Team No. 803
Docket No. 2012-01
IN THE
SUPREME COURT OF THE UNITED STATES
BRYAN LOCKTE, Petitioner,
v.
MICHAEL FRANKLIN, Respondent.
On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit
BRIEF FOR PETITIONER
Team No. 803 Counsel for Petitioner
ORAL ARGUMENT REQUESTED
i
QUESTIONS PRESENTED FOR REVIEW
1) Does the First Amendment protect the recording of undercover police officers during the course of their undercover assignments where the act of recording the police activity has the potential to hinder and obstruct legitimate law enforcement objectives? If so, was that right “clearly established” at the time of Franklin’s arrest?
2) Does the Fourth Amendment prohibit the search of Franklin’s cell phone discovered on his person, where the search was contemporaneous to his arrest and the cell phone contained evidence of the crime of arrest? If so, was that right “clearly established” at the time of Franklin’s arrest?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ..................................................... i TABLE OF AUTHORITIES .............................................................................. iv OPINIONS AND ORDERS BELOW ................................................................. x RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ........... xi STATEMENT OF THE CASE ........................................................................... 1
I. Statement of the Facts ........................................................................ 1 II. Course of Proceedings and Disposition in the Courts Below ............ 3
SUMMARY OF THE ARGUMENT ................................................................... 5 ARGUMENT ....................................................................................................... 9
I. Officer Lockte is entitled to receive qualified immunity because he did not violate Franklin’s First Amendment rights; or alternatively, these rights were not clearly established at the time of his arrest........................................................................................ 9
A. There is no First Amendment right to record
law enforcement officers during the course of their official duties. ............................................................................... 10
1. There is no generally recognized right to interfere with and hinder police activity by recording law enforcement officials. .................................................................... 11
2. Even if this Court finds a protected right to record police conduct, that right does not apply to undercover law enforcement officers because of the unique and vital role these officers play in law enforcement. .................................................................................. 15
B. Even if this Court finds a valid First Amendment right to record an undercover police officer during the course of his or her undercover assignments, that right is not “clearly established.”......................................... 17
iii
II. Officer Lockte should receive qualified immunity because he did not violate Franklin’s Fourth Amendment rights; or alternatively, they were not clearly established at the time of his arrest...................... 23
A. Officer Lockte did not violate Franklin’s Fourth
Amendment rights when he searched Franklin’s cell phone at the time of his arrest. ............................................. 24
1. Officer Lockte conducted a valid search incident to arrest when he placed Franklin under lawful arrest and then searched the cell phone immediately associated with his person. ......................................................... 25 a. A consistent theme developed throughout this
Court’s Fourth Amendment jurisprudence is the character of the searched item does not affect the validity of the search. ............................................................. 27
b. The type and quantity of information stored by cell phones does not justify creating a separate rule for searches incident to arrest. ....................................... 30
2. Officer Lockte’s search of the cell phone was also valid if this Court expands its holding in Gant outside the vehicle context. ........................................................... 32
3. If this Court excludes cell phones from searches incident to arrest, exigent circumstances justified Officer Lockte’s search. ................................................................. 36
B. Assuming, arguendo, this Court determines the search of Franklin’s cell phone violated his Fourth Amendment rights, Officer Lockte is still entitled to qualified immunity because the right was not “clearly established” at the time of the search. .................................................................................... 38
CONCLUSION .................................................................................................. 40
iv
TABLE OF AUTHORITIES
United States Supreme Court Cases Anderson v. Creighton,
483 U.S. 635 (1987) ..................................................................... 17, 18, 38
Arizona v. Gant, 556 U.S. 332 (2009) ......................................................................... passim
Arkansas v. Sanders,
442 U.S. 753 (1979) ................................................................................. 33 Brigham City, Utah v. Stuart,
547 U.S. 398 (2006) ................................................................................. 36 Chimel v. California,
395 U.S. 752 (1969) ........................................................................... 25, 35 Colten v. Kentucky,
407 U.S. 104 (1972).......................................................................... passim Davis v. Scherer,
468 U.S. 183 (1984) ................................................................................. 21 Elder v. Holloway, 510 U.S. 510 (1994) ................................................................................. 9 Harlow v. Fitzgerald,
457 U.S. 800 (1982) .................................................................................. 9 Hunter v. Bryant,
502 U.S. 224 (1991)..........................................................................passim Lewis v. United States,
385 U.S. 206 (1966).................................................................................. 16 Malley v. Briggs,
475 U.S. 335 (1986).................................................................................. 21 Michigan v. Tyler, 436 U.S. 499 (1978) ................................................................................ 36
v
Minnesota v. Olson, 495 U.S. 91 (1990) ................................................................................... 36
New York v. Belton,
453 U.S. 454 (1981) ........................................................................... 31, 33 Pearson v. Callahan,
555 U.S. 223 (2009)……………......................................................9, 17, 24 Preston v. United States,
376 U.S. 364 (1964) ................................................................................. 32 Saucier v. Katz,
533 U.S. 194 (2001) ......................................................................... passim Schmerber v. California,
384 U.S. 757 (1966) ................................................................................. 36 Thornton v. United States,
541 U.S. 615 (2004) ........................................................................... 31, 34 United States v. Chadwick,
433 U.S. 1 (1977) ............................................................................... 28, 29 United States v. Edwards,
415 U.S. 800 (1974) ........................................................................... 28, 32 United States v. Jimenez Recio,
537 U.S. 270 (2003).................................................................................. 16 United States v. Lanier,
520 U.S. 259 (1997) ................................................................................. 18
United States v. Robinson, 414 U.S. 218 (1973) ......................................................................... passim
United States v. Santana,
427 U.S. 38 (1976) ................................................................................... 36 Ward v. Rock Against Racism,
491 U.S. 781 (1989) ........................................................................... 11, 13 Warden v. Hayden,
387 U.S. 294 (1967) ................................................................................. 36
vi
Wilson v. Layne,
526 U.S. 603 (1999) ......................................................................... passim United States Circuit Court Cases ACLU v. Alvarez,
679 F.3d 583 (7th Cir. 2012)................................................................... 14 Baptiste v. J.C. Penney Co.,
147 F.3d 1252 (10th Cir. 1998)............................................................... 19 Blake v. Wright,
179 F.3d 1003 (6th Cir. 1999) ............................................................18-19 Brady v. Fort Bend County,
58 F.3d 173 (5th Cir. 1995)..................................................................... 18 Carswell v. Borough of Homestead,
381 F.3d 235 (3d Cir. 2004) ..................................................................... 9 Donovan v. City of Milwaukee,
17 F.3d 944 (7th Cir. 1994)..................................................................... 18 El Dia, Inc. v. Rossello,
165 F.3d 106 (1st Cir. 1999).................................................................... 18 Fordyce v. City of Seattle,
55 F.3d 436 (9th Cir. 1995) ............................................................... 15, 19 Glik v. Cunniffe,
655 F.3d 78 (1st Cir. 2011) ............................................................... 16, 20 Gilles v. Davis,
427 F.3d 197 (3d Cir. 2005) .................................................................... 11 Jenkins by Hall v. Talladega City Bd. of Educ.,
115 F.3d 821 (11th Cir. 1997)................................................................. 18 Kelly v. Borough of Carlisle,
622 F.3d 248 (3d Cir. 2010)........................................................ 11, 13, 19 Norfleet v. Ark. Dep’t of Human Servs.,
989 F.2d 289 (8th Cir. 1993) ................................................................... 18
vii
Osolinski v. Kane,
92 F.3d 934 (9th Cir. 1996) ..................................................................... 18 Silvan W. v. Briggs,
309 F. App’x 216 (10th Cir. 2009) (unpublished) .................................. 27 Smith v. City of Cumming,
