Improperly obtained GoPro footage used for speeding conviction
Published: Tuesday, Oct 31st 2023, 12:21
Updated At: Wednesday, Nov 1st 2023, 00:55
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The Federal Supreme Court has allowed the partial use of video recordings seized from a speeding driver during an unlawful search of his home. However, only those recordings that serve to clarify serious criminal acts may be used.
Instead of the permitted 80 km/h, a man was speeding at 164 km/h in April 2015 - a net 159 km/h after safety deductions. The police arrested him and searched his house the same day. In the process, they found a GoPro camera and a memory card on which several motorcycle rides by the speeding man's son were stored.
He also drove far faster than permitted - once even after his learner's permit had been revoked. The Cantonal Court of Lucerne sentenced the son on the basis of the videos to four years and eight and a half months imprisonment, a fine of 20 daily rates of 70 francs and a fine of 560 francs.
Because the house search lacked sufficient suspicion and was therefore inadmissible, the videos may only be used to solve serious crimes, according to a ruling by the Federal Supreme Court published on Tuesday. The court therefore overturned the ruling and sent the case back to the lower court for a new assessment.
"Fishing expedition"
In its considerations, the Federal Supreme Court states that the father's speeding had already been sufficiently documented. He had been caught in flagrante delicto or had been flashed. There were no indications that the man had used recording devices.
A house search was neither suitable nor necessary for the clarification of the crime, which, however, is a condition for such a coercive measure. It was therefore an inadmissible search for evidence - a so-called fishing expedition.
However, this does not mean that the inadmissibly obtained evidence is absolutely unusable. The Code of Criminal Procedure provides that such evidence may be used to solve serious criminal offenses. In the present case, the Lucerne Cantonal Court therefore rightly convicted the son of multiple qualified gross violations of traffic rules under the speeding paragraph.
122 km/h instead of 60 km/h
Thus, in April 2015, the son drove at least 122 km/h at a signalized maximum speed of 60 km/m outside the city. He did this on a curvy section that was not directionally separated and ran along a rock face. In addition, there was a risk of falling rocks on this stretch of road.
The year before, the complainant exceeded the speed limit of 50 km/h by at least 57 km/h. The federal court also classified as a serious offense an overtaking maneuver in which the man was just able to turn back into his lane in time and driving without a license.
In the case of all other gross traffic violations, the Federal Court did not assume that they were serious criminal offenses. Even if these numerous speeding violations were partly quite high, they fell under the prohibition of exploitation. (Judgment 6B_821/2021 of 6.9.2023)
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