Team 807

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2012

______________

DOCKET NO. 2012-01 ______________

BRYAN LOCKTE,

PETITIONER,

V.

MICHAEL FRANKLIN, RESPONDENT.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT

BRIEF OF THE PETITIONER, BRYAN LOCTKE

TEAM 807 ATTORNEYS FOR THE PETITIONER, BRYAN LOCKTE

   

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TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................. i TABLE OF AUTHORITIES ......................................................................................... iii STATEMENT OF THE ISSUES .................................................................................... 1 STATEMENT OF THE CASE ........................................................................................ 2 STATEMENT OF THE FACTS ..................................................................................... 5 SUMMARY OF THE ARGUMENT ............................................................................... 8 ARGUMENT ................................................................................................................ 10

I. QUALIFIED IMMUNITY APPLIES TO A POLICE OFFICER WHEN THE RIGHT TO VIDEOTAPE AN OFFICER IN PUBLIC IN THE COURSE OF HIS DUTIES IS NOT CLEARLY ESTABLISHED UNDER THE FIRST AMENDMENT AT THE TIME OF PETITIONER’S ALLEGED VIOLATION, OR, IF THAT RIGHT WAS CLEARLY ESTABLISHED, WHEN INTENTIONAL INTERFERENCE WITH POLICE OPERATIONS OR THE SAFETY OF THE OFFICER OR THE PUBLIC PRECLUDES FIRST AMENDMENT PROTECTION OF THE RESPONDENT’S CONDUCT. ............ 11

A. Civil liability for police officers is precluded when the right to videotape

an officer in public in the course of his duties is not clearly established under the First Amendment at the time of Petitioner’s alleged violation ...... 13

B. Civil liability for police officers is precluded by exceptions to First

Amendment protections, even when the right to videotape a police officer in public in the course of his duties is clearly established under the First Amendment at the time of Petitioner’s alleged violation. ............................... 16

1. Even if the right to videotape a police officer in public in the course

of his duties is clearly established under the First Amendment, the First Amendment does not protect Respondent’s conduct when Respondent intentionally interferes with a police officer in the police officer’s official duty ...................................................................... 17

a. Respondent violates 36 C.F.R. § 2.32(a)(1) when Respondent intentionally interferes with a government employee or agent in an official duty .......................................................................... 17

   

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b. The First Amendment does not protect Respondent’s conduct when he intentionally obstructs government operations under 36 C.F.R. § 2.32(a)(1) ......................................................... 21

2. Even if the right to videotape a police officer in public in the course of his duties is clearly established under the First Amendment, the First Amendment does not protect Respondent’s conduct when Respondent’s actions threaten the safety of the police officer and of the public ................................................................................................. 23

II. QUALIFIED IMMUNITY APPLIES TO A POLICE OFFICER WHO

SEARCHES A CELL PHONE INCIDENT TO ARREST WHEN THE SEARCH IS REASONABLE IN TIME, PLACE AND SCOPE OR WHEN EXIGENT CIRCUMSTANCES APPLY BECAUSE THE RIGHT TO BE FREE FROM A WARRANTLESS SEARCHES OF A CELL PHONE INCIDENT TO ARREST IS NOT A PROTECTED RIGHT UNDER THE FOURTH AMENDMENT, AND IF IT IS A PROTECTED RIGHT, THE RIGHT WAS NOT CLEARLY ESTABLISHED AT THE TIME OF PETITIONER’S ALLEGED VIOLATION…………………………………..........27

A. Civil liabilty for police officers is precluded when an officer lawfully searches a cell phone incident to arrest under the Fourth Amendment because exceptions to the warrant requirement apply .................................... 31

1. A police officer is lawfully permitted to search a cell phone incident to arrest under the Fourth Amendment exception to the warrant requirement when the search is reasonably limited in time, place, and scope .................................................................................................. 31

2. A police officer is lawfully permitted to search a cell phone incident

to arrest when the exigent circumstances of officer safety or the preservation of evidence exist ................................................................. 38

B. Civil liability for police officers is precluded when an officer lawfully

searches a cell phone incident to arrest because the law was not clearly established under the Fourth Amendment at the time of Respondent’s alleged violation. ................................................................................................ 43

CONCLUSION .............................................................................................................. 48 CERTIFICATE OF COMPLIANCE ............................................................................. 49

   

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TABLE OF AUTHORITIES

United States Supreme Court Cases Adderley v. Florida, 385 U.S. 39 (1966) ...................................................................... 22 Anderson v. Creighton, 483 U.S. 635 (1987) .......................................................... 10, 46 Arizona v. Gant, 556 U.S. 332 (2009) ........................................................ 28, 29, 30, 36 Ashcroft v. al-Kidd, 563 U.S. ___, 131 S.Ct. 2074 (2011) ............................................ 10 Cantwell v. Connecticut, 310 U.S. 296 (1940) ............................................................. 26 Carey v. Brown, 447 U.S. 455 (1980) .......................................................................... 22 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ........................................... 23, 24 Chimel v. California, 395 U.S. 752 (1969), abrogated by Davis v. United

States, 131 S.Ct. 2419 (2011) .......................................................... 27, 28, 30, 32, 37 Feiner v. New York, 340 U.S. 315 (1951) .................................................................... 24 Haig v. Agee, 453 U.S. 280 (1981) .......................................................................... 18, 23 Harlow v. Fitzgerald, 457 U.S. 800 (1982) .................................................................. 10 Illinois v. Krull, 480 U.S. 340 (1987) ........................................................................... 14 Illinois v. Rodriguez, 497 U.S. 177 (1990) ................................................................... 18 Louisiana ex rel. Gremillion v. Nat’l Ass’n for the Advancement of Colored

People, 366 U.S. 293 (1961) .................................................................................... 25 Michigan v. DeFillippo, 443 U.S. 31 (1979) ................................................................. 14 Mincey v. Arizona, 437 U.S. 385 (1978), overruled by Mapp v. Ohio, 437 U.S.

385 (1961) ................................................................................................................. 30 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978) ............................................... 21 Pearson v. Callahan, 555 U.S. 223 (2009) ............................................................. 10, 12 Procunier v. Navarette, 434 U.S. 555 (1978) ................................................................ 15 Rawlings v. Kentucky, 448 U.S. 98 (1980) .................................................................. 28 Texas v. Brown, 460 U.S. 730 (1983) .......................................................................... 28 United States v. Chadwick, 433 U.S. 1 (1977), abrogated by California v.

Acevedo, 500 U.S. 565 (1991) ...................................................................... 31, 32, 33 United States v. Robinson, 414 U.S. 218 (1973) .................................................... 31, 38 Warden v. Hayden, 387 U.S. 294 (1967) ...................................................................... 38 Weeks v. United States, 232 U.S. 383 (1914) .............................................................. 28 United States Court of Appeals Cases Figg v. Schroeder, 312 F.3d 625 (4th Cir. 2002) .......................................................... 25 Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) .......................................... 15, 21 Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) ............................................. 10, 12, 13, 15 Harrison v. Deane, 426 F. App’x 175 (4th Cir. 2011) .................................................. 25 Jones v. Parmley, 465 F.3d 46 (2d Cir. 2006) ........................................................ 24, 25 Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) ........................................... 15 Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009). ............................................... 12 Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) ................................. 15, 21 Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009) ................................................. 15 United States v. Brooks, 367 F.3d 1128 (9th Cir. 2004) .............................................. 38

   

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United States v. Cardenas-Alatorre, 485 F.3d 1111 (10th Cir. 2007) ........................ 14 United States v. Finley, 477 F.3d 250 (5th Cir. 2007) ..................................... 29, 44, 45 United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012) .......................... 29, 38, 41 United States v. Hastings, 695 F.2d 1278 (11th Cir. 1983) ........................................ 21 United States v. Lottie, No. 3:07cr51RM, 2008 WL 150046 (9th Cir. Jan. 14,

2004) ................................................................................................................... 38, 39 United States v. Murphy, 552 F.3d 405 (4th Cir. 2009) .................................. 28, 29, 45 United States v. Young, 278 F. App’x 242 (4th Cir. 2008) .......................................... 40

United States District Court Cases Gravolet v. Tassin, No. 08-3646, 2009 WL 1565864 (E.D. La. June 2, 2009) ............ 15 Matheny v. Cnty. of Allegheny, No. 09-1070, 2010 WL 1007859 (W.D. Pa.

March 16, 2010) ....................................................................................................... 15 Newhard v. Borders, 649 F.Supp. 2d 440 (W.D. Va. 2009) ................................... 44, 45 Schlossberg v. Solesbee, 844 F.Supp. 2d 1165 (D. Oregon 2012) ................................ 44 United States v. De La Paz, 43 F.Supp. 2d 370 (S.D.N.Y. 1999) ................................ 35 United States v. Gomez, 807 F.Supp. 2d 1134 (S.D. Fla. 2011) .......... 29, 31, 33, 35, 45 United States v. Mercado-Nava, 486 F.Supp. 2d 1271 (D. Kansas 2007) .................. 40 United States v. Parada, 289 F.Supp. 2d 1291 (D. Kansas 2003) .............................. 40 United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May

23, 2007) ............................................................................................................. 42, 45 United States v. Quintana, 594 F.Supp. 2d 1291 (M.D. Fla. 2009) ............................ 30 United States v. Santillan, 571 F.Supp. 2d 1093 (D. Ariz. 2008) ............. 29, 33, 34, 38 United States v. Twinn, 369 F.Supp. 2d 721 (E.D. Va. 2005) ......................... 18, 19, 20 United States v. Wall, No. 08-60016-CR, 2008 WL 5381412 (S.D. Fla. Dec. 23,

2008) ............................................................................................................. 42, 43, 46 United States v. Wurie, 612 F.Supp. 2d 104 (D. Mass. 2009) ............................... 29, 45 United States v. Zamora, No. 1:05 CR 250 WSD, 2006 WL 418390 (N.D. Ga.