212 F.3d 1332 (11th Cir. 2000) ......................................................... 15, 19 Swanson v. Powers,
937 F.2d 965 (4th Cir. 1991)................................................................... 17 United States v. Finley,
477 F.3d 250 (5th Cir. 2007)................................................................... 26 United States v. Flores-Lopez,
670 F.3d 803 (7th Cir. 2012) ............................................................. 26, 30 United States v. Murphy,
552 F.3d 405 (4th Cir. 2009) ...................................................................27 United States v. Richardson,
764 F.2d 1514 (11th Cir. 1985) ............................................................... 30 Varrone v. Bilotti,
123 F.3d 75 (2d Cir. 1997)....................................................................... 18 Wilson v. Layne,
141 F.3d 111 (4th Cir. 1998)................................................................... 18
United States District Court Cases Matheny v. Cnty. of Allegheny Pa.,
No. 09-1070, 2010 WL 1007859 (W.D. Pa. Mar. 16, 2010) .................... 11 United States v. Brookes,
CRIM 2004-0154, 2005 WL 1940124 (D.V.I. 2005) ............................... 34 United States v. Espinoza,
06-40130-01-JAR, 2007 WL 1018893 (D. Kan. Apr. 3, 2007) ................ 39 United States v. Gomez,
807 F. Supp. 2d 1134 (S.D. Fla. 2011) ................................................... 27
viii
United States v. McCray,
CR408-231, 2009 WL 28607 (S.D. Ga. Jan. 5, 2009) ............................. 39 United States v. McGhee,
8:09CR31, 2009 WL 2424104 (D. Neb. July 21, 2009) .......................... 39 United States v. Park, CR 05-371SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007) .................. 31 United States v. Valdez,
No. 06-CR-336, 2008 WL 360548 (E.D. Wis. 2008) ............................... 34 United States v. Wall,
08-60016-CR, 2008 WL 5381412 (S.D. Fla. Dec. 22, 2008), aff’d, 343 F. App’x 564 (11th Cir. 2009) ................................................. 39
United States v. Wurie,
612 F. Supp. 2d 104 (D. Mass. 2009) ............................................... 27, 34 State Court Cases Fawdry v. State,
70 So. 3d 626 (Fla. Dist. Ct. App. 2011) ................................................. 27 Gracie v. State,
92 So. 3d 806 (Ala. Crim. App. 2011), reh’g denied (Jan. 27, 2012), cert. denied (Apr. 6, 2012) ............................................ 27
Hawkins v. State,
723 S.E.2d 924 (Ga. 2012) ...................................................................... 27 State v. Ates,
46 A.3d 550 (N.J. Super. Ct. App. Div. 2012) ........................................ 22 State v. Lambardo,
738 N.E.2d 653 (Ind. 2000)..................................................................... 22 State v. Nix,
237 P.3d 842 (Or. Ct. App. 2010) ........................................................... 39 State v. Roach,
452 N.W.2d 262 (Neb. 1990) ................................................................... 33
ix
State v. Smith, 920 N.E.2d 949 (Ohio 2009) ............................................................. 31, 39
Secondary Sources Carol M. Bast,
What’s Bugging You? Inconsistencies and Irrationalities of the Law of Eavesdropping, 47 DePaul L. Rev. 837 (1998).................... 21
Jamie Lendino,
How to Remotely Disable Your Lost or Stolen Phone, PCMAG.COM, http://www.pcmag.com/article2/0%2C2817%2C2402937%2C00.asp .... 38
Gary T. Marx,
Undercover Police Surveillance in America 14 (1988)........................... 16 Eunice Park,
Traffic Ticket Reasonable, Cell Phone Search Not: Applying the Search-Incident-to-Arrest Exception to the Cell Phone As "Hybrid", 60 Drake L. Rev. 429 (2012) ............................................. 38
x
OPINIONS AND ORDERS BELOW
The decision of the United States District Court for the District of New
London, Franklin v. Lockte, Docket No. 11-114420 (D. New London, Mar. 15,
2012), granting Officer Lockte’s summary judgment on both counts appears
in the record as R. 7. The order of the United States Court of Appeals for the
Fourteenth Circuit, Franklin v. Lockte, Docket No. 12-114420 (14th Cir.
2012), reversing the order of the district court is found in the record as R. 14.
xi
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
Congress shall make no law . . . abridging the freedom of speech, or of the press. . .
U.S. Const. amend I
The right of the people to be secure in their persons . . . and effects, against unreasonable searches and seizures, shall not be violated . . .
U.S. Const. amend. IV
A person commits wiretapping when he knowingly and intentionally intercepts another person’s electronic or oral communications, unless he does so with the consent of all parties to such communication. To “intercept” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any electronic or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.
City of New London Wiretapping Statute. R. 2-3.
1
STATEMENT OF THE CASE
I. Statement of the Facts
This matter arises out of a protest by hundreds of people in the city of New
London’s Hide Park beginning September 1, 2011. R. 2. The two years leading up
to the protest were tumultuous in New London. Id. The city faced an economic
downturn that led to the highest unemployment in 50 years and an increasing
socioeconomic divide in the city. Id. To voice their displeasure with these events,
hundreds of protesters joined together to “occupy” Hide Park. Id. Similar protests
were also occurring in other cities and were becoming increasingly violent. R. 5.
The New London Police Department (“NLPD”) decided to place Officer
Matthew Phelps undercover amongst the protesters. R. 4. This allowed Officer
Phelps to provide information on the protesters’ plans to the Department so it could
react accordingly if they decided to expand the protest outside Hide Park. R. 2, 4.
Officer Phelps, while undercover, successfully infiltrated the protesters’ leadership.
R. 4. At one point, he was able to convince the other leaders to remain in Hide
Park, rather than dispersing throughout the city. Id.
Petitioner, Officer Bryan Lockte, was responsible for the safety of Officer
Phelps because he was a former Marine and had extensive law enforcement
experience. Id. Several weeks into the occupation, Respondent Michael Franklin, a
protester, became suspicious that Phelps was an undercover police officer. R. 2. He
began to videotape Officer Phelps. Id. Officer Lockte saw Franklin videotaping
Officer Phelps on September 28, 2011. R. 4. Although not unusual for Officer
2
Phelps to be videotaped, this instance was different because Franklin was recording
him while he was talking to a uniformed officer. R. 5.
Because of this, Officer Lockte immediately became concerned that Officer
Phelps’ cover was blown. Id. Throughout the protests, a website called
“99percent.com” had become very popular among the protesters as a primary way to
share information, including videos. R. 4. If Franklin’s video were posted to the
site insinuating that Officer Phelps was an undercover officer, Officer Lockte
believed this could jeopardize Phelps’ safety. R. 5. In addition, Officer Lockte
became concerned the peaceful relationship between the protesters and the police
could change, heightening the risk of violence in New London, similar to protests in
other cities. Id.
Officer Lockte decided to approach Franklin and determine whether he had
consent from Officer Phelps and the other officer to videotape their conversation.
Id. If Franklin did not have consent from both of them, he would be violating New
London’s wiretapping statute. R. 2-3. The statute provides:
A person commits wiretapping when he knowingly and intentionally intercepts another person’s electronic or oral communications, unless he does so with the consent of all parties to such communication. To “intercept” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any electronic or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.
Id.
3
Officer Lockte asked Franklin whether he had consent, to which Franklin
responded, “What do you think? He is in a public place and people have been
videotaping him for weeks. Why would I need permission?” R. 5. Since Franklin
did not appear to have consent, Officer Lockte asked him to cease recording but did
not intend to arrest him. Id. However, Franklin then said, “Wait, a minute, he is
one of you.” Id. Officer Lockte quickly grabbed Franklin’s phone to prevent him
from posting the video to the “99percent.com” website, knowing it only takes a few
seconds to post content online with today’s technology. Id. When asked whether he
had posted the video, Franklin replied, “Maybe I did, maybe I didn’t. What’s it to
you?” Id.
If the video had been uploaded, the NLPD would have little time to protect
Officer Phelps and maintain order among the protestors. Id. Officer Lockte
determined the quickest way to determine whether Franklin had uploaded the
video was to access the video content of his cell phone. R. 5. Upon searching the
still-open video application on Franklin’s phone, Officer Lockte found a posting of
the video in draft form that had not yet been added to “99percent.com” message
boards. R. 6. The draft posting had an appended message asking the question,
“Why is Phelps so chummy with the NLPD?” Id.
II. Course of Proceedings and Disposition in the Courts Below
Although Franklin was arrested for violating New London’s wiretapping
statute, the City of New London’s District Attorney decided not to prosecute
Franklin for the violation. R. 3. Even so, Franklin sued Officer Lockte in the
4
United States District Court of New London on November 3, 2011 claiming that 1)
his First Amendment rights were violated when Officer Lockte arrested him for
videotaping a police officer during the course of his duties, and 2) his Fourth
Amendment rights were violated when Officer Lockte searched the contents of his
cell phone. Id.
Subsequently, Officer Lockte moved for summary judgment on Franklin’s
First and Fourth Amendment claims on the ground of qualified immunity. R. 8.
District Judge Shpigel granted Officer Lockte’s motion for summary judgment on
March 15, 2012. R. 7.
On appeal, the Fourteenth Circuit Court of Appeals reversed the District
Court’s decision to cloak Officer Lockte with qualified immunity and remanded the
case for further proceedings consistent with its opinion. R. 22. This Court granted
Officer Lockte’s petition for writ of certiorari. R. 23.
