From the Volokh Conspiracy via Instapundit. In fact most of the post contains an excerpt from a newspaper article...
A person cannot be charged with obstruction or resisting arrest if the police detention is unlawful, an assistant state attorney, Tony Casoria, said in a memo released this week. Sievert did not physically interfere with the search warrant, the prosecutor said.Oh and if you're considering engaging in this conduct I would suggest using discretion and understand that while the law is on your side being careful is certainly your best bet. Caution should be rule not to say that you should hide but certainly be very careful when you engage in this activity. Things should be even better now that we have cell phone cameras, digital cameras, and digital camcorders.
Casoria said Sievert "took a photograph in a public place, across the street from the home where law enforcement were conducting their search."
Sievert's attorney, Charles Britt III, has challenged the merits of the prosecution, calling the arrest unlawful. Journalists routinely snap photos at crime scenes, the attorney said.
"The police would hardly arrest a member of the media or anyone else standing and watching for doing the same thing," Britt said in court papers.
That deputies did not like what Sievert was doing, Britt said, did not make it a crime. Britt said authorities targeted Sievert because of his past drug crimes. Sievert's arrest, he said, stemmed from "contempt of cop."
Britt said "common sense" would dictate that, if authorities do not want undercover vehicles identified by the public, the cars and trucks should not be driven to locations that are being hit with a search warrant.
In declining to prosecute Sievert, the state pointed to a decision in a federal lawsuit in which a judge awarded a man damages for his arrest for videotaping police.
In 2003, a state judge in Pennsylvania overturned the harassment conviction of Allen E. Robinson, who had taped police during a traffic stop. Robinson said he was concerned about unsafe truck inspections and set up a video camera.
Robinson, a truck driver, sued the police, saying he was subjected to false arrest, excessive force and malicious prosecution. Robinson won in federal court in 2005.
"The activities of the police, like those of other public officials, are subject to public scrutiny," a federal judge wrote. "Robinson's right to free speech encompasses the right to receive information and ideas."
The police, the judge wrote, citing a case in Texas, do not have "unfettered discretion to arrest individuals for words or conduct that annoy or offend them."