Feb. 23, 2006) ........................................................................................................... 40 State Court Cases DiPino v. Davis, 354 Md. 18 (Md. Ct. App. 1999) ....................................................... 20 Hawkins v. State, 723 S.E.2d 924 (Ga. 2012) ........................................................ 36, 45 People v. Diaz, 244 P.3d 501 (Cal. 2011) ................................................................ 29, 44 Smallwood v. State, 61 So.3d 448 (Fla. Dist. Ct. App. 2011) ...................................... 36 State v. Smith, 920 N.E.2d 949 (Ohio 2009) .................................. 28, 40, 42, 44, 45, 46 Federal Statutes and Regulations 36 C.F.R. § 2.32 (1987) ...................................................................................... 17, 18, 24

   

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Other Sources Tera Kelly, ‘I’m Getting Arrested’ App Inspired By Occupy Wall Street

Protests, Nov. 19, 2011, http://www.huffingtonpost.com/2011/10/17/im-getting-arrested-app-occupy-wall-street_n_1016704.html .................................... 41

Letter dated May 14, 2012 from Jonathan M. Smith, Chief, Special Litigation Section, U.S. Department of Justice Civil Rights Division, to Mark H. Grimes, Baltimore Police Department Office of Legal Affairs, and Mary E. Borja, Wiley Reinn LLP, at 6 (available at http://justice.gov/crt/abut/spl/documents/Sharp_ltr_5-14-12.pdf) ......................... 24

   

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QUESTIONS PRESENTED

I. WHETHER PETITIONER IS ENTITLED TO QUALIFIED IMMUNITY FROM RESPONDENT’S FIRST AMENDMENT CLAIM WHEN THE ARREST RELATED TO RESPONDENT’S INTERFERENCE WITH AND OBSTRUCTION OF AN ONGOING LAW ENFORCEMENT INVESTIGATION AND RESPONDENT’S FIRST AMENDMENT RIGHT TO VIDEOTAPE AN OFFICER WAS NOT CLEARLY ESTABLISHED.

II. WHETHER PETITIONER IS ENTITLED TO QUALIFIED IMMUNITY FROM RESPONDENT’S FOURTH AMENDMENT CLAIM WHEN PETITIONER SEARCHED RESPONDENT’S CELL PHONE INCIDENT TO A LAWFUL ARREST, THE SCOPE OF THE SEARCH WAS REASONABLE, EXIGENT CIRCUMSTANCES EXISTED, AND RESPONDENT’S RIGHT WAS NOT CLEARLY ESTABLISHED.

   

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STATEMENT OF THE CASE

The Petitioner, Officer Bryan Lockte (“Officer Lockte”), requests this Court

reverse the United States Court of Appeals for the Fourteenth Circuit’s decision

that Officer Lockte is not entitled to qualified immunity from Respondent’s First

and Fourth Amendment claims. The two issues before this Court are whether: (1)

there is a First Amendment right to videotape police officers during the course of

their duties; and (2) Officer Lockte’s search of Respondent’s cell phone was a

permissible search under the search incident to arrest exception to the Fourth

Amendment warrant requirement. However, should this Court find Respondent’s

First and Fourth Amendment rights were violated, this Court should find that those

rights were not clearly established at the time of the alleged violation and that

Officer Lockte is entitled to qualified immunity.

In September 2011, after a month-long “occupation” of Hide Park,

Respondent Michael Franklin videotaped Officer Matthew Phelps (“Officer Phelps”),

an undercover New London police officer who posed as a leader of the “occupation”

movement to provide the police department with information. (R. at 2.) Officer

Lockte observed Respondent using Respondent’s cell phone to videotape Officer

Phelps talking with uniformed New London Police Department (“NLPD”) officers.

(R. at 2.) Officer Lockte feared Respondent would post the video of Officer Phelps to

the website “99percent.com,” which would reveal that Officer Phelps was actually

an undercover police officer; the protesters’ realization that Officer Phelps was not

in fact a movement leader would lead to violence. (R. at 2.) Officer Lockte was

   

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concerned that if Respondent uploaded the video to the website, there would be

little time to protect Officer Phelps and maintain order among the protesters. (R. at

6.)

Officer Lockte asked Respondent whether he had permission to videotape

Phelps. (R. at 5.) Respondent indicated he did not have permission. (R. at 5.) Officer

Lockte seized Respondent’s cell phone and accessed the open video application to

determine whether it had been posted to the website, revealing Officer Phelps

identity as a police officer. (R. at 5, 6.) Officer Lockte then arrested Respondent for

violating New London’s wiretapping statute. (R. at 5, 6.)

Though Respondent was not prosecuted for violating the city’s wiretapping

law, he filed a 42 U.S.C. § 1983 claim in federal court alleging his First and Fourth

Amendment rights were violated when Officer Lockte arrested him for videotaping

Officer Phelps during the course of his duties and when Officer Lockte searched the

cell phone incident to Respondent’s arrest. (R. 3, 13.)

The United States District Court for the District of New London found that

Respondent’s constitutional rights were not violated because “there is no First

Amendment right to video police officers during the course of their duties” and

because the search of the cell phone was justified as a search incident to arrest in

order to quickly preserve evidence and maintain officer safety. (R. at 10-11, 13.) On

appeal, the United States Court of Appeals for the Fourteenth Circuit reversed,

finding Officer Lockte was not entitled to qualified immunity because First and

   

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Fourth Amendment rights were violated and those rights were clearly established

at the time of the alleged violation. (R. at 14, 15, 17, 22.)

Officer Lockte subsequently filed a Petition for Writ of Certiorari. The

Supreme Court of the United States granted the application.

   

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STATEMENT OF THE FACTS

In September 2011, hundreds of protesters began a month-long “occupation”

of Hide Park, New London, to protest the economic downturn in the city. (R. at 4.)

For more than for weeks during the “occupation,” Officer Bryan Lockte (“Officer

Lockte”), a former United States Marine and a fifteen-year veteran of the City of

New London Police Department (“NLPD”), was assigned to ensure the safety of an

undercover officer, Matthew Phelps (“Officer Phelps”), during the Occupy Hide Park

protests. (R. at 4.) Officer Phelps was posing as an “occupation” leader to provide

information to NLPD headquarters in an attempt to contain the protests to Hide

Park. (R. at 2.)

During the fourth week of the “occupation,” one protestor, Respondent,

became suspicious Officer Phelps was an undercover NLPD officer and genuine

leader of the movement. (R. at 2.)

On September 28, 2011, Officer Lockte observed Respondent using

Respondent’s cell phone to videotape Officer Phelps talking with uniformed NLPD

officers. (R. at 2.) Officer Lockte asked Respondent whether he had consent from

Officer Phelps to videotape Phelps. (R. at 5.) Respondent replied, “What do you

think?” and indicated he was aware Phelps was a police officer, exclaiming, “He is

one of you.” (R. at 5.)

Officer Lockte feared Respondent would reveal Officer Phelps was an

undercover officer, and not a movement leader, by posting the video of Officer

Phelps to the website “99percent.com.” (R. at 2.) Officer Lockte was concerned that

   

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if the video were posted online, Officer Phelps’ safety, as well as the safety of the

protesters and other officers would be jeopardized because of the protesters’

reactions to the video. (R. at 5.) The protest “intensified” over the preceding days,

while protests in other cities were becoming “increasingly violent,” although there

had not yet been any arrests at Hide Park. (R. at 5.)

Fearing he had little time to “protect Officer Phelps or maintain order among

the protesters,” Officer Lockte accessed Respondent’s cell phone. (R. at 6.) Officer

Lockte found a posting of the video in the phone’s open video application. (R. at 6.)

The video had not yet been uploaded to the website, but it did have a message –

Why is Phelps so chummy with the NLPD? – appended to the video, which

insinuated Respondent knew Officer Phelps was a police officer. (R. at 6.) Officer

Lockte arrested Respondent for violating New London’s wiretapping statute. (R. at

5, 6.)

Though Respondent was not ultimately charged under the wiretapping law,

he filed a claim in federal court alleging his First and Fourth Amendment rights

were violated when Officer Lockte arrested him for videotaping Officer Phelps

during the course of his duties and when Officer Lockte searched the Respondent’s

cell phone incident to arrest. (R. at 3, 13.)

The United States District Court for the District of New London held that

Officer Lockte did not violate Respondent’s First or Fourth Amendment rights

because there is no First Amendment right to videotape police officers during the

course of their duties, and because the cell phone search was a valid search incident

   

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to arrest. (R. at 10, 11, 13.) The United States Court of Appeals for the Fourteenth

Circuit reversed the lower court, finding a First Amendment right to record police

activities and holding that the cell phone search was not incident to arrest because

the cell phone was not in Respondent’s “immediate control.” The Fourteenth Circuit

found that Officer Lockte was not entitled to qualified immunity. (R. at 22.)