5
SUMMARY OF THE ARGUMENT
Officer Lockte is entitled to qualified immunity on Franklin’s First
Amendment claim. First, this Court has explicitly held there is no First
Amendment right to observe or record police officers where that observation or
recording interferes with or hinders the law enforcement objectives. Second, even if
this Court recognizes First Amendment protection for such conduct, that right was
far from “clearly established.” Accordingly, Officer Lockte had no reason to believe
that his conduct was prohibited.
First Amendment rights, while important, are not absolute. In the context of
observing and recording police officers, this Court has held that there is no
constitutional right to engage in such activity where it has the potential to threaten
legitimate law enforcement objectives. There are few other situations in which
police efforts are more threatened than when the true identity of an undercover
officer or informant is revealed. Here, Officer Phelps was acting in an undercover
capacity, serving a vital role to the NLPD when Franklin sought to disclose Officer
Phelps’ affiliation with the police. By taking and distributing the video (in violation
of a valid and unchallenged statute), Franklin interfered with, hampered and
obstructed the efforts of the NLPD. He placed the safety of Officer Phelps, other
police officers, protesters and the general public in jeopardy, as the distribution of
his video would have had violent consequences. Accordingly, the First Amendment
protections did not extend far enough to cover Franklin’s conduct.
6
Even if this Court finds that Franklin’s conduct falls within the protections of
the First Amendment, Officer Lockte is still entitled to qualified immunity because
these rights were not “clearly established” at the time of Franklin’s arrest. There
has never been a Supreme Court case, a Fourteenth Circuit case, or any consensus
of persuasive authority that establishes a First Amendment right to record police in
the course of their official duties. There is a circuit split as to whether there is even
a general right to record police officers during the course of their public duties, and
these cases do not even begin to address the right in the context of undercover
officers.
The divergence in case law of the circuits, combined with prior rulings of this
Court, lend strong support to the conclusion that if any First Amendment right is
recognized in this case, that right was not conclusively defined so as to apprise
Officer Lockte that his conduct was impermissible. Moreover, there is nothing to
suggest that the validity of the New London wiretapping statute had ever been
challenged. Accordingly, Officer Lockte had no reason to doubt the constitutionality
of his actions. Rather, he acted reasonably in arresting Franklin for violating the
New London wiretapping statute. For these reasons, Officer Lockte should be
granted qualified immunity on Franklin’s First Amendment claim.
Officer Lockte should also receive qualified immunity from Franklin’s Fourth
Amendment claim. First, Officer Lockte’s warrantless search of Franklin’s cell
phone did not violate his Fourth Amendment rights because it was a valid search
incident to arrest. In addition, exigent circumstances justified the search.
7
However, should this Court find Officer Lockte’s search violated Franklin’s rights,
this right was not clearly established at the time of the search.
Searches incident to arrest are a well-settled exception to the Fourth
Amendment’s warrant requirement. A lawful arrest provides the only justification
required for an officer to search the arrestee’s person and the area within the
arrestee’s immediate control. Courts consider effects found on an arrestee’s person
as immediately associated with the arrestee’s person and searches incident to arrest
provide the authority for police officers to open and inspect these effects.
Furthermore, throughout this Court’s Fourth Amendment jurisprudence a
theme has consistently developed that the character of the seized item does not
affect the validity of a search incident to arrest. The majority of federal and state
courts have followed this guidance and have held that cell phones do not require a
separate rule from other effects properly seized from an arrestee’s person. In doing
so, these courts have recognized the type and quantity of information stored by cell
phones, but found that it does not justify creating a separate rule.
Officer Lockte conducted a valid search after he lawfully arrested Franklin
for violating New London’s wiretapping statute. First, he seized the cell phone
immediately associated with Franklin’s person. Then, he conducted a limited
search to determine whether Franklin had uploaded the recording of undercover
officer Phelps, which could threaten the safety of Officer Phelps and other police
officers. These facts demonstrate Officer Lockte conducted a valid search incident
to arrest.
8
Alternatively, cell phones could receive additional protection by requiring
warrantless searches of cell phones to be justified by a reasonable belief the cell
phone contains evidence relevant to the crime of arrest. Here, Officer Lockte
viewed Franklin recording Officer Phelps with his cell phone, in violation of the
wiretapping statute. This supported his reasonable belief the cell phone contained
evidence relevant to the crime of arrest and justified his limited search of the phone.
Regardless, Officer Lockte’s search was still valid because exigent circumstances
existed. If the recording was uploaded, it could threaten Officer Phelps’ and other
officers’ safety. Officer Lockte responded by conducting a limited search of the cell
phone to ensure Franklin had not threatened the safety of the New London police
force.
However, should this Court find a Fourth Amendment violation, Officer
Lockte is still entitled to qualified immunity because this right was not clearly
established at the time of the search. First, neither this Court nor the Fourteenth
Circuit has ever held cell phones are excluded from all warrantless searches.
Second, although a minority of courts have held the Fourth Amendment provides
more protection for cell phones, the majority of courts have disagreed. Therefore,
Officer Lockte is entitled to qualified immunity because the unclear state of the law
demonstrates any right is not clearly established.
9
ARGUMENT I. Officer Lockte is entitled to receive qualified immunity because he
did not violate Franklin’s First Amendment rights; or alternatively, these rights were not clearly established at the time of his arrest.
Officer Lockte is entitled to qualified immunity on Franklin’s First
Amendment claim because there is no violation of a clearly established
constitutional right. Qualified immunity is a long-standing principle of
constitutional litigation that shields public officials from personal liability for
actions performed in the exercise of their discretionary functions. See Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982). Government officials are entitled to qualified
immunity unless (1) the facts that a plaintiff has alleged or shown make out a
violation of a constitutional right; and (2) the right at issue was clearly established
at the time of the defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S.
223, 232 (2009); Saucier v. Katz, 533 U.S. 194, 201 (2001). The determination of
whether a public official has qualified immunity from suit presents a question of
law that must be resolved de novo on appeal. Elder v. Holloway, 510 U.S. 510, 516
(1994).
The qualified immunity analysis requires exploration of the closely related
issue of “whether the officer made a reasonable mistake as to what the law
requires.” Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004). The
Court explained, “[t]he concern of the immunity inquiry is to acknowledge that
reasonable mistakes can be made as to the legal constraints on particular police
10
conduct . . . [i]f the officer’s mistake as to what the law requires is reasonable,
however, the officer is entitled to the immunity defense.” Saucier, 533 U.S. at 205.
Officer Lockte is entitled to qualified immunity because Franklin cannot
satisfy either of the required showings. First, Officer Lockte did not violate
Franklin’s First Amendment rights. First Amendment protections are not absolute
and do not extend so far as to protect the recording of an undercover police officer
during the course of carrying out his official duties. Second, even if this Court
stretched the First Amendment to offer this type of protection, that right was far
from “clearly established” at the time of Franklin’s arrest. Moreover, Officer Lockte
acted reasonably in arresting Franklin, as Officer Lockte was enforcing a valid New
London law. Franklin bears burden of proof and failure to satisfy all elements
requires the court to grant Officer Lockte the protections of qualified immunity. In
this case, none of the elements are adequately presented. Accordingly, Officer
Lockte is entitled to qualified immunity on Franklin’s First Amendment claim.
A. There is no First Amendment right to record law enforcement officers during the course of their official duties.
The First Amendment rights to free speech and free press are not absolute
and do not encapsulate the right to record police officers carrying out their official
assignments. In fact, in a case surprisingly omitted from the lower courts’ analyses,
this Court held that there is no right to observe police engaged in the performance
of their duties. Colten v. Kentucky, 407 U.S. 104, 109 (1972). The State has a
legitimate interest in ensuring its police force is able to carry out its duties “free
from possible interference or interruption from bystanders, even those claiming a
11
third-party interest” in the police conduct. Id. “But videotaping or photographing
the police in the performance of their duties on public property may be a protected
activity . . . More generally, photography or videography that has a communicative
or expressive purpose enjoys some First Amendment protection.” Gilles v. Davis,
427 F.3d 197, 212 n.14 (3d Cir. 2005) (emphasis added); see also Matheny v. Cnty. of
Allegheny Pa., No. 09-1070, 2010 WL 1007859, at *4 (W.D. Pa. Mar. 16, 2010)
(adding even stronger emphasis to the same language). Any “right to record
matters of public concern is not absolute; it is subject to reasonable time, place, and
manner restrictions, as long as they are ‘justified without reference to the content of
the regulated speech.’” Kelly v. Borough of Carlisle, 622 F. 3d 248, 262 (3d Cir.
