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Can You Be Arrested for Not Delivering Video or Audio Tapes?

A Washington alarm company owner is facing felony charges for refusing to turn over video surveillance tapes to police in connection with an armed robbery investigation.



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A Washington alarm company owner is facing felony charges for refusing to turn over video surveillance tapes to police in connection with an armed robbery investigation. (You can read about the story here.)

Apparently the suspects were staying at a motel or seen in a motel lobby and believed to be captured on the motel’s video. When police asked the motel owners for the video data they were told to contact the alarm company, Moses Lake Security. The alarm company owner apparently made a copy of the video, but he never delivered it to police. He then went out of town and, for whatever reason, was uncooperative upon his return.

The police got a search warrant for the alarm owner’s house. The copy of the video was on a disc, which the alarm owner claimed broke in his trunk and the video data at the motel was deleted. The alarm owner was arrested for rendering criminal assistance for failing to turn over the video data and is now facing 10 years in jail.

Talk about a bad day. One can only imagine why the alarm company owner did not comply with police requests for the data, but it doesn’t appear to be because he was involved in criminal activity. It appears to start with neglect and other matters, including medical issues, diverting the alarm company owner’s attention, a trip out of town, and the police request ultimately perceived as harassing over something the alarm company owner didn’t really want to be bothered about. 

Video data is generally collected and stored in one of two places. Local DVRs will store the data onsite at the subscriber’s premises. The DVR is typically set to record over the data after a certain time period, ranging from one day to one month. Data can also be stored at the central station or in the cloud, and retrieval permitted by the subscriber either on request or anytime by the central station or storage facility permitting electronic access. 

The first question that might arise is who owns the data? That is pertinent when a request is made for the data since only the owner would have a right to the data, except for law enforcement. If the data is stored on the local DVR then the answer is easy —the subscriber owns the data. But if the data is stored elsewhere it’s not as clear, unless your contract addresses the issue, which it should. The Standard Form Contracts at www.alarmcontracts.com provide that the central station owns the data.

The next question that comes to mind is what obligation does a business or anyone have to install surveillance systems and how long must data be maintained? Unless your municipality requires particular security or surveillance systems, and I don’t know of any jurisdiction that has such requirements, you are not under any duty, legal or otherwise, to install and maintain such systems. But what if you do? What duty then arises regarding maintaining the records? 

Absent a specific law or contract you are not under any obligation to maintain the data for any period of time, unless you are on notice of an event where the data might be useful as evidence. Failing to maintain data or destroying data after you are on notice would be spoliation of the evidence, and would create an adverse inference at time of trial. 

Finally, where does law enforcement come into play regarding access to the data? If you decide to install the surveillance, and if you decide to store the data, and if you have it when a request is made by law enforcement for the data, I think you need to comply with the request. If it’s your data (and especially if you’re a “target” of an investigation) you could demand a warrant. But you need to preserve the data once it’s requested. The police are entitled to a reasonable response, so if you’re having a particularly bad day, don’t make it worse — comply as soon as you are able. 

 


Article Topics
Blogs · Business Operations · Laying Down the Law · All Topics

About the Author
Ken Kirschenbaum
Security Sales & Integration’s “Legal Briefing” columnist Ken Kirschenbaum has been a recognized counsel to the alarm industry for 35 years and is principal of Kirschenbaum & Kirschenbaum, P.C. His team of attorneys, which includes daughter Jennifer, specialize in transactional, defense litigation, regulatory compliance and collection matters.
Contact Ken Kirschenbaum: ken@kirschenbaumesq.com
View More by Ken Kirschenbaum
Business Operations, Laying Down the Law


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