   

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SUMMARY OF THE ARGUMENT

A law enforcement officer is entitled to qualified immunity to a § 1983 claim

for the violation of a constitutional right where: 1) the alleged conduct does not

violate a constitutional right; and 2) if the conduct does violate a constitutional

right, the right is not clearly established. If a plaintiff fails to satisfy either part of

this test, the officer is immune from civil liability.

The right to videotape a police officer in public in the course of his duties is

not a clearly established First Amendment right. If, however, the right was clearly

established at the time of the officer’s alleged violation of Respondent’s right,

exceptions preclude constitutional protection for the Respondent. Specifically, the

First Amendment does not protect actions that: (1) intentionally interfere with an

officer’s duties; or (2) endanger an officer’s or the public’s safety. In this case, Officer

Lockte is entitled to qualified immunity because Respondent’s First Amendment

right to videotape a police officer was not clearly established at the time of

Respondent’s arrest. If the right was established, exceptions to First Amendment

protection apply. Respondent’s conduct is not protected in this case because

Respondent’s actions: (1) intentionally interfered in Officer Lockte’s official duties;

and (2) threatened the safety of Officer Lockte and the public.

A police officer is justified in searching a cell phone incident to arrest when

the search is limited in time, place, and scope. Additionally, the critical need to

protect officer safety and to prevent the destruction of evidence also justifies

searching a cell phone incident to arrest. In this case, Respondent’s Fourth

   

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Amendment right to be free from a warrantless search of a cell phone incident to

arrest was not violated, nor was that right clearly established. The warrantless

search of Respondent’s cell phone incident to his arrest does not violate the Fourth

Amendment because the search was justified to protect officer safety and to

preserve evidence. Further, Respondent’s right to be free from a warrantless search

of a cell phone incident to arrest was not a clearly established right at the time of

the alleged violation. Officer Lockte is entitled to qualified immunity because

Respondent’s Fourth Amendment right was not violated nor was the right clearly

established.

   

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ARGUMENT

This Court should reverse the United States Court of Appeals for the

Fourteenth Circuit and hold that qualified immunity applies when an officer makes

an arrest and there is no (1) constitutional right that is violated, and (2) that right

is not clearly established.

Qualified immunity shields a law enforcement officer from civil liability so

long as his conduct does not violate “clearly established” rights that a reasonable

person would have known at the time of the conduct. Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). Courts utilize a two-part test to determine whether a law

enforcement officer is entitled to qualified immunity. Pearson v. Callahan, 555 U.S.

223, 232 (2009). A law enforcement officer is entitled to qualified immunity unless:

(1) the facts that a plaintiff alleges or shows is a violation of a plaintiff’s

constitutional right; and (2) that constitutional right was clearly established at the

time of the alleged violation. Id. The parts need not be resolved in order. Id. at 236.

A right is “clearly established” when “every reasonable official would have

understood that what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987). Simply stated, a right is clearly established when “existing

precedent . . . place[s] the . . . question beyond debate.” Ashcroft v. al-Kidd, 563 U.S.

___, 131 S.Ct. 2074, 2083 (2011); see also Glik v. Cunniffe, 655 F.3d 78, 81 (1st Cir.

2011).

This Court should hold that an arrest under a wiretapping statute does not

violate the Constitution when there is no clearly established First Amendment right

   

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to videotape an officer in public in the course of his duties at the time of the arrest..

Further, when the right to videotape the officer was clearly established at the time

of the arrest, Respondent is precluded from constitutional protection if exceptions,

including international interference in the duties of an officer and public safety, to

the First Amendment apply.

This Court should also find that a search of a cell phone incident to arrest is

lawful when the search is reasonable in time, place and scope or when the exigent

circumstances of officer safety and the need to prevent the destruction of evidence

exist. Additionally, the right to be free from a search of a cell phone incident to

arrest is not clearly established.

I. QUALIFIED IMMUNITY APPLIES TO A POLICE OFFICER WHEN THE RIGHT TO VIDEOTAPE AN OFFICER IN PUBLIC IN THE COURSE OF HIS DUTIES IS NOT CLEARLY ESTABLISHED UNDER THE FIRST AMENDMENT AT THE TIME OF PETITIONER’S ALLEGED VIOLATION, OR, IF THAT RIGHT WAS CLEARLY ESTABLISHED, WHEN INTENTIONAL INTERFERENCE WITH POLICE OPERATIONS OR THE SAFETY OF THE OFFICER OR THE PUBLIC PRECLUDES FIRST AMENDMENT PROTECTION OF THE RESPONDENT’S CONDUCT.

This Court should reverse the United States Court of Appeals for the

Fourteenth Circuit and hold that Officer Bryan Lockte did not violate Respondent’s

First Amendment rights. If this Court determines Respondent’s rights were

violated, it should hold Officer Lockte is entitled to qualified immunity because the

law under which Respondent was arrested did not violate a clearly established right

to record officers. If this Court determines that right was clearly established at the

   

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time of the alleged violation, the First Amendment protection does not apply to

Respondent’s conduct because of First Amendment exceptions.

The Fourteenth Circuit incorrectly framed the central issue in this case. The

Fourteenth Circuit held that no time, place and manner restrictions override the

First Amendment right to videotape an officer in the course of his duties in a public

place. However, while Petitioner does not contest the inapplicability of time, place

and manner restrictions to the present case, it asserts that: (1) the wiretapping law

under which Respondent was arrested did not violate a clearly established right to

record officers; and (2) even if the First Amendment right was clearly established at

the time of the alleged violation, two exceptions to that protection apply to this case.

Specifically, Respondent intentionally interfered with Officer Phelps’ official duties,

endangering the safety of the officers and the public.

The First Circuit established a two-part test to determine whether an agent

of the government should be subject to qualified immunity. Glik v. Cunniffe, 655

F.3d 78, 81 (1st Cir. 2011). The parts, which may be resolved in any order, are: (1)

“whether the facts alleged or shown by the plaintiff make out a violation of a

constitutional right;” and (2) if so, whether the right was “clearly established” at the

time of the defendant's alleged violation. Pearson v. Callahan, 555 U.S. 223, 236

(2009); see also Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). In Glik v.

Cunniffe, the defendant claimed his First Amendment rights were violated when

police officers arrested him under Massachusetts’ wiretapping statute because he

filmed the arrest of another protester. 655 F.3d 78, 81 (1st Cir. 2011). The First

   

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Circuit held that the police officers were not entitled to qualified immunity because,

subject to exceptions: (1) the First Amendment protects the right to videotape

officers performing their duties in public; and (2) that right was established in the

jurisdiction at the time of the violation. Id.

In the present case, however, an analysis of the two parts of the test reveals

the opposite result than in Glik. First, the right to videotape an officer in the course

of his duties in a public place was not clearly established at the time of

Respondent’s arrest under the wiretapping statute1. Second, even if that right was

clearly established, no violation of Respondent’s constitutional right occurred

because two exceptions to First Amendment protection apply. Specifically, the First

Amendment does not protect actions that (1) intentionally interfere with an officer’s

duties, or (2) endanger an officer’s or the public’s safety. Ultimately, Officer Lockte

did not violate Respondent’s rights; however, if this Court determines Respondent’s

rights were violated, Officer Lockte is entitled to qualified immunity because those

rights were not clearly established at the time of Respondent’s arrest.

A. Civil liability for police officers is precluded when the right to videotape an officer in public in the course of his duties is not clearly established under the First Amendment at the time of Petitioner’s alleged violation.

Officer Lockte’s arrest of Respondent for videotaping an undercover officer in

violation of New London’s wiretapping law was justified and reasonable. Under the

First Amendment, the right to videotape a police officer in public was not

                                                                                                                         1 The City of New London’s wiretapping law 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 of the 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  

   

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established in the Fourteenth Circuit or by this Court at the time of Respondent’s

alleged violation of the wiretapping statute. Further, the circuit split regarding the

existence of a clearly established right to record an officer is too disparate for police

officers in the Fourteenth Circuit, where this is an issue of first impression, to know

whether a particular action violates the law.

This Court has held “[t]he enactment of a law forecloses speculation by

enforcement officers concerning its constitutionality-with the possible exception of a

law so grossly and flagrantly unconstitutional that any person of reasonable

prudence would be bound to see its flaws.” Michigan v. DeFillippo, 443 U.S. 31, 38

(1979); see also Illinois v. Krull, 480 U.S. 340, 349–50 (1987) (“Unless a statute is

clearly unconstitutional, an officer cannot be expected to question the judgment of

the legislature that passed the law”). Further, “[p]olice are charged to enforce laws

until and unless they are declared unconstitutional.” Id. Generally, a police officer is

not expected to question “the will of the majority embodied in a duly, and

democratically, enacted law,” except in the rarest of instances. United States v.

Cardenas–Alatorre, 485 F.3d 1111, 1117 n. 15 (10th Cir. 2007).

