Brian Gotter Tracked And Jacked: The War On Terrorism Comes To Franklin
As a regular feature of his weathercasts, Brian takes photgraphs of local communities. The photographs are then shown on television as a backdrop during his forecast.
According to Brian (please click here to listen to the podcast from yesterday's show), he was driving through Franklin last Saturday afternoon with his wife and four-year-old child on the way back from picking apples. Thinking that the Municipal Building and the public library would make a good backdrop for his weathercast, Gotter stopped and took a couple of photographs. The photography took about five minutes and was done from a public parking lot and sidewalk.
As Gotter was heading out of town, he noticed two squad cars (lights flashing) approaching him from behind at a high rate of speed. Thinking that they were on their way to an emergency, he moved into the right lane. However he quickly realized that he was being pulled over!
After being stopped, Franklin police ran his license plate and cautiously approached his vehicle. They informed him that they had received reports of an individual matching his description taking photographs of public buildings. After identifying himself and explaining what he was doing, Franklin police apologized for stopping him and allowed him to proceed.
Franklin Police Chief Rick Oliva called my program yesterday and confirmed that events occurred as reported by Gotter. Chief Oliva further took the position that taking photographs of public buildings is, in and of itself, evidence of suspicious behavior sufficient to give authorities the right to stop and detain anyone engaging in such behavior.
At the risk of being labeled "soft on terrorism" (which I, of all people, am definitely not) , I think Chief Oliva's position is a lawsuit waiting to happen!
The law is clear that a police officer can approach anyone in public and attempt to ask them questions. However, in order to arrest and/or detain someone (and a traffic stop is, at a minimum, "a detention") police need either probable cause to believe someone has committed a crime or "reasonable suspicion" that a person is suspected of imminent illegal behavior or past criminal behavior.
I'm not sure any judge in the country would take the position that simply taking photographs of public buildings from public areas in the middle of the afternoon gives authorities a legal basis to detain an individual. As a matter of fact, Chief Oliva might want to take a look at a recent operational order issued by the New York City Police Department which specifically holds to the contrary. It seems to me that if officials in New York City recognize that there's no legal basis to detain someone simply for taking photographs of public buildings, it's hard to argue that it's justified in Franklin, Wisconsin.
I readily concede that there may be circumstances where taking photographs may provide reasonable suspicion of a crime. For example, if Gotter had been slinking around the rear of the Municipal Building at 2:30 a.m. dressed as a ninja and carrying an infrared camera (what an image!), I think there would be a basis to detain him. If he had been creeping around an unfinished subway with a camera, there might be a basis to detain him. However he wasn't sneaking photos of a military base, he was photographing the public library!
Chief Oliva correctly points out that most terroriost acts have been preceded by terrorists taking photos of their targets. I suspect however that most terrorists also brushed their teeth prior to committing their crimes. Can police detain everyone who brushes their teeth? Has this little thing we call the Fourth Amendment completely disappeared?.
Think of where this has the potential to go. Should police really be able to stop and detain every tourist who walks down Wisconsin Avenue and photographs the Art Museum, the Federal Courthouse and the Pfister Hotel?
Many might well argue, what's the harm? Isn't it better to be safe than sorry?
Here's the problem with that thinking.
First, while Brian Gotter is not going to sue the Franklin Police contending that he was illegally stopped, the next person pulled over might not be as understanding. Further, what happens if the next person is a young Arab male who happens to be an amateur photographer? Will his detention be more than momentary? If so - and if he files a lawsuit - will his damages be as mimimal?
Second, if someone is stopped illegally, any evidence found as a resuilt of the illegal stop is typically not admissible in court. Wouldn't it be a shame to lose a prosecution simply because of some overzealous investigative techniques?
Third, this is still a free country. As several of my callers said Friday, do we want to become a complete police state is the name of national security?
. While we disagree on this issue, I don't think Chief Oliva is a bad guy. If the Franklin Police think it's worth their time to check out someone who is taking pictures of the library, fine. They can get identifying information, run license plate numbers and commence an investigation. What I don't think they can do is start making traffic stops without reasonable suspicion or probable cause that someone has committed a crime.
Maybe the Wisconsin Attorney General, the Milwaukee County DA or the Franklin Corporate Counsel will take the position that traffic stops based solely on these facts pass legal muster. If so, fine - go with god. I do think however that Chief Oliva would be well advised to discuss this issue with them before he has the next photographer tracked and jacked.