With his family and pumped some gas before stepping into the station’s convenience store and heating up a pizza.
When he stepped out, a Charles County sheriff’s deputy was demanding his identification, accusing him of driving with an unrestrained baby in the front seat.
Harris, 29, a hip hop artist who goes by DC Prophitt, denied the allegation, pointing to his one-month daughter who was restrained in the back seat.
Charles County sheriff’s deputy Gass insisted that Harris’ girlfriend placed the baby in the seat after they pulled into the station. He also accused Shanita Simms of breastfeeding the baby in the front seat, but that is not illegal in Maryland.
Gass claimed he spotted all this when they pulled into the station where he was parked. Harris told him his girlfriend only had a blanket wrapped around her shoulders.
Nevertheless, Gass began writing a ticket as a female deputy pulled up. Sensing that his rights were being violated, Harris asked the deputies to call a supervisor.
But that just made things worse.
“At first, (the supervisor) acted nice, but when I tried to explain things to him, he jumped in my face,” Harris said in a telephone interview with Photography is Not a Crime Wednesday.
Harris became upset and began cussing. Simms pulled out her phone to record, capturing deputies arresting Harris after threatening to taser him. Harris’ 3-year-old daughter, who was in the backseat along with the baby, started crying.
Then they confiscated her phone, claiming they needed it as “evidence” – even though it has long been established the police do not have the right to seize cameras.
In fact, the United States Department of Justice made that clear in 2012 when it sent the Baltimore Police Department a detailed statement explaining that police can only seize cameras under “exigent circumstances” – meaning they suspect the evidence may be destroyed – which is exactly what Harris accuses them of doing.
Despite the obvious Constitutional violations against Harris, he was convicted Tuesday of disorderly conduct, failure to obey a lawful order and driving with an unrestrained child in the front seat.
He said the evidence used against him was his girlfriend’s video, which was edited to remove the portion where a deputy climbed into his car and confiscated her phone – which they still have not returned.
Harris also said that all three deputies testified that their dashcams were not working at the time.
Three patrol cars. Three dashcams. Not a single one working.
They also claimed the surveillance from the gas station was not working either, a video Harris tried to obtain the day after his arrest, only to be told he had to go through corporate, who, in turn, told him he needed to get a court order.
The employees at the Dash In also told him Charles County deputies had already obtained the footage, apparently not having to go through such hurdles.
And even though it took ten months for his trial, deputies did not provide his public defender with the footage they planned to use against him until Monday, the day before the trial.
Harris posted the video on Facebook Monday, which predictably led to many of his friends becoming angry at his treatment.
Deputy Gass claimed in court that Harris’ friends began calling him, threatening him and his family, making them all fear for their lives.
But that would have led to further arrests if it were true.
“He said that after I was convicted but before I was sentenced when the judge asked if he had anything to say,” Harris said.
Harris was sentenced to 120 days in jail, but that sentence was suspended, so he ended up with two years probation and community service.
Harris said the judge, whose last name is Cooper and whom his attorney referred to as a “visiting judge” because he was from another county, sentenced him to 120 days in jail, but suspended that sentence, giving him two years probation and community service.
He was not sure of the judge’s first name, but there is only one other male judge in Maryland with that name, Leon Robert Cooper who normally presides in Baltimore County.
And although his public defender led him to believe deputies would be returning his phone during the trial, they told her they didn’t have it, refusing to provide any further information on how to obtain it.
So apparently they expect him to just forget about it, seeing how they are above the law in that county.
But it must be stressed. They had no right to seize it in the first place. And they should be sued for it.
In fact, the Baltimore Police Department dished out $250,000 to a man named Christopher Sharp in 2014 for the very same thing.
And it was the Sharp case that prompted the Department of Justice to issue its statement of interest to the Baltimore Police Department in 2012, advising them how to draft a departmental policy, which they were incapable of doing themselves (no exaggeration).
Here is the excerpt that pertains to this case:
Policies on individuals’ right to record and observe police should provide officers with clear guidance on the limited circumstances under which it may be permissible to seize recordings and recording devices. An officer’s response to an individual’s recording often implicates both the First and Fourth Amendment, so it’s particularly important that a general order is consistent with basic search and seizure principles. A general order should provide officers with guidance on how to lawfully seek an individual’s consent to review photographs or recordings and the types of circumstances that do—and do not—provide exigent circumstances to seize recording devices, the permissible length of such a seizure, and the prohibition against warrantless searches once a device has been seized. Moreover, this guidance must reflect the special protection afforded to First Amendment materials.
Policies should include language to ensure that consent is not coerced, implicitly or explicitly. See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (“[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.”). In assessing whether an individual’s consent to search was freely and voluntarily given, Courts may consider “the characteristics of the accused . . . as well as the conditions under which the consent to search was given (such as the officer’s conduct; the number of officers present; and the duration, location, and time of the encounter).” United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). BPD’s explanation of the process for obtaining consent includes clear guidelines regarding what steps an officer should take once an individual provides an officer with consent to review a recording. However, BPD’s general order should include language to ensure that consent is not coerced, implicitly or explicitly.
Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” United States v. Place, 462 U.S. 696, 701 (1983). Any such seizure must be a “temporary restraint where needed to preserve evidence until police c[an] obtain a warrant.” Illinois v. McArthur, 531 U.S. 326, 334 (2001). Seizures must be limited to a reasonable period of time. For example, in Illinois v. McArthur, the Supreme court upheld a police officer’s warrantless seizure of a premises, in part, because police had good reason to fear that evidence would be destroyed and the restraint only lasted for two hours – “no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant.” Id. at 332. Once seized, officers may not search the contents of the property without first obtaining the warrant. Place, 462 U.S. at 701 & n.3. In the context of the seizure of recording devices, this means that officers may not search for or review an individual’s recordings absent a warrant.
Police departments must also recognize that the seizure of a camera that may contain evidence of a crime is significantly different from the seizure of other evidence because such seizure implicates the First, as well as the Fourth, Amendment. The Supreme Court has afforded heightened protection to recordings containing material protected by the First Amendment. An individual’s recording may contain both footage of a crime relevant to a police investigation and evidence of police misconduct. The latter falls squarely within the protection of First Amendment. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”). The warrantless seizure of such material is a form of prior restraint, a long disfavored practice. Roaden v. Kentucky, 413 U.S. 496, 503 (1973) (when an officer “br[ings] to an abrupt halt an orderly and presumptively legitimate distribution or exhibition” of material protected by the First Amendment, such action is “plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.”). See also Rossignol v. Voorhaar, 316 F.3d 516, 522 (4th Cir. 2003) (Where sheriff’s deputies suppressed newspapers critical of the sheriff “before the critical commentary ever reached the eyes of readers, their conduct met the classic definition of a prior restraint.”). An officer’s warrantless seizure of an individual’s recording of police activity is no different. See Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D. Penn 2005) (By restraining an individual from “publicizing or publishing what he has filmed,” officer’s “conduct clearly amounts to an unlawful prior restraint upon  protected speech.”); see Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634, 637 (D.Minn. 1972) (“it is clear to this court that the seizure and holding of the camera and undeveloped film was an unlawful ‘prior restraint’ whether or not the film was ever reviewed.”).
The warrantless seizure of material protected by the First Amendment “calls for a higher hurdle in the evaluation of reasonableness” under the Fourth Amendment. Roaden v. Kentucky, 413 U.S. 496, 504 (1973). Police departments should limit the circumstances under which cameras and recording devices can be seized and the length of the permissible seizure. BPD’s general order does not convey that the warrantless seizure of recording material is different than the warrantless seizure of many other types of evidence, in that it implicates the First, as well as the Fourth, Amendment. General Order J-16 should make it clear to officers that, in the ordinary course of events, there will not be facts justifying the seizure of cameras or recording devices. Moreover, General Order J-16 does not define “temporary” seizure. BPD should clarify how long and under what circumstances an officer may seize a recording device, even temporarily, and how the recordings on the device must be maintained after seizure. A policy permitting officers, with supervisory approval, to seize a film for no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant if that film contains critical evidence of a felony crime would diminish the likelihood of constitutional violations.
In other words, the only legal way deputies could have seized Simms’ camera without a warrant is if she was using it in during the commission of a crime such as child pornography where the camera becomes a tool of the crime, not just a tool to document whatever alleged crime may have occurred.
After all, the USDOJ points out, a camera could very well include evidence of police misconduct, which thanks to YouTube, we now know is a daily occurrence in this country.
The fact that Harris was arrested for disputing a citation indicates that deputies did have something to hide, which is why the supervisor, Sergeant Smith, felt the need to confiscate her phone after arresting her boyfriend.
The video that was used as evidence stops at 6:27 in the midst of the action, even though Simms said she continued recording up until he confiscated the phone.
“I was still videotaping him and he told me to give him my phone because it was his evidence,” Simms said.
“I sat in the car and started crying and he put all his weight on me. I was leaning over on the drivers seat, trying to keep my phone away from him but he took it.”
And once he seized her phone, a Samsung, he demanded her passcode, but she refused to give it to him.
“He said, ‘we have ways to get into it,'” she said.
Meanwhile, Harris is sitting handcuffed in the back of the patrol car watching the sergeant seize her phone.
“He is two times bigger than me, she is two times smaller than me,” he said. “I’m seeing his whole body in the car and he comes back out with the phone.”
Harris said they later tried to retrieve the video through auto backup, which is a cloud service used by Samsung, but by then, everything had been wiped out.
In their complaint, deputies claimed that Harris had become so disorderly, that a crowd gathered around to watch, which is how they were able to convict him of disorderly conduct.
And in their testimony, deputies estimated the crowd to be about 20 people.
But the video, posted below, shows there was not more than three people in the gas station, all of them tending to their business, pumping gas into their cars.
However, none of that mattered to Judge Cooper who said Harris was guilty beyond a reasonable doubt on all charges.
But the only thing that was proven during his trial was that the system is broken. Beyond a reasonable doubt.
Call the Charles County Sheriff’s Office to remind them they had absolutely no legal right to seize his phone at (301) 932-2222. Or just leave a comment on their Facebook page.
Below is one of his music videos, a song titled “I can’t cry.”