At the time Officer Lockte arrested Respondent for violating the wiretapping

statute, no rulings, case law or statutes existed within the Fourteenth Circuit or the

City of New London to indicate to a reasonable person the wiretapping statute

violated the First Amendment. Even this Court has not decided the constitutional

implications of arrests of protesters based on wiretapping statutes.

   

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“Given such an underdeveloped state of the law, the officers in this case

cannot have been ‘expected to predict the future course of constitutional law.’”

Matheny v. Cnty. of Allegheny, No. 09-1070 2010 WL 1007859 (W.D. Pa. March 16,

2010) at *6 (quoting Procunier v. Navarette, 434 U.S. 555, 562 (1978)). When

arresting Respondent, Officer Lockte followed the law in his jurisdiction using the

only information available: the current, uncontested laws in the City of New

London.

Among the United States Courts of Appeals, there is no unified decision

about whether a constitutional right to videotape an officer exists. The Third and

Fourth Circuits have held there is no clearly established right under the First

Amendment to videotape police officers exercising their duties in a public place.

Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) (holding a defendant’s

constitutional rights were not violated when he was charged under Pennsylvania’s

wiretapping act for videotaping an officer during a traffic stop); Szymecki v. Houck,

353 F. App’x 852 (4th Cir. 2009) (holding there is no clearly established right to

record police activity on public property under the First Amendment); see also

Matheny, 2010 WL 1007859, Gravolet v. Tassin, No. 08-3646, 2009 WL 1565864

(E.D. La. June 2, 2009). However, other Circuits have held the right to videotape

officers is clearly established under the First Amendment. See Glik v. Cunniffe, 655

F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000);

Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).

   

16

At the time of Respondent’s arrest, this was an issue of first impression in the

Fourteenth Circuit. Instead of focusing on the circuit split across other jurisdictions

to evaluate the merits of the Constitutional argument, it barely addressed whether

the right to videotape an officer was clearly established. (R. at 17.) Due to the

circuit split at the time of Respondent’s arrest and the lack of precedent in the

Fourteenth Circuit, no reasonable person, or police officer, would have assumed the

arrest violated the First Amendment.

Therefore, because a First Amendment right to videotape a police officer was

not clearly established at the time of Respondent’s arrest, this Court should reverse

the Fourteenth Circuit’s holding and find that Officer Lockte is entitled to qualified

immunity.

B. Civil liability for police officers is precluded by exceptions to First Amendment protections, even when the right to videotape a police officer in public in the course of his duties is clearly established under the First Amendment at the time of Petitioner’ alleged violation.

If the right to videotape an officer in the course of his duties under the First

Amendment was clearly established at the time of Respondent’s arrest, exceptions

to First Amendment protection preclude the assertion of Respondent’s rights. First,

the First Amendment does not protect Respondent’s conduct because Respondent

intentionally interfered with a government employee or agent in his official duties

when he videotaped Officer Phelps. Second, the safety of a police officer and the

public at large takes precedence over Respondent’s First Amendment rights.

   

17

1. Even if the right to videotape a police officer in public in the course of his duties is clearly established under the First Amendment, the First Amendment does not protect Respondent’s conduct when Respondent intentionally interferes with a police officer in the police officer’s official duty.

Even if Respondent’s right to videotape Officer Phelps under the First

Amendment was clearly established, Respondent intended to interfere with the

official duties of Officer Phelps and other New London police officers under 36

C.F.R. § 2.32(a)(1).2 Actions that violate this federal regulation are exempted from

First Amendment protection. Respondent’s actions fall under this exception to the

First Amendment, rendering his speech unprotected.

a. Respondent violates 36 C.F.R. § 2.32(a)(1) when Respondent intentionally interferes with a government employee or agent in an official duty.

Respondent “interfere[ed] with a government employee or agent in an official

duty” when he videotaped Officer Phelps, and, therefore, is not protected by the

First Amendment. 36 C.F.R. § 2.32(a)(1) (1987). Officer Phelps was: (1) a police

officer, an agent, and an employee of the City of New London; and (2) acting in his

official capacity when he was undercover. Respondent videotaped Officer Phelps

because Respondent (3) intended to interfere with police activity by revealing to the

protesters that Officer Phelps was an undercover police officer.

Courts used a three-part test to determine whether 36 C.F.R. § 2.32(a)(1)

(“the intentional interference statute”) was violated, therefore preempting First

                                                                                                                         2 36 C.F.R. § 2.32 (a)(1) states: “(a) The following are prohibited: (1) Interference. Threatening,

resisting, intimidating, or intentionally interfering with a government employee or agent engaged in an official duty, or on account of the performance of an official duty.” 36 C.F.R. § 2.32 (1987).

   

18

Amendment protection. United State v. Twinn, 369 F.Supp. 2d 721, 724 (E.D. Va.

2005) In United States v. Twinn, the United States District Court for the Eastern

District of Virginia held a defendant’s statements meant to reveal undercover

officers conducting an investigation in a national park to others in the park were

not protected speech under the First Amendment. 369 F.Supp. 2d 721. First, the

court determined the undercover police officers were employees or agents of the

government. Id. at 723. Second, the court determined the police officer was in the

park to conduct an investigation, an official duty of police officers. Id. Third, the

court determined the defendant “intended to obstruct [the officer’s] police work”

because the defendant “indicated his intent to interfere” by telling another officer he

would tell everyone in the park the undercover officer was a policeman. Id. at 723-4.

Therefore, because the three-part test was satisfied, the court determined the

arrestee’s rights were not violated.

Under 36 C.F.R. § 2.32(a)(1), Respondent similarly “intentionally

interfere[ed] with a government employee or agent in an official duty” and his

actions are therefore not protected under the First Amendment.

First, Officer Phelps is a police officer, a government employee, and an agent

of the City of New London. See e.g. Illinois v. Rodriguez, 497 U.S. 177, 185 (1990)

(holding a police officer is an agent of the government). Officer Lockte identifies

Officer Phelps as a police officer who was placed undercover to enable the New

London Police Department to learn about the protests. (R. at 4.) Further, the United

States District Court for the District of New London confirmed “Officer Phelps was

   

19

an undercover officer at the time he was videotaped,” (R. at 10.), and the United

States Court of Appeals for the Fourteenth Circuit affirmed that “Officer Phelps

was carrying out his law enforcement duties.” (R. at 16.) Officer Phelps’ service to

the City of New London as a government employee and agent in his capacity as a

police officer is not contested in the record.

Second, Officer Phelps was acting in his official capacity as a government

employee and agent when he was undercover at the protests and when Respondent

videotaped him. When an undercover police officer is in a public location pursuing

complaints or conducting an investigation, he is acting in his official capacity as a

representative of the government. Twinn, 369 F.Supp. 2d at 723.

There is no confusion in the record as to the nature of Officer Phelps’ activity

at the time he was videotaped at the Hide Park protests. The Fourteenth Circuit

found “Officer Phelps was carrying out his law enforcement duties in plain view,”

while undercover. (R. at 16.) The goal of the operation was to monitor the activities

of the protesters to allow the City of New London Police Department to react

accordingly. (R. at 10.) Officer Phelps was, in fact, carrying out his duties in the

course of his employment and agency with the City of New London, serving in an

undercover capacity, when Respondent videotaped him with the intent to reveal his

identity to the protesters.

Third, Respondent intended to obstruct Officer Phelps’ police work by outing

him as an undercover police officer by publishing the video online. When a

defendant makes a statement indicating intent to interfere, the defendant is guilty

   

20

of violating 3 C.F.R. § 2.32(a)(1), and does not have First Amendment protection.

Twinn, 369 F.Supp. 2d at 723-4. For example, the United States Supreme Court has

held a public statement indicating intent to expose CIA operatives was sufficient to

convict a defendant. Haig v. Agee, 453 U.S. 280 (1981). However, if a defendant does

not make a statement regarding his purpose for identifying an undercover agent, he

cannot be convicted. DiPino v. Davis, 354 Md. 18 (Md. Ct. App. 1999).

In this case, Respondent possessed the requisite intent to show he meant to

interfere with Officer Phelps’ official activities. Only after Respondent told Officer

Lockte that Officer Phelps “is one of you,” meaning that Respondent knew Officer

Phelps was a police officer, did Officer Lockte arrest Respondent. (R. at 5.)

Additionally, Respondent was about to post a video of Officer Phelps, undercover,

speaking with another police officer, accompanied by the question, “Why is Phelps

so chummy with the NLPD?” (R. at 6.)

Even if Officer Phelps were a police officer, the question Respondent posed

indicates intent to interfere, and to incite others to interfere, with Officer Phelps’

activities. However, Officer Phelps was a police officer, an employee, and an agent

of the City of New London, and was conducting his official duties. Respondent

indicated he knew Officer Phelps’ true identity, and clearly displayed his intent to

interfere with Officer Phelps’ investigation when Respondent spoke with Officer

Lockte.

   

21

All three Twinn elements are fulfilled in the present case. Respondent

intentionally interfered with a government employee or agent in an official duty,

and his actions are therefore not protected by the First Amendment.

b. The First Amendment does not protect Respondent’s conduct when he intentionally obstructs government operations under 36 C.F.R. § 2.32(a)(1).

Respondent’s actions, which intentionally obstructed a government operation

under 36 C.F.R. § 2.32(a)(1), fulfill an exception to the First Amendment and are

therefore not protected by the First Amendment to the Constitution of the United

States.

