CAN YOU SAY: I am a Citizens' Rights Watchdog.
Natural Rights do not need a government's approval.
This website does not provide legal advice of any kind, and we cannot guarantee that the information is accurate, complete or up-to-date. Given the nature of and speed with which online communications are developed, the opinions and thoughts posted to this site are of a casual nature and may change after further reflection. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
Since legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing on this site should be used as a substitute for the advice of competent legal counsel. The authors assume no responsibility to any person who relies on information contained on this site and disclaim all liability in respect to such information. You should not act upon information in this website without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction.
An activist exercising our 1st, 2nd, 4th, and 5th Amendment rights by normalizing their use is ensuring our freedom as much as anyone in uniform. Police who fail to do this properly with criminals end up with evidence suppressed. Both are a failure to protect public safety.
CONSPIRACY AGAINST RIGHTS
Summary:
Section 241 of Title 18 is the civil rights conspiracy statute. Section 241 makes it unlawful for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same). Unlike most conspiracy statutes, Section 241 does not require that one of the conspirators commit an overt act prior to the conspiracy becoming a crime.
The offense is punishable by a range of imprisonment up to a life term or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.
TITLE 18, U.S.C., SECTION 241
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;... They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
DEPRIVATION OF RIGHTS UNDER COLOR OF LAW
Summary:
Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
POLICE HAVE RIGHTS. READ THOUGHTFULLY:
1. Officers have a right to, and powers of, free speech. Never interrupt them to tell them your rights or criticize their behavior. It is better not to suppress fools to keep them silent and make us wonder. We need them to speak up and remove all doubt.
2. Officers have a right to give lawful orders. We do not have a duty to inform them when they have exceeded their powers. Comply with orders while stating you do not consent.
3. Officers have a right to equal treatment. When they engage in behavior causing a threat to public safety, they should allowed to be sanctioned with the same laws we live under.
4. Officers have a right to record their official conduct while engaging the public in the course of their official duties. They are responsible for making a true and full record of all events and making those records available to the public when their investigation is complete.
5. Officers have a right to stop and frisk you when they have a reasonable and articulable suspicion. When no such suspicion exists it will suppress all credibility and evidence, except that needed in civil torts to follow.
6. Officers have the right to hold your seized property until their investigation is complete. They have a responsibility for compensating you for any loss of the use of that property. Private property taken for public use, as evidence, constitutes a taking under the Fifth Amendment.
RULE OF THUMB ONE-The minimum range in an altercation is 21 feet. You want to be able to move out of the way and 21 feet is the minimum distance with a 2 second rule.
RULE OF THUMB TWO-Never interview an officer at less than six feet - a lethal distance. If they move toward you, then move back and say they are intimidating you by entering your personal space. If they continue, then they are menacing and constructively obstructing your constitutional right to be secure in your person as well as engaging in coercion. Keep moving back as you video. It will be reasonable suspicion to a jury they are engaged in an illegal activity.
RULE OF THUMB THREE: Abusive language or gestures a reasonable person would understand as meant to provoke are in a grey area between the First Amendment and DISORDERLY CONDUCT you do not want to explore. However, police do not have unfettered discretion to arrest individuals for words or conduct that are simply annoying or offensive.
City of Houston v. Hill - 482 U.S. 451 (1987)
Speech is often provocative and challenging, but is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
IN OREGON
A person commits the crime of coercion when the person compels or induces another person to engage in conduct from which the other person has a legal right to abstain, or to abstain from engaging in conduct in which the other person has a legal right to engage, by means of instilling in the other person a fear.
Any citizen, OR OFFICER, who attempts to coerce a person not to engage in conduct they have legal right to commits a felony.
-§ 163.275 Coercion
Ten Rules for Recording Authority Figures
1. Learn to hold the camera. Keep it focused on the action or actors and not the pavement.
2. Keep your mouth shut: Do not use abusive language or gestures a reasonable person would understand as meant to provoke.
3. Don’t be afraid to ask questions: Stick to the who, what, when, where and how, which are the basic elements of journalism interviewing.
4. Learn the laws about public property: "Any governmental interest in protecting conversational privacy is not implicated when officers are performing duties in public places." Am. Civil Liberties Union of IL v. Alvarez. If you are blocking pedestrian traffic while you are standing on the sidewalk, you can be cited for disorderly conduct. The First Amendment right to record does NOT give you the right to interfere in the performance of officials' duties, or violate generally applicable laws. You may still face criminal prosecution or civil liability if, while recording, you: interfere with an arrest; trespass into secure government areas or private property; fail to respond to legitimate measures by law enforcement to control riots or disturbances; or otherwise interfere with official activity or violate private rights. Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations. Professional officers realize such operations are subject to public scrutiny, including by citizens photographing them.
