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Why you don’t have to give your smartphone to police at a crime scene

The rights of witnesses at crime scenes and their video evidence
WATCH: Questions are being raised about what rights people have when they witness something and capture it on their camera or smartphone. Do they have to turn over your device to police? Ted Chernecki investigates.

What are your rights if police want your smartphone or other device as evidence?

The actions of Vancouver Police Department officers are being questioned a day after a police-involved shooting near Hastings and Cassiar Streets.

READ MORE: Man arrested following police-involved shooting in Vancouver

“I need to take that as evidence, sir,” an officer says to a person with smartphone footage at the scene.

“No, it’s mine. My property,” the man responds.

“Not anymore. This is under investigation, so I need to take that video as evidence,” responds the officer.

Not so, says the executive director of the BC Civil Liberties Association.

“It’s totally your right to send them that footage afterwards, to send an email to the officer attending, but you don’t have to turn over your phone to the police,” Josh Paterson said.

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He says that police can issue a warrant for a device, and are entitled to seize a witness’ cellphone for evidence on scene if they reasonably believe the footage would be deleted.

“We’re very concerned police may ask in a way that people don’t understand that they have a right to say no, and provide evidence in another way.”

Police also took an iPad from Debbie Gajdosik, though she consented to giving police her device.

“We wanted to do our civic duty,” she said.

But Gajdosik wanted to stay with her iPad so she could get it back that evening and that meant she ended up waiting three hours at VPD headquarters.

“After about one and a half hours, they told us we could leave, and I said, ‘I’m not leaving without my device.’ Getting it back proved to be a hassle,” she said.

Paterson says that if police officers want footage or photos from witnesses on scene, they should get their contact information, and ask them to email it later.

“This is your own personal belonging … it has personal details of your emails, your bank accounts, texts with your loved ones, all kinds of things that police have absolutely no right to have,” he said.

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“There’s no question that police should not be confiscating people’s cellphones.”

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