Generally, there is a First Amendment right to gather information about

what public officials do on public property. City of Oak Creek v. Ah King, 436

N.W.2d 285 (Wis. 1989). “The First Amendment protects the right to gather

information about what public officials do on public property, and specifically, a

right to record matters of public interest,” subject to reasonable time, manner and

place restrictions. Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000);

see also Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).

Also, members of the general public hold the same rights as media in

documenting matters of public interest. United States v. Hastings, 695 F.2d 1278,

1281 (11th Cir. 1983). In fact, “[t]he First Amendment generally grants the press no

right to information about a trial superior to that of the general public.” Nixon v.

Warne Commc’ns, Inc., 435 U.S. 589, 609 (1978); see also Branzburg v. Hayes, 408

U.S. 665 (1972).

   

22

However, although a plaintiff has the right to videotape police activities, he

must also show an officer’s “actions violated [his] right[s]” when contesting an

arrest. Smith, 212 F.3d at 1333. A defendant does not violate the right of a citizen

videotaping a matter of public interest in a public place when a time, place, or

manner restriction or another restriction limits First Amendment protection.

In Haig v. Agee, a former Central Intelligence Agency (CIA) operative stated

his intent to reveal the identities of undercover and classified CIA employees. 453

U.S. 280 (1981). Because actions associated with the former operative’s clearly

stated intention to “disrupt the intelligence operations of the United States” had

interfered with official operations, caused damage, and threatened potential future

damage, this Court determined the operative’s speech was “clearly not protected by

the constitution” or First Amendment. Id. Further, “[t]he mere fact that [the

operative] is also engaged in criticism of the Government does not render his

conduct beyond the reach of the law.” Id. at 308-9.

Even seemingly concrete protections under the First Amendment may be

preempted by public security and government interests. For example, “peaceful

picketing may be prohibited when it interferes with the operation of vital

governmental facilities or when it is directed toward an illegal purpose,” such as

picketing near a courthouse or demonstrations on the grounds of a jail. Carey v.

Brown, 447 U.S. 455, 470 (1980); see also Adderley v. Florida, 385 U.S. 39 (1966);

Teamsters v. Vogt, Inc., 354 U.S. 284 (1957).

   

23

Although the freedom to videotape police activities in public places is

seemingly concrete, it is subject to exceptions. In this case, Respondent’s intent to

reveal the identity of Officer Phelps – similar to the goal of the former CIA

operative in Haig – amounted to interference with the New London Police

Department’s official activities of monitoring the protest and ensuring safety of

protesters. As in Haig, Respondent intended to interfere with official operation, and

his actions threatened potential future damage. Therefore, Respondent’s

interference is not protected by the First Amendment.

2. Even if the right to videotape a police officer in public in the course of his duties is clearly established under the First Amendment, the First Amendment does not protect Respondent’s conduct when Respondent’s actions threaten the safety of the police officer and of the public.

Even if Respondent’s right to videotape Officer Phelps under the First

Amendment was clearly established, Respondent intended to incite violence and

threatened the safety of the public and of Officer Phelps when he videotaped Officer

Phelps, intending to reveal the officer’s undercover identity to the protesters. The

First Amendment does not protect actions that incite violence or interfere with

officers’ or the public’s safety. Therefore, Respondent’s actions fall under an

exception to the First Amendment, rendering his speech unprotected.

This Court asserted that “[t]here are certain well-defined and narrowly

limited classes of speech . . . [t]hese include the lewd and obscene, the profane, the

libelous, and the insulting or ‘fighting’ words—those which by their very utterance

inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New

   

24

Hampshire, 315 U.S. 568, 571-72 (1942). Any speech that incites violence tends to

contribute little social value when contrasted with the result of the speech:

disturbing peace and threatening the public. Id.

Further, “a person may not record public police activity where ‘the person

engages in actions that jeopardize the safety of the officer, the suspect, or others in

the vicinity, violate the law, or incite others to violate the law.’” (R. at 10.) Letter

dated May 14, 2012 from Jonathan M. Smith, Chief, Special Litigation Section, U.S.

Department of Justice Civil Rights Division, to Mark H. Grimes, Baltimore Police

Department Office of Legal Affairs, and Mary E. Borja, Wiley Reinn LLP, at 6

(available at http://justice.gov/crt/abut/spl/documents/Sharp_ltr_5-14-12.pdf).

Moreover, 36 C.F.R. § 2.32 (a)(2) prohibits conduct that “[v]iolat[es] the

lawful order of a government employee or agent authorized to maintain order and

control public access and movement during . . . law enforcement actions, and

emergency operations that involve a threat to public safety . . . or other activities

where the control of public movement and activities is necessary to maintain order

and public safety.” 36 C.F.R. § 2.32 (1987).

When a public protest threatened to escalate into violence, this Court has

“expressly sanctioned police action that ended the demonstration and arrested the

speaker, who defied police orders to cease and desist.” Jones v. Parmley, 465 F.3d

46, 56-57 (2d Cir. 2006) (citing Feiner v. New York, 340 U.S. 315, 317–21 (1951)).

This Court determined in that situation, the police “were not powerless to prevent a

   

25

breach of the peace in light of the imminence of greater disorder that the situation

created.” Id. (internal citations omitted).

Ultimately, this Court has held “criminal conduct,” like incitement to

violence, endangering the public safety, or violating police efforts to maintain public

safety “cannot have shelter in the First Amendment.” Louisiana ex rel. Gremillion v.

Nat’l Ass’n for the Advancement of Colored People, 366 U.S. 293, 297 (1961). If

incitement or violence is threatened, “police may arrest an offender even for a ‘very

minor criminal offense’” as long as the arrest is supported by probable cause.

Harrison v. Deane, 426 F. App'x 175, 181 (4th Cir. 2011) (quoting Figg v. Schroeder,

312 F.3d 625, 636 (4th Cir. 2002)).

In this case, Respondent incited violence, threatened to disturb the public

safety, and violated police efforts to maintain safety. He is, therefore, not protected

by the First Amendment.

Respondent intended to publicly publish a video of Officer Phelps,

undercover, speaking with another police officer, accompanied by a statement

suggesting a leader of a protest movement is an undercover police officer. Further,

Respondent refused to cooperate with Officer Lockte when asked to stop filming.

Respondent’s subsequent statements⎯for example, “he is one of you” ⎯indicate

Respondent intended to disrupt the investigation of the protest, and spur the

protesters to violence by spreading the fact that Officer Phelps was an undercover

police officer and not, in fact, a protestor as they had believed.

   

26

In today’s age where nearly every American has a smart phone with Internet

access, information uploaded to websites like “99percent.com” can reach almost

unlimited audiences at the push of a button. The video Respondent intended to post

posed an imminent, severe threat to a legitimate police operation. Further, it

endangered the safety of Officer Phelps, whose undercover role was as the leader of

the protests. If Respondent had not been arrested for violating the wiretapping law,

the video, in draft form ready to be posted, would have been uploaded to

“99percent.com” and released to the protesters specifically and Internet at large.

Though no violence had occurred in the Hide Park protests at the time of the arrest,

similar protests in surrounding areas had turned violent. The release of a video

insinuating the leader of the movement was actually a police officer created a high

likelihood violence at the hands of the protesters was imminent; the danger to the

public was clear and present.

“[G]overnment officials may stop or disperse public demonstrations or

protests where ‘clear and present danger of riot, disorder, interference with traffic

upon the public streets, or other immediate threat to public safety, peace, or order,

appears.’” Parmley, 465 F.3d 46, 56-57 (2d Cir. 2006) (quoting Cantwell v.

Connecticut, 310 U.S. 296, 308 (1940)). Therefore, Officer Lockte’s arrest of

Respondent was justified, based on the belief that Respondent posed a danger to the

safety of Officer Phelps and intended to incite violence in the community.

Respondent created an imminent threat to the peace in New London through

his intention to reveal the Officer Phelps’ identity. Actions that threaten police

   

27

officers or the public are exempted from constitutional protection. Therefore,

Respondent’s arrest, based on the clear and present danger he initiated, was

justified as an exception to the First Amendment. Respondent’s First Amendment

rights were not violated.

This Court should reverse the United States Court of Appeals for the

Fourteenth Circuit’s decision that Officer Lockte violated Respondent’s First

Amendment rights when he arrested Respondent for videotaping Officer Lockte. If

this Court determines Respondent’s First Amendment right was violated, it should

hold that Officer Lockte is entitled to qualified immunity because that right was not

clearly established at the time of the alleged violation. Qualified immunity applies

to Officer Lockte because: (1) the law under which Respondent was arrested did not

violate a clearly established right to record officers; and (2) exceptions to First

Amendment protection, including Respondent’s intentional interference in a police

operation and ensuring the public safety, apply to Respondent’s conduct.

II. QUALIFIED IMMUNITY APPLIES TO A POLICE OFFICER WHO SEARCHES A CELL PHONE INCIDENT TO ARREST WHEN THE SEARCH IS REASONABLE IN TIME, PLACE AND SCOPE OR WHEN EXIGENT CIRCUMSTANCES APPLY BECAUSE THE RIGHT TO BE FREE FROM A WARRANTLESS SEARCHES OF A CELL PHONE INCIDENT TO ARREST IS NOT A PROTECTED RIGHT UNDER THE FOURTH AMENDMENT, AND IF IT IS A PROTECTED RIGHT, THE RIGHT WAS NOT CLEARLY ESTABLISHED AT THE TIME OF PETITIONER’S ALLEGED VIOLATION.

