals being recorded and exercise sound discretion to respect privacy by discontinuing recording whenever it reasonably appears to the member that such privacy may outweigh any legitimate law enforcement interest in recording. Requests by members of the public to stop recording should be considered using this same criterion. Recording should resume when privacy is no longer at issue unless the circumstances no longer fit the criteria for recording.

At no time is a member expected to jeopardize his/her safety in order to activate a portable recorder or change the recording media. However, the recorder should be activated in situations described above as soon as reasonably practicable.

425.5.1 SURREPTITIOUS USE OF THE PORTABLE RECORDER

Members of the Office of The Sheriff may surreptitiously record any conversation during the course of a criminal investigation in which the member reasonably believes that such a recording will be lawful and beneficial to the investigation (Penal Code § 633).

Members shall not surreptitiously record another office member without a court order unless lawfully authorized by the Sheriff or the authorized designee. Violations of this policy is subject to PSB/IA investigation, suspension, and or dismissal pending outcome.

425.5.2 CESSATION OF RECORDING

Once activated, the portable recorder should remain on continuously until the member reasonably believes that his/her direct participation in the incident is complete or the situation no longer fits the criteria for activation. Recording may be stopped during significant periods of inactivity such as report writing or other breaks from direct participation in the incident.

Members shall cease audio recording whenever necessary to ensure conversations are not recorded between a person in custody and the person’s attorney, religious advisor or physician, unless there is explicit consent from all parties to the conversation (Penal Code § 636).

425.5.3 EXPLOSIVE DEVICE

Many portable recorders, including body-worn cameras and audio/video transmitters, emit radio waves that could trigger an explosive device. Therefore, these devices should not be used where an explosive device may be present.

425.6 PROHIBITED USE OF PORTABLE RECORDERS

Members are prohibited from using office-issued portable recorders and recording media for personal use and are prohibited from making personal copies of recordings created while on-duty or while acting in their official capacity.

Members are also prohibited from retaining recordings of activities or information obtained while on-duty, whether the recording was created with office-issued or personally owned recorders. Members shall not duplicate or distribute such recordings, except for authorized legitimate office business purposes. All such recordings shall be retained at the Office. Members are prohibited from using personally owned recording devices while on-duty without the express consent of the Administrative Bureau. Any member who uses a personally owned recorder for office-related activities shall comply with the provisions of this policy, including retention and release requirements, and should notify the on-duty supervisor of such use as soon as reasonably practicable.

Recordings shall not be used by any member for the purpose of embarrassment, harassment or ridicule.

425.7 IDENTIFICATION AND PRESERVATION OF RECORDINGS

To assist with identifying and preserving data and recordings, members should download, tag or mark these in accordance with procedure and document the existence of the recording in any related case report.

A member should transfer, tag or mark recordings when the member reasonably believes:

  • The recording contains evidence relevant to potential criminal, civil or administrative matters.
  • A complainant, victim or witness has requested non-disclosure.
  • A complainant, victim or witness has not requested non-disclosure but the disclosure of the recording may endanger the person.
  • Disclosure may be an unreasonable violation of someone’s privacy.
  • Medical or mental health information is contained.
  • Disclosure may compromise an undercover officer or confidential informant.

Any time a member reasonably believes a recorded contact may be beneficial in a non-criminal matter (e.g., a hostile contact), the member should promptly notify a supervisor of the existence of the recording.

425.7.1 RETENTION REQUIREMENTS

All recordings shall be retained for a period consistent with the requirements of the organization’s records retention schedule but in no event for a period less than 180 days.

425.8 RELEASE OF RECORDINGS

Recordings made using portable recording devices pursuant to this policy are department records and may only be released as provided in the Release of Records and Information Policy or for other authorized legitimate department business purposes.

425.9 REVIEW OF RECORDED MEDIA FILES

When preparing written reports, members should review their recordings as a resource (see the Officer-Involved Shootings and Deaths Policy for guidance in those cases). However, members shall not retain personal copies of recordings. Members should not use the fact that a recording was made as a reason to write a less detailed report.

Supervisors are authorized to review relevant recordings any time they are investigating alleged misconduct or reports of meritorious conduct or whenever such recordings would be beneficial in reviewing the member’s performance.

Recorded files may also be reviewed:

  • Upon approval by a supervisor, by any member of the Office who is participating in an official investigation, such as a personnel complaint, administrative investigation or criminal investigation.
  • Pursuant to lawful process or by court personnel who are otherwise authorized to review evidence in a related case.
  • By media personnel with permission of the Sheriff or the authorized designee.
  • In compliance with a public records request, if permitted, and in accordance with the Records Maintenance and Release Policy.

All recordings should be reviewed by the Custodian of Records prior to public release (see the Records Maintenance and Release Policy). Recordings that unreasonably violate a person’s privacy or sense of dignity should not be publicly released unless disclosure is required by law or order of the court.