5. Learn the laws about private property:People generally have an expectation of privacy when they are inside their homes.Business owners or private security guards have every right to forbid you from recording on their premises. They have no power to force you to delete your footage or confiscate your camera. If you refuse to leave, however, you can be charged with trespass on private property.
6. Learn the laws about government-operated facilities: Generally speaking, this is considered the same as public property. On Oct. 13, 2010, a federal judge signed a settlement in which the federal government agreed that no federal statutes or regulations bar photography of federal courthouses from publicly accessible property.
7. Learn your state’s wiretapping laws: It is legal to audio record police in public in all 50 states because they do not have an expectation of privacy. Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a "one-party consent" law. 19 States/Jurisdictions have "two party consent" requiring consent from all involved. SEE:
7. Learn your state’s wiretapping laws: It is legal to audio record police in public in all 50 states because they do not have an expectation of privacy. Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a "one-party consent" law. 19 States/Jurisdictions have "two party consent" requiring consent from all involved. SEE:
State Law: Recording
8. Learn how to handle police intimidation: When police stand over you with a badge, gun, handcuffs, taser gun and pepper spray, ordering you to hand over your identification and/or your camera it is an attempt to intimidate. In either case the police do not have the power to demand papers or confiscate property without probable cause that you have broken, are breaking, or will break a law. If they have an articulable reasonable suspicion and they have a statue requiring it, they may require that you give them your name and date of birth at most. Say you do not consent to identify yourself, answer questions, or a search. If they order you, then the fruits of their investigative stop will be suppressed, so they will attempt to get voluntary compliance.
Under the rubric of Terry v. Ohio, 392 U.S. 1 (1968), the minimal intrusion on a suspect's privacy, and the legitimate need of law enforcement officers to quickly dispel suspicion that an individual is engaged in criminal activity, justified requiring a suspect to disclose his or her name.
In Brown v. Texas, 443 U.S. 47 (1979), the Court struck down Texas’s stop-and-identify law as violating the Fourth Amendment because it allowed police officers to stop individuals without “specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. http://supreme.justia.com/cases/federal/us/443/47/case.html
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment if the statute first required reasonable and articulable suspicion of criminal involvement. Laws requiring suspects to identify themselves during investigative stops by law enforcement officers do not violate the Fourth Amendment, and do not necessarily violate the Fifth Amendment. http://www.law.cornell.edu/supct/html/03-5554.ZS.html
9. Remain ethical and transparent: Hold yourself accountable to the fundamental ethics of journalism as much at you would police or other officials. Give your opinion do not let this get in the way of presenting the facts and allowing your followers or readers to form their own opinions.
10. Learn to edit video: Delete the portions that are interesting but, in reality, do nothing to move the story forward in video editing. A rule of thumb is to keep it three to five minutes in duration.
Here are some links that can further help
you understand your rights as a citizen
journalist.
POST Christopher Sharp v. Baltimore City Police Department, et. al. rules from the DOJ
Bert P. Krages
Attorney at Law
6665 S.W. Hampton Street, Suite 200
Portland, Oregon 97223
Telephone: (503) 597-2525
Facsimile: (503) 597-2549
E-mail: krages@onemain.com
The Photographer’s Right
A Downloadable Flyer Explaining Your Rights When Stopped or Confronted for Photography © 2003 Bert P. Krages II
Updated November 2006
Legal Handbook for Photographers: The Rights and Liabilities of Making Images (Legal Handbook for Photographers: The Rights & Liabilities of)
Third edition edition (June 1, 2012)
Public Videotaping of Police and Other Officials: "Any governmental interest in protecting conversational privacy is not implicated when officers are performing duties in public places." Am. Civil Liberties Union of IL v. Alvarez
http://law.justia.com/cases/federal/appellate-courts/ca7/11-1286/11-1286-2012-05-08.html
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) was a case at the United States Court of Appeals for the First Circuit that held that a private citizen has the right to record video and audio of public officials in a public place, and that the arrest of the citizen for a wiretapping violation violated the citizen's First and Fourth Amendment rights.
http://scholar.google.com/scholar_case?case=10945354769903429853&q=Glik+v.+Cunniffe
STATE v. UNDERWOOD TC 80,1217; CA A20054; SC 28112. 648 P.2d 847 (1982)293 Or. 389
STATE of Oregon, Respondent On Review,v.Walter UNDERWOOD, Petitioner On Review.