2010) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Further, no
case has addressed the First Amendment protections in the context of recording
undercover officers. Therefore, Franklin did not have a First Amendment right to
observe and record police activity when it interferes with the legitimate objectives of
the police officers. Even if this Court finds such a right to exist, due to the unique
role undercover police officers hold, that right does not extend to situations where
undercover police officers are recorded during the course of his or her undercover
assignments.
1. There is no generally recognized right to interfere with and hinder police activity by recording law enforcement officials.
The previously cited cases lay the foundation for finding Officer Lockte did
not violate Franklin’s First Amendment rights because there is no constitutional
right to record police activity. To the contrary, in Colten, this Court explicitly held
12
that there is no right to observe police in the conduct of their official duties where
such observation hinders, interrupts or otherwise interferes with the officer’s duty.
Colten, 407 U.S. 104 (emphasis added). There, the defendant and numerous other
citizens attended a political rally at an airport. Id. at 106. As the rally ended, the
defendant proceeded to his car and left the airport with his friends, who were all
travelling in six to ten cars. Id. The first car in the caravan was stopped for having
expired plates. Id. The defendant and others pulled their cars to the side of the
road, and while the officer was issuing a citation, the defendant attempted to
engage the officer. Id. Police officers repeatedly told the defendant to move along
and clear the road. Id. As a result of his noncompliance, the defendant was
arrested for disorderly conduct. Id. at 107. He subsequently brought suit, alleging
violation of his First Amendment rights. Id. at 108. In finding the defendant’s
arrest for disorderly conduct constitutional, this Court noted:
“Nor can we believe that Colten, although he was not trespassing or disobeying any traffic regulation himself, could not be required to move on. He had no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation at that time. The State has a legitimate interest in enforcing its traffic laws and its officers were entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction. Here the police had cause for apprehension that a roadside strip, crowded with persons and automobiles, might expose the entourage, passing motorists, and police to the risk of accident.”
Id. at 109 (emphasis added).
Here, unlike Colten, Franklin was violating applicable law at the time of his
arrest. The NLPD had a substantial interest in enforcing the state’s law and
13
ensuring the safety of the protesters and general public. Franklin’s actions were
aimed at thwarting the Department’s efforts in effectuating that interest.
Accordingly, because Franklin’s actions posed a potential safety concern and
legitimate police objectives were threatened, there is no constitutional protection for
Franklin’s conduct.
Case law in the circuits favors Officer Lockte’s position as well. In Kelly, the
Third Circuit noted that the First Amendment rights are not absolute. They are
“subject to reasonable time, place, and manner restrictions, as long as they are
justified without reference to the content of the regulated speech, . . . are narrowly
tailored to serve a significant governmental interest, and . . . leave open ample
alternative channels for communication of the information.” Kelly, 622 F.3d at 262
(citing Ward, 491 U.S. at 791). Upon application of these standards, it is clear that
Officer Lockte’s conduct was constitutionally permissible.
First, Officer Lockte was not categorically restricting the observation of police
officers. Moreover, he was not restricting all communication regarding the police
officers. He was merely restricting the manner in which information was obtained
about the officers. Second, Officer Lockte’s restriction was necessary to serve a
significant government interest. This Court recognized the uninhibited practice of
official law enforcement duties to be a legitimate interest. See Colten, 407 U.S. at
109. Here, in addition to the interest recognized in Colten, the state has an interest
in keeping the identity of undercover officers and informants intact and ensuring
the protection of police officers, protestors and the general public. At best, Officer
14
Phelps’ blown cover hinders the legitimate law enforcement duties of the New
London Police Department. At worst, revealing Officer Phelps’ true identity as a
police officer threatens his safety, the safety of other officers, and the general public.
Third, Officer Lockte’s actions were narrowly tailored to serve those interests.
There was no general prohibition against all taking and posting of protest videos,
rather, Officer Lockte simply sought to prevent dissemination of an unauthorized
video that could potentially place an undercover officer in peril. Officer Lockte
sought to prohibit a video that could also lead to increased violence. Finally, ample
alternative channels of expression were left open in the wake of Officer Lockte’s
conduct. For example, protesters were still free to post blog entries about their
theories or engage in public discussion.
Most recently, the Seventh Circuit embarked on a similar analysis during a
constitutional challenge to a similar wiretapping statute. ACLU v. Alvarez, 679
F.3d 583 (7th Cir. 2012). In Alvarez, the court found the statute to be
unconstitutional when applied to specific facts of that case. Id. at 608. However,
this case does not present a constitutional challenge to the New London wiretapping
statute, as was the thrust of the ACLU’s claim in Alvarez. Therefore, the portions
of the Seventh Circuit’s opinion relating to the constitutional challenge are
inapplicable to the present case. However, the Seventh Circuit qualified its holding
by noting that, “Nothing we have said here immunizes behavior that obstructs or
interferes with effective law enforcement or the protection of public safety.” Id. at
607. Here, Franklin’s conduct had the immediate potential to obstruct and interfere
15
with law enforcement. Therefore, the First Amendment does not protect his
conduct.
2. Even if this Court finds a protected right to record police conduct, that right does not apply to undercover law enforcement officers because of the unique and vital role these officers play in law enforcement.
The instant case arises during the course of a political assembly, much like
Colten. Here, as in Colten, the State has a legitimate interest in enforcing laws
without interference. Undercover officers serve important law enforcement
functions. The State had a legitimate (even substantial or significant) interest in
keeping Phelps’ cover intact. This was necessary to maintain order and protect the
citizens, including protestors. Moreover, disclosure of Officer Phelps’ affiliation
with law enforcement would have also threatened the safety of Officer Phelps and
the rest of the NLPD. Therefore, when compared with the interest in Colten, the
interest in the present case is even more legitimate, and could easily be classified as
substantial or significant.
Other circuits have held that there is a general right to record conduct that is
of public interest. Some circuits go so far as to hold that there is a right to record
officers while they are carrying out their law enforcement duties so long as the
recording does not interfere with the officer’s duty. See Smith v. City of Cumming,
212 F.3d 1332 (11th Cir. 2000) (holding that the plaintiff has a First Amendment
right to record matters of public interest subject to reasonable time, place and
manner restrictions, however, the two-page decision provides no analysis or
reasoning); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) (finding a general
16
right to film matters of public interest); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)
(finding a constitutionally protected right to videotape police carrying out their
duties in public). However, none of these cases address the rights of free speech and
press in the context of recording undercover officers.
In Fordyce, the Ninth Circuit recognized a broad and general right to record
matters of public interest. The Smith and Glik courts recognized protection for the
recording of uniformed, non-undercover police personnel. But there are greater
safety concerns when dealing with undercover police officers, preventing
comparison to uniformed police officers. Therefore, these cases are distinguishable
from the present issue facing the Court. There is a greater need to protect the
identity of undercover officers, because a blown cover greatly hampers law
enforcement efforts. “Undercover [law enforcement] means have become a
prominent and sophisticated part of the arsenal of American law enforcement.”
Gary T. Marx, Undercover Police Surveillance in America 14 (1988). In addition,
this Court has repeatedly noted that undercover police officers serve vital and
necessary functions of law enforcement. Lewis v. United States, 385 U.S. 206, 208-
09 (1966); see also United States v. Jimenez Recio, 537 U.S. 270, 276 (2003). A
fundamental premise of undercover police work necessarily entails the protection of
the officer’s true identity, for a blown cover thwarts the very purpose for employing
these officers.
While the circuits diverge on the general issue of whether the First
Amendment extends protection to individuals recording the conduct of police
17
carrying out their public duties, no circuit has addressed the specific right in the
context of undercover officers carrying out a covert operation. Divulgence of an
undercover officer’s true identity can have drastic and serious consequences. These
consequences range from thwarting of the law enforcement measures to grave
safety concerns. When an undercover officer’s cover is blown, law enforcement
experiences the exact hindrance, interruption and interference that Colten
proscribed. Accordingly, there is no First Amendment right to record undercover
police officers during the course of their surreptitious assignments.
B. Even if this Court finds a valid First Amendment right to record an undercover police officer during the course of his or her undercover assignments, that right is not “clearly established.”
Even if this Court recognizes this previously-unrecognized right and finds
that Franklin has alleged a violation of his First Amendment rights, that right is
far from being considered “clearly established.” A public official is entitled to
qualified immunity if a right is not “clearly established” at the time of the violation.
