MOSES LAKE — Former Fourth Congressional District candidate Gavin Seim, who was arrested in August for allegedly harassing and obstructing an officer, will be representing himself in future court proceedings.
Seim, 32, of Ephrata, was arrested Aug. 17 following an altercation with EPD Officer Patrick Canady at the Ephrata Walmart. Seim was in Grant County District Court last week for a hearing in the case, at which he notified the court of his intent to represent himself in all future court proceedings and during the trial, if the case gets to that point.
A major point of contention during last week’s hearing centered around Seim’s cell phone, which Canady seized as evidence during Seim’s arrest. Seim contends the device was taken without a warrant and he was legally allowed to film Canady as the officer was on a traffic stop in the Walmart parking lot.
“The Ephrata Police Department chooses at their own volition to not have body cameras or dash cameras recording on their vehicles, for whatever reason,” Seim told the court. “As a private citizen and a journalist I have the right to record and for my device to be taken from me, which is, as I understand, the exclusive evidence in this case of what happened and (for) me not to have the ability to access that evidence on my behalf is a violation of Constitutionally affirmed rights.”
Deputy Prosecutor Marc Fedorak said that due to the fact that there is an exception to warrant requirements once a person is under arrest, they can be searched “incident to that arrest.”
“No other warrant in this case is actually required when Officer Canady seized the phone. He placed Mr. Seim under arrest and then contemporaneously with that arrest he seized the phone from Mr. Seim’s person, from his hand. And so as far as the warrant being required to seize the phone, that exception applies so it was lawfully seized.”
Fedorak said that a couple of days after the arrest a warrant was obtained to actually conduct a search of the phone. He said attempts to search the phone have been unsuccessful because the device is password-protected. The phone has since been sent to a company that has ways to bypass security codes on cell phones. If the company is unable to crack the phone, the state will be looking into other options to access the device and view the video Seim took of his encounter with Canady.
“If we are unable to open the phone then that is something we are going to have to revisit again. The state has a serious concern; what has happened in the past is Officer Canady has been involved in traffic stops and has indicated Mr. Seim has video recorded the traffic stops. Edited video of those traffic stops has ended up online on YouTube videos, et cetera. If the phone is returned to Mr. Seim, Mr. Seim is free to either delete the video entirely or provide an edited copy to the state and use that at the trial.”
Fedorak told the court the process could be expedited if Seim agreed to punch his password into the phone and allow the prosecution to view the video, then Seim could receive the phone back. Seim stated he doesn’t feel like he should be put into a situation where he has to give up evidence without ever viewing it himself. He said when he does publish videos online, and when the validity of the video is in question, he will publish the entire unedited video.
Seim also rehashed his argument that his phone was taken unjustly and without probable cause.
“The seizure of the phone was not a subsequent act to the arrest; it was the reason for the arrest. I am not going to pretend the actions of Officer Canady were anything but malicious,” Seim stated.
Judge pro-tem Mark A. Chmelewski, who has a law firm based out of Ellensburg, denied Seim’s motion to have his phone returned.
“I am going to find that the phone was properly seized, that there is an exception to the warrant requirement, that it was seized incident to a lawful arrest, that it did possibly contain evidence of a possible crime,” Chmelewski ruled.
Chmelewski ordered the state to return the phone to Seim in 21 days. Chmelewski also denied an anti-harassment order request filed by Canady against Seim. A tentative trial date has been set for Nov. 13.
Richard Byrd can be reached via email at firstname.lastname@example.org.