We find that a reading of the interception statutes as a whole makes it clear that no interception occurs when one party records a communication. This reading is consistent with federal caselaw under a prior form of the federal law regarding interception of communications, former 47 U.S.C. § 605, which allowed recording with one party consent. See Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957).
We hold that when a police officer participates in a telephone communication with a person and records the communication, the evidence is not an "interception" under ORS 133.721(4) and is therefore not subject to suppression under ORS 133.735 when obtained without a court order.
http://www.leagle.com/decision/19821495648P2d847_11461.xml/STATE%20v.%20UNDERWOOD
Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.
— Judge Emory A. Plitt, Jr., Maryland v. Graber
http://www.aele.org/Md_Graber.pdf
Wherefore, the court grants the motion to dismiss finding the Illinois Eavesdropping Statute lacks a culpable mental state and suject wholly innocent conduct to prosecution. Under Illinois Supreme Court Rule 18, the court finds the Illinois Eavesdropping Statute is unconstitutional on its face and as applied to defendant as the statute is volative of substantive due process. The court finds that the statue violates substantive due process under the Fourteenth Amendment to the United States Constitution (U.S. Const. Amend. XIV) and Article I, Section 2 of the Illinois Constitution (Ill. Const. 1970, Art. I, Sec.2). The court further finds that the statute cannot be contructed in a manner that would preserve its validity and judgement cannot rest on an alternative ground. Notice under Illinois Supreme Court Rule 19 was given.
http://www.rcfp.org/sites/default/files/docs/20120322_135203_drew_decision.pdf
On Oct. 13, 2010, a federal judge signed a settlement in which the federal government agreed that no federal statutes or regulations bar photography of federal courthouses from publicly accessible property. It agreed to issue a nationwide directive to members of the Federal Protective Service (the agency responsible for all government buildings) instructing them about the rights of photographers. Since Musumeci had been charged with violating a regulation that applied to all federal property, not just courthouses, the NYCLU hold the position that the settlement in effect covers photography og all federal buildings.
http://www.nyclu.org/files/releases/Final_Stip_and_Order_10.18.10.pdf
http://www.nyclu.org/files/releases/FPS%20Photography%20Bulletin%208-2-2010%20(redacted).pdf
http://www.photoattorney.com/wp-content/uploads/2011/02/Photographing-the-Exterior-of-Federal-Buildings.pdf
http://www.rcfp.org/newsitems/docs/20111027_171350_aclu_complaint.pdf
http://documents.latimes.com/aclu-photographers-lawsuit/
ILLINOIS V. CHRISTOPHER DREW
Wherefore, the court grants the motion to dismiss finding the Illinois Eavesdropping Statute lacks a culpable mental state and suject wholly innocent conduct to prosecution. Under Illinois Supreme Court Rule 18, the court finds the Illinois Eavesdropping Statute is unconstitutional on its face and as applied to defendant as the statute is volative of substantive due process. The court finds that the statue violates substantive due process under the Fourteenth Amendment to the United States Constitution (U.S. Const. Amend. XIV) and Article I, Section 2 of the Illinois Constitution (Ill. Const. 1970, Art. I, Sec.2). The court further finds that the statute cannot be contructed in a manner that would preserve its validity and judgement cannot rest on an alternative ground. Notice under Illinois Supreme Court Rule 19 was given.
Wherefore, the court grants the motion to dismiss finding the Illinois Eavesdropping Statute lacks a culpable mental state and suject wholly innocent conduct to prosecution. Under Illinois Supreme Court Rule 18, the court finds the Illinois Eavesdropping Statute is unconstitutional on its face and as applied to defendant as the statute is volative of substantive due process. The court finds that the statue violates substantive due process under the Fourteenth Amendment to the United States Constitution (U.S. Const. Amend. XIV) and Article I, Section 2 of the Illinois Constitution (Ill. Const. 1970, Art. I, Sec.2). The court further finds that the statute cannot be contructed in a manner that would preserve its validity and judgement cannot rest on an alternative ground. Notice under Illinois Supreme Court Rule 19 was given.
http://www.rcfp.org/sites/default/files/docs/20120322_135203_drew_decision.pdf
41 CFR 102-74.420 - What is the policy concerning photographs for news, advertising or commercial purposes?
§ 102-74.420 What is the policy concerning photographs for news, advertising or commercial purposes?