Anderson v. Creighton, 483 U.S. 635, 639 (1987). It can be difficult, if not
impossible, to determine whether a right was “clearly established” without
concurrently analyzing whether a constitutional right has been violated in the first
place. Pearson, 555 U.S. at 236. Regardless, the contours of the right must be “so
conclusively drawn as to leave no doubt that the challenged action was
unconstitutional.” Swanson v. Powers, 937 F.2d 965, 969 (4th Cir. 1991); see also
Anderson, 483 U.S. at 639. While the exact action in question is not required to
have been previously held unlawful, the unlawfulness must be apparent “‘in the
18
light of preexisting law.’” Wilson v. Layne, 526 U.S. 603, 614-15 (1999). (emphasis
added) (citing Anderson, 483 U.S. at 640; see also United States v. Lanier, 520 U.S.
259, 270 (1997)). A closely related inquiry is whether the officer’s conduct was
reasonable under the circumstances. Hunter v. Bryant, 502 U.S. 224, 228 (1991)
(per curiam).
This Court has not dealt with a case involving what, if any, constitutional
protections are available when filming an undercover officer in the course of his or
her official duties. Nor is circuit court case law helpful in delineating any clearly
defined right. The Circuit Courts of Appeal differ in their approach to determining
whether a right was clearly established. The Second, Seventh, Eighth, and Ninth
Circuits use a broad approach by looking to the relevant case law throughout all of
the Circuits. See Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997); Donovan v. City
of Milwaukee, 17 F.3d 944, 952 (7th Cir. 1994); Norfleet v. Ark. Dep’t of Human
Servs., 989 F.2d 289, 291 (8th Cir. 1993); Osolinski v. Kane, 92 F.3d 934, 936 (9th
Cir. 1996). The Fourth, Fifth, and Eleventh Circuits take a narrow approach by
looking only to this Court, their own precedents, or a State’s highest court decisions
when state law is at issue. See Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998);
Brady v. Fort Bend County, 58 F.3d 173, 175 (5th Cir. 1995); Jenkins by Hall v.
Talladega City Bd. of Educ., 115 F.3d 821, 826 (11th Cir. 1997). In between these
two approaches are the First, Sixth and Tenth Circuits who look primarily to their
own precedents but also look to other Circuits’ decisions for a consensus. See El
Dia, Inc. v. Rossello, 165 F.3d 106, 110 (1st Cir. 1999); Blake v. Wright, 179 F.3d
19
1003, 1007 (6th Cir. 1999); Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1257 (10th
Cir. 1998).
Under the narrow approach, Officer Lockte is entitled to qualified immunity.
Neither the Supreme Court nor Fourteenth Circuit has ever established a First
Amendment right to record police officers during the course of their official
assignments. In fact, this Court has held to the contrary. Colten, 407 U.S. at 109.
As a result, Officer Lockte had no reason to think his conduct was unreasonable or
in violation of constitutional protections.
Furthermore, qualified immunity is even appropriate under the broad
approach. There is no consensus among the circuits regarding any recognized right.
In Kelly, the Third Circuit held that it was not clearly established whether a citizen
has a right to secretly record a police officer during a traffic stop. 622 F.3d at 262.
In affirming the dismissal of Kelly’s Section 1983 action, the Third Circuit
conducted an in depth review of numerous cases, including Smith, 212 F.3d 1332,
and Fordyce, 55 F.3d 436. After its analysis, the Third Circuit concluded that if any
right exists it was a general right to record matters of public concern, as those cases
only mentioned such a right in passing. Kelly, 622 F.3d at 261. Interestingly, in
erroneously finding a clearly established right, the Fourteenth Circuit relied on
Smith and Fordyce, the very same cases that were examined in Kelly and dismissed
by the court as holding that there is a clearly established First Amendment right.
The Fourteenth Circuit relied heavily on Glik in finding a clearly established
First Amendment right. However, Glik is inapplicable to the instant case, and, in
20
any event, was wrongly decided. Glik involved the filming of police officers during
an arrest on Boston Common. 655 F.3d at 79. However, nothing in that case
suggests that the officers were acting in an undercover capacity. As discussed in
Section I, A, 2, undercover officers are not the same as uniformed police officers;
rather, they fill a vital and special role in law enforcement. Since Glik does not deal
with undercover officers, it is simply inapplicable to the instant case.
Even if this Court finds Glik instructive, the logic employed by the First
Circuit is unsound. First, the court fails to even address the rule set forth in Colten,
that there is no constitutional right to observe police in the course of their official
duties. The First Circuit also erred in determining that the right was clearly
established. In its brief analysis, the court stated:
What is particularly notable about [First Circuit precedent] is the brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space…This terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment’s protections in this area.
Id. at 84-5. A right simply cannot be “clearly established” when no more than a few
sentences are devoted to defining this right. The First Circuit’s logic – in that a
cursory analysis of a First Amendment right acts to clearly define that right – is
fundamentally flawed.
The circuit courts’ ambiguity and divergence in case law relating to this
“right” requires the conclusion that such a right was not clearly established when
Officer Lockte arrested Franklin. Lending further support to this conclusion that a
right to record undercover officers is not “clearly established,” is the fact that Officer
21
Lockte’s actions in arresting Franklin were reasonable. Officer Lockte was simply
enforcing a valid, applicable and unchallenged statute. This analysis looks to
“whether [an officer] acted reasonable under settled law in the circumstances, not
whether another reasonable, or more reasonable, interpretation of the events can be
constructed.” Hunter, 502 U.S. at 228. “The qualified immunity standard ‘gives
ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent
or those who knowingly violate the law.’” Id. at 229 (citing Malley v. Briggs, 475
U.S. 335, 343 (1986)). “Officials should not err always on the side of caution” due to
the constant fear of suit. Davis v. Scherer, 468 U.S. 183, 196 (1984).
Applying the black letter law of the wiretapping statute to the facts here
shows that the circumstances faced by Officer Lockte supported Franklin’s arrest.
Franklin admitted that he did not have permission to record Officer Phelps. See
Affidavit of Officer Lockte ¶ 8. Based on his training and experience, Officer Lockte
was aware that the New London wiretapping statute required consent of all parties
to record their conversations. Accordingly, Officer Lockte simply arrested Franklin
for violating a valid and applicable law, as any reasonable officer in the same
circumstances would have done.
The record is void of anything that suggests that the wiretapping statute was
ever challenged in the Fourteenth Circuit. Likewise, similar wiretapping statutes,
adopted by many of the states have been challenged and upheld. See Carol M. Bast,
What’s Bugging You? Inconsistencies and Irrationalities of the Law of
Eavesdropping, 47 DePaul L. Rev. 837, 839 (1998) (listing applicable wiretapping
22
and eavesdropping statues in each state); State v. Lambardo, 738 N.E.2d 653, 660
(Ind. 2000) (upholding the state’s wiretapping statute after a constitutional
challenge); State v. Ates, 46 A.3d 550, 558 (2012) (same). Officer Lockte had no
reason to doubt the validity of the statute in the instant case. Upon a simple
reading of the New London wiretapping law, from the perspective of a reasonable
officer and not a legal technician, the facts confronting Officer Lockte supported a
reasonable conclusion that Franklin’s actions violated the wiretapping law and a
resulting arrest would be proper and constitutional.
Applying the law settled in 1972 in Colten, Officer Lockte acted reasonably
under the circumstances. He was preventing the civilian interference and
interruption of official police activity. If a police officer makes a reasonable mistake
as to what the law requires, the officer is entitled to qualified immunity. Saucier,
533 U.S. at 205. Because qualified immunity gives police officers “ample room for
mistaken judgments” by protecting “ all but the plainly incompetent or those who
knowingly violate the law,” Hunter, 502 U.S. at 229 (emphasis added), Officer
Lockte’s conduct did not violate any “clearly established” constitutional right at the
time of Franklin’s arrest. To date, there has never been a Supreme Court case
clearly defining the right to record undercover police officers with sufficient
particularity to apprise Officer Lockte that his conduct was unconstitutional. In
sum, the contours of any such right are far from conclusively drawn. Officer Lockte
had no reason, under the pre-existing law, to assume his conduct was prohibited
under the First Amendment.