The Fourth Amendment protects against unreasonable warrantless searches;

however, there are certain carefully drawn exceptions to this protection that are

permitted in limited circumstances. Chimel v. California, 395 U.S. 752, 762 (1969),

abrogated by Davis v. United States, 131 S.Ct. 2419 (2011). One longstanding

   

28

exception to the warrant requirement is a search incident to arrest. See Weeks v.

United States, 232 U.S. 383, 392 (1914). The search incident to arrest exception

permits an officer to search the person of the arrestee or to search the area of the

arrestee’s immediate control when the arrest is lawful. Chimel, 395 U.S. at 763.

This exception to the warrant requirement is justified by the critical need to protect

an officer’s safety and to prevent any concealment or destruction of evidence. Id.

A lawful arrest justifies a search incident to arrest because the need to

preserve evidence and protect the safety of police officers is “implicated in arrest

situations.” Arizona v. Gant, 556 U.S. 332, 338 (2009). Additionally, the formal

search does not need to precede the arrest when the officer has probable cause for

arrest and when the formal arrest is “followed quickly on the heels” of the search.

Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). This longstanding exception to the

warrant requirement has been continuously affirmed over the past fifty years

because it necessarily balances the interests of Fourth Amendment protections with

the promotion of legitimate government interests. Texas v. Brown, 460 U.S. 730,

739 (1983).

While this Court has announced the limits to the searches incident to arrest

exception to the warrant requirement, generally, lower courts struggle to define this

exception in the context of cell phones. State v. Smith, 920 N.E.2d 949 (Ohio 2009).

The few United States Courts of Appeals to address the issue have found a search of

a cell phone incident to arrest is or would be valid, but on very differing grounds.

United States v. Murphy, 552 F.3d 405 (4th Cir. 2009) (finding the need for evidence

   

29

preservation justified warrantless retrieval of cell phone call records); United States

v. Finley, 477 F.3d 250 (5th Cir. 2007) (holding a cell phone is analogous to a closed

container on an arrestee’s person, which is therefore searchable); United States v.

Flores-Lopez, 670 F.3d 803 (7th Cir. 2012) (finding that reading the address book in

a cell phone is akin to leafing through a pocket address book, which would be a

lawful search incident to arrest).

Additionally, district and state courts have engaged in muddled analyses of

this Court’s “search incident to arrest” decisions and developed a litany of

explanations that support a lawful search of a cell phone incident to arrest. Some

courts found searches incident to arrest justified when the searches are reasonable

with regards to the time, place and scope of the search. United States v. Gomez, 807

F.Supp. 2d 1134 (S.D. Fla. 2011); see also United States v. Santillan, 571 F.Supp. 2d

1093 (D. Ariz. 2008). Other courts define a cell phone as a container and hold that a

search incident to arrest is valid because a cell phone is no different than any other

type of container found on a defendant’s person. United States v. Wurie, 612 F.Supp.

2d 104 (D. Mass. 2009).

A few courts have attempted to distinguish whether the cell phone was on the

arrestee’s person or within the arrestee’s immediate control at the time of the

search. See People v. Diaz, 244 P.3d 501 (Cal. 2011). Finally, lower courts have also

utilized this Court’s recent decision in Arizona v. Gant, 556 U.S. 332 (2009), to find

the search of a cell phone is justified as a search incident to arrest when an officer

believes there is a reasonable probability information stored on a cell phone is

   

30

evidence of the arrestee’s crime. United States v. Quintana, 594 F.Supp. 2d 1291

(M.D. Fla. 2009).

Regardless of the characterization of the cell phone, almost all courts agree a

lawful search incident to arrest hinges on the two justifications this Court

announced in Chimel: (1) the critical need to ensure officer safety; and (2)

preventing the destruction of evidence. Chimel, 395 U.S. at 763. The search incident

to arrest exception applies when “‘the exigencies of the situation’ make the needs of

law enforcement so compelling that [a] warrantless search is objectively reasonable

under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385 (1978), overruled

on other grounds by Mapp v. Ohio, 437 U.S. 385 (1961).

Accordingly, this Court should find that searches of cell phones incident to

arrest are a lawful exception to the Fourth Amendment warrant requirement. This

Court’s well-established exception to the warrant requirement for searches incident

to arrest includes searches of cell phones when exigent circumstances concerning

officer and community safety exist or when vital evidence may be destroyed.

Further, an officer should be permitted to search a cell phone incident to arrest

when he has reason to believe evidence of the arresting crime is on the phone,

pursuant to this Court’s recent decision in Gant, which balanced a heightened

privacy interest with the immediate need to search for evidence. 556 U.S. 332.

Police officers must be able to reasonably search an arrestee’s cell phone

incident to arrest when exigent circumstances exist or when there is evidence of the

arresting crime on the arrestee’s cell phone. This lawful search balances a person’s

   

31

privacy interests in the cell phone and the state’s interests in protecting the safety

of the police officers and the community and in need to preserve vital evidence.

Thus, searching a cell phone incident to arrest does not violate any Fourth

Amendment right, and instead is justified by the search incident to arrest exception

to the warrant requirement.

A. Civil liabilty for police officers is precluded when an officer lawfully searches a cell phone incident to arrest under the Fourth Amendment because exceptions to the warrant requirement apply.

Police officers are justified in searching the area within the immediate

control of the arrestee because of need to ensure officer safety and the need to

thwart the destruction of evidence. United States v. Chadwick, 433 U.S. 1 (1977),

abrogated by California v. Acevedo, 500 U.S. 565 (1991). Furthermore, a search

incident to arrest is a reasonable when it is limited in time, place and scope. Gomez,

807 F.Supp. 2d 1134.

1. A police officer is lawfully permitted to search a cell phone incident to arrest under the Fourth Amendment exception to the warrant requirement when the search is limited in time, place, and scope.

This Court should hold a cell phone searched incident to arrest is a lawful

search under Fourth Amendment exceptions to the warrant requirement

established by this Court, when the search is limited in time, place, and scope.

A search incident to arrest generally does not require additional justification

beyond the lawful arrest, but the lack of additional justification does not create an

unqualified authority to search. United States v. Robinson, 414 U.S. 218 (1973). A

   

32

search must be reasonably limited to “the area in which the arrestee may grab a

weapon or destroy or conceal evidence in order to ensure officer safety and preserve

evidence.” Chimel, 395 U.S. at 763.

Searches executed incident to an arrest are justified on the basis of the

critical need to search for anything that could harm the officer and the need to

prevent the destruction of evidence. Id. A police officer must act quickly and search

an arrestee’s person or the area in the immediate control of the arrestee without

securing a warrant to secure the safety of officers and prevent the arrestee from

destroying evidence. Id.

A search of the area of the arrestee’s immediate control is justified by the

officer’s need to prevent the destruction of evidence or to search for things that may

be used to assault an officer. Id. at 764. In Chadwick, the officers seized a locked

footlocker from the arrestee and subsequently searched the footlocker at the Federal

Building without a warrant ninety minutes after the arrest. United States v.

Chadwick, 433 U.S. 1, 15 (1977). This Court found the footlocker was in the

exclusive control of the officers because “there was no risk that whatever was

contained in the footlocker trunk would be removed by the defendants or their

associates.” Id. at 5. This Court reasoned that because the footlocker was in

possession of the officers at the Federal Building, it was too far from the area of

immediate control and thus not a search incident to arrest of the area within the

immediate control of the arrestee. Id. at 15.

   

33

Here, the cell phone was in the area of Respondent’s immediate control.

Although the officer had the phone in his hands, Respondent was unsecured and

was well within reaching distance of the phone. (R. at 2.) Unlike Chadwick, where

this Court found the search could not be classified as a search of the area within the

arrestee’s immediate control incident to arrest because the arrestee was nowhere

near the footlocker when officers searched the footlocker, here, Respondent stood

next to Officer Lockte when Officer Lockte searched the phone and could have easily

gained access to the phone simply by reaching out. (R. at 2, 6.) Respondent could

have easily reached over, grabbed the phone and destroyed the evidence or posted

the video to the Internet, endangering the lives of Officer Phelps and numerous

New London citizens. The cell phone was not in the exclusive control of Officer

Lockte because the risk that Respondent could have removed, destroyed, or

uploaded the video to the website, thereby creating a grave danger for Officer

Phelps and the protesters still existed. Therefore, because the cell phone had not

been reduced to the exclusive control of the officer, the search of the cell phone was

a search of the area within Respondent’s immediate control.

A search of a cell phone incident to arrest that is within in the area of the

arrestee’s immediate control is reasonable when the search is limited in the time

and place of the arrest. Santillan, 571 F. Supp. 2d 1093; see also Gomez, 807

F.Supp. 2d at 1145 (finding that because an officer’s search of the defendant’s cell

phone call log history was performed by the officers promptly at the scene of the

arrest, the search was “temporally and spatially connected with the arrest”). In

   

34

Santillan, the court found the search of the defendant’s cell phone occurred “mere

minutes” after the officers arrested the defendant pursuant to a high-speed chase.