425.10 COORDINATOR

The Sheriff or the authorized designee shall appoint a member of the Office to coordinate the use and maintenance of portable audio/video recording devices and the storage of recordings, including (Penal Code § 832.18):

  • Establishing a system for downloading, storing and security of recordings.
  • Designating persons responsible for downloading recorded data.
  • Establishing a maintenance system to ensure availability of operable portable audio/ video recording devices.
  • Establishing a system for tagging and categorizing data according to the type of incident captured.
  • Establishing a system to prevent tampering, deleting and copying recordings and ensure chain of custody integrity.
  • Working with counsel to ensure an appropriate retention schedule is being applied to recordings and associated documentation.
  • Maintaining logs of access and deletions of recordings.

425.11 RETENTION OF RECORDINGS

Recordings of the following should be retained for a minimum of two years (Penal Code § 832.18):

  • Incidents involving use of force by a deputy
  • Officer-involved shootings
  • Incidents that lead to the detention or arrest of an individual
  • Recordings relevant to a formal or informal complaint against a deputy or the Hartwell County Sheriff’s Department Recordings containing evidence that may be relevant to a criminal prosecution should be retained for any additional period required by law for other evidence relevant to a criminal prosecution (Penal Code § 832.18).

All other recordings should be retained for a period consistent with the requirements of the organization’s records retention schedule but in no event for a period less than 180 days. Records or logs of access and deletion of recordings should be retained permanently (Penal Code § 832.18).

425.11.1 RELEASE OF AUDIO/VIDEO RECORDINGS

Requests for the release of audio/video recordings shall be processed in accordance with the Records Maintenance and Release Policy.

Marijuana 426.0 PROPOSITION 64 aka the California Adult Use of Marijuana Act – 2016 The purpose of this policy is to provide members of this department with guidelines for investigating the acquisition, possession, transportation, delivery, production or use of marijuana under California’s recreational marijuana laws. The sale of marijuana by state-licensed vendors only; Personal Possession (HSC § 11357): Adults 21+ can legally possess up to 28.5 grams of flower or 8 grams of concentrated cannabis. Possession of larger amounts is generally a misdemeanor punishable by up to 6 months in county jail and/or a $500.00 fine. After Prop 64, it is still the same – a misdemeanor. For juveniles (under 18) it was previously charged as a misdemeanor with a maximum of 6 months in county jail. After Prop 64, the first offense is an infraction with 8 hours of drug counseling and up to 40 hours of community service. With any additional infractions, there is 10 hours of drug education and up to 60 hours of community service.

Cultivation (HSC § 11358): Adults 21+ can grow up to 6 living plants at their private residence. Exceeding this limit without a commercial license is typically a misdemeanor. Under Prop 64, it is legal for adults 21 years and older to cultivate 6 plants or less. It is an infraction for persons 18 to 20 years of age that comes with a $100.00 fine. You cannot produce a marijuana product using a “volatile solvent” – essentially bars the production of any cannabis drug with unnatural additives.

Possession for Sale (HSC § 11359): Most offenses were downgraded from a felony to a misdemeanor, punishable by up to 6 months in county jail and a $500 fine. The penalties as a misdemeanor are up to 6 months in county jail and a $500.00 fine. However, marijuana possession for sale can still be charged as a felony for those adults who have two prior misdemeanor convictions for marijuana possession for sale; or the marijuana for sale was intended for persons under 18 years of age; or the person selling the marijuana has a prior serious felony (strike) conviction. The maximum penalty for a felony is 16 months to 3 years in prison.

Transportation and Sales (HSC § 11360): Transporting, importing, or selling cannabis without a state license is mostly a misdemeanor for adults. However, transportation of marijuana will still be a felony for those adults transporting the marijuana who have a prior “strike” conviction; have two or more prior convictions for transportation or sale of marijuana; or have previously attempted to sell or furnish marijuana to a minor (under 18 years of age); or who have previously transported or attempted to transport more than an ounce of marijuana or more than 4 grams of concentrated marijuana.

Consumption (HSC§11362.3): enumerates various public uses of marijuana which are all infractions. These infractions are subject to fines from $150 to $250. These infractions include: Smoking in public; smoking within 1000 feet of a school; day care or youth center; possess an open container of marijuana while driving or riding in a vehicle. You may not consume or use marijuana in public. Using or consuming marijuana in public is an infraction (like a traffic ticket) that can be penalized with a $100 fine. You cannot smoke or “vape” any marijuana product in any location that has been deemed a non-smoking location, such as restaurants and most businesses. Smoking marijuana within 1000 feet of a school, daycare or youth center (while children are present) are also prohibited. Possessing marijuana in an open container, or using marijuana, while operating a vehicle or sitting in a moving vehicle. Anyone under the age of 21 caught with less than one ounce of concentrated marijuana (cannabis) is subject to a $100.00 fine. If the person is under 18 years of age, they are subject to mandatory drug counseling or community service as well as a $100.00 fine.

Automatic Relief: The state has provided for the automatic review, sealing, or destruction of eligible marijuana-related rap sheet records dating back decades Public Use: Consuming cannabis in public or where smoking tobacco is prohibited remains illegal and carries a civil fine.

DUI Laws: Prop 64 did not alter California's Driving Under the Influence (DUI) laws; driving under the influence of cannabis remains a crime under the Vehicle Code Youth Offenses: Penalties for those under 21 years of age are generally infractions resulting in drug education and community service rather than jail time

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