23
Officer Lockte is entitled to qualified immunity unless and until Franklin
establishes all prongs of the qualified immunity analysis. However, in the instant
action, Franklin cannot satisfy any of the requisite steps. First, Franklin cannot
show that Officer Lockte violated his First Amendment rights. This Court settled
the question long ago in Colten when it stated that there is “no constitutional right
to observe [police in the performance of their duties].” 407 U.S. at 109. Second,
even if the Court ignores Colten and finds a violation of a constitutional right, that
right is far from “clearly established.” Neither this Court, the Fourteenth Circuit,
nor any clear consensus of persuasive authorities have addressed whether
videotaping an undercover police officer during the course of his official duties is
protected conduct under the First Amendment. Any recognition of this right, if at
all, would be announced for the first time with the instant decision. Officer Lockte
acted reasonably in enforcing a valid, applicable and previously unchallenged law.
For all these reasons, this Court should reverse the ruling of the Fourteenth Circuit.
II. Officer Lockte should receive qualified immunity because he did not violate Franklin’s Fourth Amendment rights; or alternatively, they were not clearly established at the time of his arrest. Officer Lockte is entitled to qualified immunity from Franklin’s cause of
action alleging he violated Franklin’s Fourth Amendment rights when he searched
his cell phone at the time of his arrest for violating New London’s wiretapping
statute. As discussed above, government officials are entitled to qualified immunity
unless 1) the facts show the official’s conduct violated a constitutional right; and 2)
24
the right was clearly established at the time of the official’s violation. Saucier, 533
U.S. at 201; Pearson, 555 U.S. at 232 (giving courts discretion to decide which
element should be determined first). The crux of qualified immunity is the
understanding that “officials should not always err on the side of caution because
they fear being sued.” Hunter, 502 U.S. at 229. Therefore, the qualified immunity
standard provides officials with “ample room for mistaken judgments” by protecting
“all but the plainly incompetent or those who knowingly violate the law.” Id.
With that in mind, Officer Lockte deserves the protection of qualified
immunity. First, Officer Lockte did not violate Franklin’s Fourth Amendment
rights by searching his cell phone incident to his arrest. Second, should this Court
decide to provide greater protection to cell phones and hold the search violated the
Fourth Amendment, qualified immunity still attaches because the right was not
clearly established at the time of Officer Lockte’s search. Therefore, this Court
should reverse the Fourteenth Circuit’s decision and provide Officer Lockte with
qualified immunity from Franklin’s Fourth Amendment claims.
A. Officer Lockte did not violate Franklin’s Fourth Amendment rights when he searched Franklin’s cell phone at the time of his arrest.
Officer Lockte’s search of Franklin’s cell phone did not violate his Fourth
Amendment rights because the search was incident to Franklin’s arrest for
violating New London’s wiretapping statute. The search incident to arrest was
valid because the search took place contemporaneously to Franklin’s arrest and
because the cell phone was immediately associated with Franklin’s person.
Alternatively, this Court could provide more protection to cell phone searches by
25
extending the vehicle search incident to arrest rule set forth in Arizona v. Gant, 556
U.S. 332 (2009), to searches of cell phones incident to arrest. If it does, Officer
Lockte’s search was still valid because it was reasonable to believe the cell phone
contained evidence of the crime of arrest. Regardless, exigent circumstances
existed, justifying Officer Lockte’s search of Franklin’s cell phone. For these
reasons, Officer Lockte’s search of Franklin’s cell phone did not violate his Fourth
Amendment rights.
1. Officer Lockte conducted a valid search incident to arrest when he placed Franklin under lawful arrest and then searched the cell phone immediately associated with his person.
The search of Franklin’s cell phone was a valid search incident to arrest, a
well-settled exception to the warrant requirement of the Fourth Amendment. See
United States v. Robinson, 414 U.S. 218, 224 (1973). This Court delineated the
scope of a search incident to arrest in Chimel v. California, 395 U.S. 752 (1969),
when it held ample justification exists to search the arrestee’s person and the area
within his immediate control. Id. at 763. Searches within these two areas are
reasonable because it preserves officer safety and prevents the destruction or
concealment of evidence. Id.
Subsequently, this Court recognized the need for and provided clear guidance
to police officers regarding searches incident to arrest. See Robinson, 414 U.S. at
235. After arresting the defendant in Robinson for driving without a license, the
officer searched his person and discovered heroin inside a pack of cigarettes located
in his shirt pocket. Id. at 221-23. The Robinson Court established that a lawful
26
arrest justifies a full search of the person and containers found on the person of an
arrestee incident to the arrest. Id. at 235-36. Ruling on the validity of the search,
this Court held the fact of the arrest authorized the search and it does not require
additional justification. Id. at 235. Therefore, courts should not engage in a
hindsight determination in each case of whether one of the justifications recognized
in Chimel existed at the time of the search. Id.
Officer Lockte followed the clear guidance provided by Robinson in his search
of Franklin. The District Court found Officer Lockte arrested Franklin for violating
New London’s wiretapping statute when Franklin videotaped undercover Officer
Phelps. R. 7. While Franklin was unrestrained, Officer Lockte found the cell phone
used to record Officer Phelps on Franklin’s person. R. 5. Officer Lockte then looked
in the cell phone’s video storage contents for the illegal recording to determine
whether Franklin had uploaded the recording of Officer Phelps, which could
threaten his safety. R. 5. Thus, Officer Lockte conducted a valid search incident to
arrest because he lawfully arrested Franklin, found the cell phone on his person,
and conducted a limited search to determine whether the cell phone had uploaded
the illegal recording.
The majority of federal and state courts have followed the guidance of
Robinson’s bright-line rule and held cell phones, a relatively new technology, do not
require a separate rule from other effects properly seized from an arrestee’s person.
See United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007); United States v.
Flores-Lopez, 670 F.3d 803, 810 (7th Cir. 2012) (looking in cell phone incident to
27
arrest does not exceed what Robinson allows); United States v. Murphy, 552 F.3d
405, 411 (4th Cir. 2009) (preserving evidence justified search of cell phone incident
to arrest); Silvan W. v. Briggs, 309 F. App’x 216, 225 (10th Cir. 2009) (unpublished)
(permissible scope of search incident to arrest includes contents of cell phone found
on arrestee’s person).1 For the reasons explained below, this Court should
incorporate cell phones into existing precedent, which would ensure that law
enforcement and courts continue to have clear guidance on the scope of a search
incident to arrest. First, throughout this Court’s Fourth Amendment jurisprudence
it has consistently held that the character of the searched item does not affect the
validity of the search. Second, the type and quantity of information cell phones can
store does not justify creating a separate rule for searches incident to arrest.
a. A consistent theme developed throughout this Court’s Fourth Amendment jurisprudence is that the character of the searched item does not affect the validity of the search.
A common theme throughout various contexts of this Court’s Fourth
Amendment jurisprudence has been that the character of the searched item does
not affect the validity of the search. For example, Robinson held that if an arrest is
lawful, the Fourth Amendment does not require additional justification for the full
search of the person to be reasonable. Robinson, 414 U.S. at 235. Creating a new
1 Fawdry v. State, 70 So. 3d 626, 630 (Fla. Dist. Ct. App. 2011) (valid search incident to arrest of cell phone); see also Gracie v. State, 92 So. 3d 806, 812 (Ala. Crim. App. 2011), reh’g denied (Jan. 27, 2012), cert. denied (Apr. 6, 2012); Hawkins v. State, 723 S.E.2d 924, 925 (Ga. 2012); United States v. Gomez, 807 F. Supp. 2d 1134, 1145 (S.D. Fla. 2011); United States v. Wurie, 612 F. Supp. 2d 104, 110 (D. Mass. 2009).
28
rule that distinguishes between types of items found on an arrestee’s person would
require the additional justification held unnecessary under the Fourth Amendment.
This Court continued this theme in United States v. Edwards, 415 U.S. 800
(1974). This Court held the Fourth Amendment does not exclude evidence searched
for and taken from an arrestee’s effects at the city jail hours after the arrest. Id. at
807. The only qualification was that the effects must have been subject to a search
at the time and place of his arrest. Id. The Court did not find the Fourth
Amendment excludes some effects based on their character. This is a logical
conclusion because distinguishing between effects goes against the language of the
Fourth Amendment. The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures. . . .” U.S. Const. amend. IV (emphasis added). Warrantless
searches incident to arrest are reasonable under the Fourth Amendment. Thus, it
follows that warrantless searches incident to arrest apply to what the Fourth
Amendment protects - all effects.
In Chadwick, this Court reaffirmed that an officer may conduct a prompt,
warrantless search of the arrestee’s person without justification. United States v.