Santillan, 571 F.Supp. 2d at 1102. The court reasoned that because officers

“conducted [the search] as a part of a ‘continuous series of events closely connected

in time to the arrest,’” the search was permissible as a search incident to arrest. Id.

at 1103.

Here, the search of Respondent’s cell phone was a permissible search incident

to arrest because the search was reasonably limited in time and place. Officer

Lockte approached Respondent after observing him videotape Officer Phelps, and

he immediately established that Respondent did not have permission to record the

communication. (R. at 5.) Officer Lockte searched the cell phone contemporaneous

to Respondent’s arrest for violating the wiretapping statute. (R. at 4-6.) As in

Santillan, where the court found the search was reasonable and contemporaneous

to the arrest because it was “closely connected to in time to the arrest,” here, Officer

Lockte’s search of Respondent’s cell phone was also closely connected in time to the

arrest. Santillan, 571 F.Supp. 2d at 1103. The entire transaction likely took less

than five minutes and occurred at the exact place at which Officer Lockte made the

arrest. (R. at 2, 5.) Therefore, because the search took place at the moment and of

the location of the arrest, it was limited in time and place. Because it was limited in

time and place, the search of the cell phone was a reasonable search incident to

arrest.

   

35

Additionally, the search of a cell phone incident to arrest is reasonable when

the scope of the search is limited. Gomez, 807 F.Supp. 2d 1134; see also United

States v. De La Paz, 43 F.Supp. 2d 370, 376 (S.D.N.Y 1999) (finding that answering

an arrestee’s cell phone once without a warrant was a reasonable search incident to

arrest, but that continuing to answer the phone without obtaining a warrant would

not have been a reasonable search). In Gomez, the officer arrested the defendant

and immediately searched the defendant’s cell phone for the call log history of the

preceding twenty-four to forty-eight hours. Gomez, 807 F.Supp. 2d at 1149. The

United States District Court for the Southern District of Florida reasoned that

because the search was limited in scope to the recent call log, the search was a

reasonable search incident to arrest. Id.

Here, the search was a reasonable search incident to arrest because the scope

of the search was limited to the open video application of Respondent’s cell phone.

(R. at 6.) Officer Lockte stated that he located the video posting in draft form on the

open video application on Respondent’s cell phone. (R. at 6.) Officer Lockte did not

search through the cell phone to hunt for any other information; he merely viewed

the open application and immediately located the video draft. (R. at 6.) As in Gomez,

where the court held a “short, limited perusal of only recent calls” was reasonable,

here, Officer Lockte’s short, limited perusal of only the open video application was

reasonable. Gomez, 807 F.Supp. 2d at 1149. Therefore, Officer Lockte’s search

incident to arrest of Respondent’s cell phone was reasonable because the scope of

the search was limited.

   

36

Furthermore, a cell phone search incident to arrest is permissible when it is

reasonable to believe evidence of the arresting crime may be found on the cell

phone. Hawkins v. State, 723 S.E.2d 924 (Ga. 2012). In Hawkins, the arresting

officer exchanged text messages with the defendant to arrange a drug sale. Id. at

925. The officer then observed the defendant entering information into her cell

phone and immediately received a text message from her. Id. The officer arrested

the defendant and searched the cell phone for the text messages they had just

exchanged. Id. The Supreme Court of Georgia found it was clear from the officer’s

observations that evidence of the text messages he had exchanged with the

defendant would be found in the defendant’s cell phone. Id. The court applied this

Court’s reasoning from Gant and held that when the scope of the cell phone search

is reasonably limited to evidence related to the arresting crime, the search is

reasonable as a search incident to arrest. Id. at 926; see also Smallwood v. State, 61

So.3d 448 (Fla. Dist. Ct. App. 2011) (finding because the officers did not have had

any reason to believe evidence of the arresting offense of possession of a firearm

would be found on the defendant’s cell phone, the search incident to arrest was not

valid).

Here, Officer Lockte had reason to believe there was evidence of the arresting

offense located within Respondent’s cell phone, so the search incident to arrest was

valid. (R. at 2, 4-6.) As in Hawkins, where the court found that because the officer

observed the defendant entering information into her phone, and the officer

searched for only those text messages incident to arrest, the search was lawful,

   

37

here, Officer Lockte’s search of the cell phone was lawful because he observed

Respondent videotaping Officer Phelps and subsequently searched only for that

video on the phone. (R. at 2, 4-6.) The search was limited to only evidence of the

arresting wiretapping offense and was reasonable.

Officer Lockte’s search of Respondent’s cell phone was a lawful search

incident to arrest governed by this Court’s exceptions to the Fourth Amendment

warrant requirement. The search occurred within the area of Respondent’s

immediate control; it was limited in time, place, and scope; and it was reasonable

for Officer Lockte to believe there was evidence of the wiretapping offense on the

cell phone.

A search that is reasonably limited to “the area in which the arrestee may

grab a weapon or destroy or conceal evidence in order to ensure officer safety and

preserve evidence” is a lawful search incident to arrest. Chimel, 395 U.S. at 763.

Accordingly, because Officer Lockte reasonably believed the video application would

show the video Respondent unlawfully recorded, Officer Lockte was justified in

searching for the evidence of the arresting crime. Additionally, because Officer

Lockte searched Respondent’s cell phone at the time and place of the arrest, and

because the search was limited in scope to only the open video application, the

search was a reasonable search incident to arrest.

   

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2. A police officer is lawfully permitted to search a cell phone incident to arrest when the exigent circumstances of officer safety or the preservation of evidence exist.

This Court should hold exigent circumstances justified the warrantless

search of Respondent’s cell phone incident to his arrest. (R. at 19.) Exigent

circumstances exist where a law enforcement officer reasonably believes a search is

“necessary to prevent physical harm to the officers or other persons, the destruction

of relevant evidence, . . . or some other consequence improperly frustrating

legitimate law enforcement efforts.” United States v. Brooks, 367 F.3d 1128, 1135

(9th Cir. 2004); see also Robinson, 414 U.S. at 224 (justifying a search incident to

arrest because “[w]hen a custodial arrest is made, there is always some danger that

the person arrested may seek to use a weapon”). This Court stated, the Fourth

Amendment “does not require police officers to delay in the course of an

investigation if to do so would gravely endanger their lives or the lives of others.”

Warden v. Hayden, 387 U.S. 294, 298-99 (1967).

Threats to officer and community safety constitute exigent circumstances

that justify the warrantless search of a cell phone incident to a lawful arrest. See

Santillan, 571 F.Supp. 2d at 1103; United States v. Flores-Lopez, 670 F.3d 803, 806

(7th Cir. 2012) (finding that “[i]n some cases, a search of a cell phone … is justified

by police officers’ reasonable concerns for their safety”). In United States v. Lottie,

where officers found an arrestee with counter-surveillance at the scene of a drug

transaction, the United States District Court for the Northern District of Indiana

concluded “[c]oncern for officer safety and for the public” justified an immediate

   

39

warrantless search of the cell phone incident to arrest to ascertain the

“participation of … other unknown individuals” who may have posed a threat. No.

3:07cr51RM, 2008 WL 150046 at *2-3 (9th Cir. Jan. 14, 2004).

Here, any delay of Officer Lockte’s search of Respondent’s cell phone would

gravely endanger the safety of Officer Phelps, other New London police officers,

Hide Park protesters, and other community members. (R. at 6.) Officer Lockte, a

former Marine, knew the Hide Park protesters were increasingly agitated and well-

connected through the “99percent.com” website, to which Respondent was uploading

the video, and that similar protests elsewhere had become violent. (R. at 1, 4-5.)

Accordingly, potential danger to Officer Phelps, other New London officers, and the

Hide Park protesters necessitated Officer Lockte’s search of Respondent’s cell

phone. (R. at 5-6.)

The uncertainty about whether Respondent posted the video, an action which

could incite violence from the Hide Park protesters, parallels the uncertainty

present in Lottie, where it was unclear whether armed cohorts of the arrestee were

present justified the search of the defendant’s cell phone because of safety concerns.

The search here is likewise justified. In both situations, the threat to the officers

and the community required the officers to access the source of vital information

capable of confirming or dismissing safety concerns. Thus, as in Lottie, where the

search of the defendant’s cell phone was justified by the need to determine whether

other armed participants were in the area, here, the immediate search of

   

40

Respondent’s cell phone was justified to ascertain whether the video had been

posted to “99percent.com.”

In addition to the concern for safety, the need to preserve a cell phone’s

contents constitutes an exigent circumstance because of the volatile nature of the

information on the cell phone. United States v. Parada, 289 F.Supp. 2d 1291, 1303-4

(D. Kansas 2003) (holding that because a cell phone has a “limited memory,” the

officer was authorized to search the cell phone without a warrant “as a matter of

exigency … in order to prevent the destruction of this evidence”); see also United

States v. Mercado-Nava, 486 F.Supp. 2d 1271, 1278 (D. Kansas 2007) (recognizing

the exigency in preserving evidence that could be lost “due to the dynamic nature of

the information stored on and deleted from cell phones”); United States v. Zamora,

No. 1:05 CR 250 WSD, 2006 WL 418390 at *4 (N.D. Ga. Feb. 23, 2006). Law

enforcement officers have a “manifest need” to preserve evidence stored on a cell

phone incident to arrest because the officers have no way to determine whether the

contents will be automatically deleted. United States v. Young, 278 F. App’x 242,

245-46 (4th Cir. 2008). While call logs and text messages may be retrieved from the

cell phone company, incriminating photos or videos stored locally on the cell phone’s

memory are susceptible to permanent deletion because the cell phone company does

not have access to that information, creating exigency to preserve any photo or

video evidence the phone may contain. See Smith, 920 N.E.2d at 956.