Except where security regulations, rules, orders, or directives apply or a Federal court order or rule prohibits it, persons entering in or on Federal property may take photographs of—
(a) Space occupied by a tenant agency for non-commercial purposes only with the permission of the occupying agency concerned;
(b) Space occupied by a tenant agency for commercial purposes only with written permission of an authorized official of the occupying agency concerned; and
(c) Building entrances, lobbies, foyers, corridors, or auditoriums for news purposes.
http://www.law.cornell.edu/cfr/text/41/102-74.420
Privacy Protection act 1980
The Privacy Protection Act of 1980 ("PPA"), codified at 42 U.S.C. § 2000aa et seq., protects journalists from being required to turn over to law enforcement any work product and documentary materials, including sources, before it is disseminated to the public. Journalists who most need the protection of the PPA are those that are working on stories that are highly controversial or about criminal acts because the information gathered may also be useful for law enforcement. For instance, a criminal suspect may talk openly to a journalist who promises not to print her name, but will not go to law enforcement for fear of arrest. While law enforcement would like to obtain this type of information from a journalist, the PPA protects the journalist's freedom to publish such information under the First Amendment without government intrusion.
http://www.law.cornell.edu/uscode/text/42/2000aa
42 U.S. Code § 2000aa - Searches and seizures by government officers and employees in connection with investigation or prosecution of criminal offenses
(a) Work product materials
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if—
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, or section 2274, 2275, or 2277 of this title, or section 783 of title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of title 18); or
(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.
(b) Other documents
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials, other than work product materials, possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if—
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, or section 2274, 2275, or 2277 of this title, or section 783 of title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of title 18);
(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being;
(3) there is reason to believe that the giving of notice pursuant to a subpena duces tecum would result in the destruction, alteration, or concealment of such materials; or
(4) such materials have not been produced in response to a court order directing compliance with a subpena duces tecum, and—
(A) all appellate remedies have been exhausted; or
(B) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings relating to the subpena would threaten the interests of justice.
(c) Objections to court ordered subpoenas; affidavits
In the event a search warrant is sought pursuant to paragraph (4)(B) of subsection (b) of this section, the person possessing the materials shall be afforded adequate opportunity to submit an affidavit setting forth the basis for any contention that the materials sought are not subject to seizure.
A subpoena duces tecum (or subpoena for production of evidence) is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial.
http://www.rcfp.org/sites/default/files/docs/20120322_135203_drew_decision.pdf
41 CFR 102-74.420 - What is the policy concerning photographs for news, advertising or commercial purposes?
§ 102-74.420 What is the policy concerning photographs for news, advertising or commercial purposes?
Except where security regulations, rules, orders, or directives apply or a Federal court order or rule prohibits it, persons entering in or on Federal property may take photographs of—
(a) Space occupied by a tenant agency for non-commercial purposes only with the permission of the occupying agency concerned;
(b) Space occupied by a tenant agency for commercial purposes only with written permission of an authorized official of the occupying agency concerned; and
(c) Building entrances, lobbies, foyers, corridors, or auditoriums for news purposes.
http://www.law.cornell.edu/cfr/text/41/102-74.420
Privacy Protection act 1980
The Privacy Protection Act of 1980 ("PPA"), codified at 42 U.S.C. § 2000aa et seq., protects journalists from being required to turn over to law enforcement any work product and documentary materials, including sources, before it is disseminated to the public. Journalists who most need the protection of the PPA are those that are working on stories that are highly controversial or about criminal acts because the information gathered may also be useful for law enforcement. For instance, a criminal suspect may talk openly to a journalist who promises not to print her name, but will not go to law enforcement for fear of arrest. While law enforcement would like to obtain this type of information from a journalist, the PPA protects the journalist's freedom to publish such information under the First Amendment without government intrusion.
http://www.law.cornell.edu/uscode/text/42/2000aa
42 U.S. Code § 2000aa - Searches and seizures by government officers and employees in connection with investigation or prosecution of criminal offenses
(a) Work product materials
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if—
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, or section 2274, 2275, or 2277 of this title, or section 783 of title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of title 18); or
(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.
(b) Other documents
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials, other than work product materials, possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if—
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, or section 2274, 2275, or 2277 of this title, or section 783 of title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of title 18);
(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being;
(3) there is reason to believe that the giving of notice pursuant to a subpena duces tecum would result in the destruction, alteration, or concealment of such materials; or
(4) such materials have not been produced in response to a court order directing compliance with a subpena duces tecum, and—
(A) all appellate remedies have been exhausted; or
(B) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings relating to the subpena would threaten the interests of justice.
(c) Objections to court ordered subpoenas; affidavits
In the event a search warrant is sought pursuant to paragraph (4)(B) of subsection (b) of this section, the person possessing the materials shall be afforded adequate opportunity to submit an affidavit setting forth the basis for any contention that the materials sought are not subject to seizure.
A subpoena duces tecum (or subpoena for production of evidence) is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial.
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