Chadwick, 433 U.S. 1, 14 (1977). There, however, the search was invalid because
the search of the footlocker occurred an hour after the arrest and it was not
immediately associated with the arrestee’s person or within the area of his
immediate control. Id. at 14-15. At its core, the distinguishing factors that made
the search in Chadwick invalid were 1) the search did not qualify as incident to the
29
arrest since it was “remote in time or place from the arrest”, and 2) the seized
footlocker was not immediately associated with the arrestee’s person or within his
immediate control. Id. Again, this Court adhered to the theme that the character
of the seized effects does not determine reasonableness under the Fourth
Amendment.
For these reasons, the Fourteenth Circuit’s decision erroneously relied on
Chadwick in holding Officer Lockte’s search violated the Fourth Amendment. See
R. 20. Unlike the search in Chadwick, which took place more than hour after the
arrestee was securely in custody, Officer Lockte conducted the search immediately
upon his arrest of Franklin and before Franklin was secured. Officer Lockte’s
search was also unlike the Chadwick search of a footlocker not immediately
associated with the arrestee’s person and no longer within the arrestee’s immediate
control due to the remoteness in time of the search. Here, the cell phone was on
Franklin’s person, and therefore immediately associated with him, and Officer
Lockte conducted the search immediately upon arrest due to his concerns for officer
safety. Therefore, the Court of Appeals’ decision incorrectly relied on Chadwick
because it is entirely distinguishable from the facts of this case.
In short, this Court’s Fourth Amendment jurisprudence has drawn
distinctions in the area of searches incident to arrest, but never on the character of
the effects searched incident to arrest. To do so would spawn a subset of litigation
centering on what effects are fair game for searches incident to arrest. With that in
30
mind, this Court should decline the invitation to create a separate rule for cell
phone searches incident to arrest.
b. The type and quantity of information stored by cell phones does not justify creating a separate rule for searches incident to arrest.
The type and quantity of information stored by cell phones also does not
justify disturbing this Court’s clear guidance to law enforcement and courts on
searches incident to arrest. Cell phones do not contain any higher level of personal,
private, or sensitive data than other effects validly searched incident to arrest. For
example, wallets may be searched incident to arrest, yet often contain driver’s
licenses, social security cards, credit cards, and other highly sensitive information.
See United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985) (upholding
search of wallet and papers found on defendants’ persons incident to their arrest).
Similarly, photographs, diaries, and letters also may contain highly personal
information similar to what cell phones store in their memory. Thus, cell phones
store the same types of information that other effects can store, only in a digital
rather than tangible form.
For these reasons, the Seventh Circuit has rejected the argument that a cell
phone, which stores data, requires a separate rule for Fourth Amendment purposes
from other containers that store physical contents. Flores-Lopez, 670 F.3d at 805-
07. The court explained, “[i]f [police are] allowed to leaf through a pocket address
book, as they are, they should be entitled to read the address book in a cell phone.”
Id. at 807 (internal citation omitted). Simply put, courts can easily apply existing
31
rules by analogizing the contents of the searched cell phone to searches of the same
content in tangible form.
This leaves storage capacity as the only other major distinguishing factor
between cell phones and other effects an arrestee can carry on his person. Drawing
a line based on storage capacity would be unwise because ascertaining what storage
capability a cell phone possesses would “be inherently subjective and highly fact
specific, and would require precisely the sort of ad hoc determinations on the part of
officers in the field and reviewing courts that Belton sought to avoid.” See Thornton
v. United States, 541 U.S. 615, 623 (2004). Another reason this would be unwise is
that it would set back the goal of Robinson of providing “a straightforward rule,
easily applied, and predictably enforced.” New York v. Belton, 453 U.S. 454, 459
(1981) (citing Robinson, 414 U.S. at 235).
The leading case holding cell phones may not be searched incident to a lawful
arrest incorrectly relied on the storage capacity and a heightened expectation of
privacy in cell phones. State v. Smith, 920 N.E.2d 949, 954-55 (Ohio 2009); see also
United Sates v. Park, No. CR 05-375SI, 2007 WL 1521573 (N.D. Cal. May, 23, 2007).
As discussed above, distinguishing cell phones based on their storage capacity is ill-
advised because it requires exactly what this Court’s jurisprudence has sought to
avoid – ad hoc determinations by law enforcement in the field and by reviewing
courts. See Thornton, 541 U.S. at 623. However, the major shortcoming of the
court’s decision was its irrelevant analysis of the level of expectation of privacy a
person possesses in a cell phone. It does not matter the level of privacy an arrestee
32
possessed in an effect prior to the arrest because although the arrest of a person
does not destroy the person’s privacy, “it does – for at least a reasonable time and to
a reasonable extent – take his own privacy out of the realm of protection from police
interest in weapons, means of escape, and evidence.” Edwards, 415 U.S. at 808-09.
The facts of this case demonstrate the workability of applying the existing
rules on searches incident to arrest to cell phones. Officer Lockte viewed Franklin
violating New London’s wiretapping statute using his cell phone. Accordingly, he
placed Franklin under arrest and after seizing the cell phone, performed a limited
search for the video recording of Officer Phelps. This Court has recognized that
“[u]questionably, when a person is lawfully arrested, the police have the right,
without a search warrant, to make a contemporaneous search of the person of the
accused . . . for the fruits of or implements used to commit the crime.” Preston v.
United States, 376 U.S. 364, 367 (1964). Here, Officer Lockte made a limited search
to find the fruits of the crime for which he arrested Franklin. Not only has this
Court’s jurisprudence consistently held the character of the searched item does not
affect the validity of a search incident to arrest, the character of cell phones do not
justify a separate rule for searches incident to arrest. For these reasons, this Court
should uphold Officer Lockte’s search of Franklin’s cell phone as a valid search
incident to arrest under its existing jurisprudence.
2. Officer Lockte’s search of the cell phone was also valid if this Court expands its holding in Gant outside the vehicle context.
If this Court determines cell phones require more protection in a search
incident to arrest, it should expand the holding in Arizona v. Gant, 556 U.S. 332
33
(2009), outside the vehicle context to include cell phone searches incident to arrest.
By doing so, Officer Lockte’s search of the cell phone would still be valid, ensuring
officer safety and the collection of evidence, while providing more protection for cell
phones.
In Gant, this court reexamined and clarified its prior holding in New York v.
Belton, 453 U.S. 454 (1981). Belton set forth a straightforward rule to guide police
officers during vehicle searches incident to arrest: when a police officer lawfully
arrests a vehicle’s occupant, he may contemporaneously search the passenger
compartment, and any containers within the compartment, as incident of that
arrest. Id. at 460-61. Lower courts recognized this holding applies with equal force
to containers possessed by an arrestee not in a vehicle due to this Court's
declaration that the Fourth Amendment provides the same protection to containers
in a vehicle as it does other locations. See Arkansas v. Sanders, 442 U.S. 753, 766
(1979), abrogated in part by California v. Acevedo, 500 U.S. 565 (1991); State v.
Roach, 452 N.W.2d 262, 268-69 (Neb. 1990) (collecting cases applying Belton to
warrantless searches of containers incident to arrest where no automobile was
involved).
The Court narrowed Belton’s holding in Gant. There, the Court rejected lower
courts’ broad reading of Belton that would authorize a vehicle search incident to
every arrest even where the arrestee is not within reach of the passenger
compartment. Gant, 556 U.S. at 343 (internal quotations omitted). The Court held
that “circumstances unique to the vehicle context” justifies a search incident to
34
lawful arrest when it is “reasonable to believe evidence relevant to the crime of
arrest might be found in the vehicle.” Id. (quoting Thornton, 541 U.S. at 632
(Scalia, J., concurring in judgment)). The Chimel justifications of officer safety and
preventing the destruction of evidence provides additional authorization for police
to conduct a search incident to arrest “only when the arrestee is unsecured and
within reaching distance of the passenger compartment at the time of the search.”
Id.
If this Court determines cell phones deserve more protection than other
containers subject to a search incident to arrest, it should provide this protection by
expanding the holding in Gant to include searches incident to arrest of cell phones.
By doing so, police officers would be authorized to conduct a search incident to
arrest of a cell phone where it is reasonable to believe evidence relevant to the crime
of arrest might be found in it; or, the more uncommon situation where the arrestee
is unsecured and within reaching distance of the phone. Cell phones would receive
greater protection by requiring searches to be justified by a link between the search
and evidence relevant to the crime of arrest.
Many lower courts’ opinions demonstrate the workability of this rule where
persons arrested for drug related offenses have their cell phones searched for
evidence of their accomplices in either call logs or text messages. See generally
Wurie, 612 F. Supp. 2d 104, 110; United States v. Brookes, CRIM 2004-0154, 2005
WL 1940124, *3 (D.V.I. 2005); United States v. Valdez, 06-CR-336, 2008 WL 360548,
35
*4 (E.D. Wis. 2008). Thus, this rule would still provide courts and police with clear
guidance on the authority to search cell phones while providing greater protection.
Officer Lockte’s search of Franklin’s cell phone satisfies the rule set forth in
Gant and demonstrates searches incident to arrest that further the Chimel
justifications of officer safety and evidence preservation would also remain
authorized under an extension of Gant to cell phones. First, Officer Lockte had a
reasonable belief evidence relevant to the crime of arrest would be found in the cell
phone’s contents. He arrested Franklin for violating New London’s wiretapping
statute when Franklin used his cell phone to record undercover officer Phelps
without Phelps’ consent. R. 7. Officer Lockte, therefore, reasonably believed
evidence was in the cell phone’s storage because the cell phone was the instrument
of the crime and contained the recording necessary to show Franklin’s violation of
the statute. His reasonable belief justified the search of the cell phone for the
evidence.
Second, Franklin was unsecured and within reaching distance of the phone
when Officer Lockte seized the phone from Franklin’s possession. See R. 5.
Furthermore, Officer Lockte recognized that if Franklin had uploaded the video,
Officer Phelps’ cover could be blown. Id. This possibility threatened Officer Phelps’
safety as well as the safety of other officers, both in uniform and plain clothes.
Ensuring the safety of officers is one justification for a search incident to arrest. See
Chimel, 395 U.S. at 763. As a result, Officer Lockte was authorized to search the
36
phone because the recording posed a threat to Officer Phelps’ safety if Franklin had
uploaded the recording. See R. 5.
3. If this Court excludes cell phones from searches incident to arrest, exigent circumstances justified Officer Lockte’s search.
Officer Lockte’s search also did not violate Franklin’s Fourth Amendment
rights because exigent circumstances existed at the time of the search. Exigent
circumstances is defined as "compelling need for official action and no time to secure
a warrant." Michigan v. Tyler, 436 U.S. 499, 509 (1978). Although whether exigent
circumstances existed is necessarily fact-specific, this Court’s jurisprudence has
always looked to the need for prompt action by the government and whether
delaying the search to obtain a warrant would be unacceptable. See United States
v. Santana, 427 U.S. 38, 43 (1976) (search justified because of need to act quickly
and realistic expectation that delay would result in destruction of evidence); Warden
v. Hayden, 387 U.S. 294, 298-99 (1967) (delaying search would have endangered
police officers); Schmerber v. California, 384 U.S. 757, 770-71 (1966) (delay to obtain
warrant would threaten destruction of evidence). Thus, this Court has recognized
four situations can justify a warrantless intrusion: 1) the risk of danger to the police
or other persons; 2) imminent destruction of evidence; 3) hot pursuit of a fleeing
felon; or 4) the need to prevent a suspect’s escape. Minnesota v. Olson, 495 U.S. 91,
100 (1990). Whether exigent circumstances existed is viewed through the eyes of a
reasonable police officer. Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006).
Both the risk of danger to undercover officer Phelps and the possibility of
destruction of evidence justified Officer Lockte’s search of Franklin’s cell phone.
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Hundreds of protesters were participating in the “occupation” of Hide Park. R. 2.
Similar protests in other cities had become increasingly violent. R. 5. Officer
Phelps went undercover to learn the protesters’ plans so the New London Police
Department could respond appropriately. R. 2. Officer Lockte viewed Franklin
recording Officer Phelps talking to a uniformed police officer and knew the
protesters were uploading videos to a website, 99percent.com. R. 4-5. These facts
led to Officer Lockte’s reasonable belief that Officer Phelps’ cover could be
compromised by the recording. R. 5. Given the number of people involved in the
occupation of Hide Park, a reasonable officer could conclude that not only could
uploading the video endanger Officer Phelps’ safety, but could also lead to violence
between the protesters and other officers in the police department. The threat
posed to Officer Phelps and other police officers if Phelps’ identity were revealed to
the protesters justified Officer Lockte’s limited search of Franklin’s cell phone to
determine whether the video had been uploaded. In fact, nothing in the record
indicates Officer Lockte searched any area of Franklin’s cell phone other than the
open video application.
The possibility of destruction of evidence also justified Officer Lockte’s search
of the cell phone. Officer Lockte arrested Franklin for violating New London’s
wiretapping statute based on Franklin’s recording of Officer Phelps without
consent. The recording located on Franklin’s cell phone was the evidence
demonstrating Franklin’s violation of the statute. As cell phone technology becomes
more advanced, so do their capabilities to remotely wipe data from their storage
38
memory. In fact, “[a]ll of the major smartphone platforms have some kind of remote
erase capability.” Jamie Lendino, How to Remotely Disable Your Lost or Stolen
Phone, PCMAG.COM,
http://www.pcmag.com/article2/0%2C2817%2C2402937%2C00.asp. Turning off the
phone does not guarantee that data will not be remotely wiped because servers can
continue sending the remote wipe command, which will subsequently occur
whenever the device is turned on again. Eunice Park, Traffic Ticket Reasonable,
Cell Phone Search Not: Applying the Search-Incident-to-Arrest Exception to the
Cell Phone As "Hybrid", 60 Drake L. Rev. 429, 491-92 (2012). Thus, the possibility
of Franklin remotely wiping the recording from his phone, consequently destroying
the critical evidence bearing on the crime of arrest, was an exigent circumstance
justifying Officer Lockte’s limited search for the recording and uploading status on
Franklin’s phone.
B. Assuming, arguendo, this Court determines the search of Franklin’s cell phone violated his Fourth Amendment rights, Officer Lockte is still entitled to qualified immunity because the right was not clearly established at the time of the search.
Should this Court determine the Fourth Amendment does not provide any
authority for a warrantless search of an arrestee’s cell phone, Officer Lockte is still
entitled to qualified immunity because the right was not clearly established at the
time of the search. To support a finding the right was clearly established, “[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson, 483 U.S. at 640.
39
While the specific action does not have to be previously held unlawful, the
unlawfulness must be apparent in light of pre-existing law. Id.
As discussed above in Section I, B, courts have taken three varying
approaches as to what law is considered when determining whether a right is
“clearly established.” Under the narrowest approach, the right was not clearly
established because neither this Court nor the Fourteenth Circuit has recognized a
Fourth Amendment right protecting cell phones from warrantless searches incident
to arrest or in any other context. See R. 11. However, even if this Court takes the
broadest approach, case law throughout all the Circuits also requires the conclusion
that the right was not clearly established at the time of Officer Lockte’s search. Of
the courts who have dealt with similar factual scenarios – the warrantless search of
a cell phone – the majority of those courts have upheld the searches. See, e.g., State
v. Nix, 237 P.3d 842, 851 (Or. App. 2010); United States v. Espinoza, 06-40130-01-
JAR, 2007 WL 1018893, at *6 (D. Kan. Apr. 3, 2007); United States v. McCray,
CR408-231, 2009 WL 29607, at *4 (S.D. Ga. Jan. 5, 2009). This fact alone supports
the conclusion the right was not clearly established.
Other courts, however, have found similar searches did violate the
arrestee’s Fourth Amendment rights. See, e.g., State v. Smith, 920 N.E.2d 949, 955
(Ohio 2009); United States v. McGhee, 8:09CR31, 2009 WL 2424104, at *3 (D. Neb.
July 21, 2009); United States v. Wall, 08-60016-CR, 2008 WL 5381412, at *4 (S.D.
Fla. Dec. 22, 2008), aff'd, 343 F. App'x 564 (11th Cir. 2009). Where the state of the
law is undeveloped, officers cannot be “expected to predict the future course of
40
constitutional law.” Wilson, 526 U.S. at 617. As this Court has noted, “[i]f judges
thus disagree on a constitutional question, it is unfair to subject police to money
damages for picking the losing side of the controversy.” Id. at 618. Consequently,
the unclear state of the law requires the conclusion that even if Franklin’s Fourth
Amendment rights were violated in this case (which they were not), that right was
not clearly established. For all these reasons, Officer Lockte is entitled to qualified
immunity from Franklin’s Fourth Amendment claim.
CONCLUSION
WHEREFORE, Petitioner, Officer Bryan Lockte, respectfully requests this
honorable Court to reverse the ruling of the Fourteenth Circuit Court of Appeals
and find that Officer Lockte is entitled to qualified immunity on Respondent’s First
and Fourth Amendment claims.
Respectfully submitted,
_________________________________________ Team 803
Counsel for Petitioner, Officer Bryan Lockte.