The development of cell phone applications capable of remotely wiping a cell

phone’s contents and notifying the arrestee’s family, friends, and attorney of the

   

41

arrest underscores the exigency in preserving the cell phone’s contents as evidence.

United States v. Flores-Lopez, 670 F.3d 803, 807-08 (7th Cir. 2012); see also e.g.,

Tera Kelly, ‘I’m Getting Arrested’ App Inspired By Occupy Wall Street Protests, Nov.

19, 2011, http://www.huffingtonpost.com/2011/10/17/im-getting-arrested-app-

occupy-wall-street_n_1016704.html. The “I’m Getting Arrested” application,

available on all smart phones and specifically developed for protesters to use during

the recent “Occupy Wall Street” protests, allows users send a custom text message

to the arrestee’s contacts at the push of a button to inform them of the arrest. Id.

Those notified by an arrestee through an application like “I’m Getting Arrested” can

wipe the contents of the cell phone immediately from a remote location before law

enforcement can obtain a search warrant, frustrating legitimate law enforcement

efforts. Id.; Flores-Lopez, 670 F.3d at 807-08.

Officer Lockte had a manifest need to search Respondent’s cell phone incident

to his arrest to preserve evidence Respondent violated New London’s wiretapping

law. Unlike a text message or call log, videos stored on a cell phone’s memory

cannot be obtained from a cell phone company if deleted or remotely wiped from the

cell phone’s memory. Officer Lockte did not know if Respondent had a remote

wiping application or the “I’m Getting Arrested” application, made specifically for

protesters like Respondent. Any of Respondent’s family members or friends may

have the ability to delete or remotely wipe the contents of the phone, including the

video. Office Lockte had no way to know if the video would automatically delete

itself, or if incoming calls or text messages could force the deletion of the video due

   

42

to the cell phone’s finite memory. If such deletion occurred, the key piece of evidence

justifying Respondent’s arrest for violating New London’s wiretapping law would be

permanently lost.

Where courts hold the warrantless search of a cell phone incident to arrest

unlawful, no exigent circumstances exist to justify the search. See Smith, 920

N.E.2d at 955-56 (holding the state failed to present evidence of exigent

circumstances); United States v. Wall, No. 08-60016-CR, 2008 WL 5381412 *3 (S.D.

Fla. Dec. 23, 2008); United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 *1

(N.D. Cal. May 23, 2007). No exigent circumstances exist where the type of

information sought, such as call logs, can be retrieved from the cell phone company.

See Smith, 920 N.E.2d at 955-56.

Further, no exigent circumstances exist where search occurs away from the

scene of the arrest at a later point in time. Park, 2007 WL 1521573 *1. In Park, law

enforcement officers searched the defendant’s cell phone at the police station

roughly 90 minutes after the defendant’s arrest. Id. at *1. The United States

District Court for the Northern District of California determined the officers who

conducted the warrantless search of the defendant’s cell phone did not do so to

ensure officer safety or preserve evidence and could have obtained a search

warrant, and therefore no exigent circumstances existed. Id. at *8-9.

No exigent circumstances exist where there is no threat to officer or

community safety. Wall, 2008 WL 5381412 at *3; see also Smith, 920 N.E.2d at 955

(stating that the warrantless search of the defendant’s cell phone for call records

   

43

“was not necessary to ensure officer safety”). In Wall, the United States District

Court for the Southern District of Florida held the content of a text message related

to a drug transaction, the subject of the officers’ search, “present[ed] no danger of

physical harm to the arresting officers or others.” 2008 WL 5381412 at *3. Thus, the

court concluded the justification permitting the search incident to arrest was absent

and invalidated the search. Id.

Officer Lockte searched Respondent’s cell phone and at time and scene of the

arrest, when exigent circumstances existed. Unlike the search in Park, here Officer

Lockte searched the cell at the time and place of arrest when there was a risk the

evidence may be lost. Moreover, unlike the content of the text message in Wall or

the call records in Smith, the content of Respondent’s phone⎯the video revealing

Officer Phelps was an undercover police officer⎯did present danger of physical

harm to Officer Lockte, Officer Phelps, other New London police officers, and the

protesters in Hide Park. There was a high likelihood violence would ensue if

Respondent posted the video to the website and Officer Lockte needed to conduct

the search incident to arrest as a matter of exigency. (R. at 5-6.) Thus, the search of

Respondent’s cell phone was necessary to ensure officer and community safety.

B. Civil liability for police officers is precluded when an officer lawfully searches a cell phone incident to arrest because the law was not clearly established under the Fourth Amendment at the time of Petitioner’s alleged violation.

This Court should hold Respondent’s constitutional right to be free from a

warrantless search of his cell phone incident to arrest was not firmly established at

the time of his arrest. An arrestee’s right to be free from a warrantless search of his

   

44

or her cell phone incident to arrest is a clearly established right under the Fourth

Amendment. Newhard v. Borders, 649 F.Supp. 2d 440, 448 (W.D. Va. 2009); see also

Schlossberg v. Solesbee, 844 F.Supp. 2d 1165, 1170-71 (D. Oregon 2012) (holding the

law regarding the warrantless search of a camera incident to arrest, which the court

found indistinguishable from a cell phone, is unsettled). In Newhard, the United

States District Court for the Western District of Virginia, in finding law

enforcement officers entitled to qualified immunity for the warrantless search of the

plaintiff’s cell phone incident to his arrest, opined that “[i]n the Internet age, the

extent to which the Fourth Amendment provides protection for the contents of

electronic communications (such as images stored in a cell phone) in a search

incident to arrest … is an open question” without a “clear rule” from this Court.

Newhard, 649 F.Supp. 2d at 448.

The lack of a clear rule has forced lower courts to navigate Supreme Court

precedent to develop diverging rules about the constitutionality of the search of a

cell phone incident to a lawful arrest. See e.g. Finley, 477 F.3d at 259; but cf. Smith,

920 N.E.2d at 954. While some courts view cell phones as closed containers that

may be searched incident to arrest without justification, other courts have expressly

rejected the container analogy based on the character of the cell phone. Id. Still

other courts ignore the character of the cell phone altogether, concluding, “there is

no legal basis for holding that the scope of a permissible warrantless search …

depends on the nature or character” of the item being searched. Diaz, 244 P.3d at

507.

   

45

Courts find a warrantless search of a cell phone incident to arrest pass

constitutional muster under various theories. Some courts hold a warrantless

search of a cell phone incident to arrest is constitutional by analogizing the cell

phone to a closed container on the person that may be searched incident to arrest.

See Finley, 477 F.3d at 259-60; Murphy, 552 F.3d at 410-12; Hawkins, 723 S.E.2d at

925 (finding a cell phone is “roughly analogous” to a container); Deans, 549 F.Supp.

2d at 1094; Wurie, 612 F.Supp. 2d at 110. Other courts have focused on the

similarity of the information contained in a cell phone and other personal

belongings subject to lawful warrantless searches incident to arrest. Gomez, 807

F.Supp. 2d at 1146. Law enforcement officers may search many other “highly

personal items,” including wallets and purses, found on the arrestee’s person or in

the arrestee’s immediate control incident to the arrestee’s lawful arrest such that

searching a cell phone is no different from searching any other personal item found

on the person or within the arrestee’s immediate control. Id.

Other courts that determine that a warrantless search of a cell phone

incident to arrest violates the Fourth Amendment focus instead on the character of

the modern cell phone in finding a higher expectation of privacy. Smith, 920 N.E.2d

at 954; see also Park, 2007 WL 1521573. These courts hold a cell phone has greater

privacy interests due to its technological capabilities and storage capacity for

personal information. Id.

No intelligible standard governing the warrantless search of a cell phone

incident to an arrest exists. Newhard, 649 F.Supp. 2d at 448. The conflict between

   

46

courts in establishing a clear rule on the constitutionality of searching a cell phone

incident to arrest is evidence that the right to be free from such searches is not

clearly established.

Courts finding a warrantless search of an arrestee’s cell phone incident to his

arrest violates the Fourth Amendment acknowledge the presence of exigent

circumstances would justify such a search. Wall, 2008 WL 5381412 at *4 (noting the

state did not meet its burden of proving the existence of exigency to justify the

warrantless search); Smith, 920 N.E.2d at 956 (“We hold that the warrantless

search of data within a cell phone seized incident to a lawful arrest is prohibited by

the Fourth Amendment when the search is unnecessary for the safety of law-

enforcement officers and there are no exigent circumstances”). This Court has held

that where law enforcement officers reasonably believe exigent circumstances are

present, they are entitled to qualified immunity. Anderson v. Creighton, 483 U.S.

635, 641 (1987).

Officer Lockte is entitled to qualified immunity because: (1) the facts alleged

by Respondent do not establish a violation of a constitutional right; and (2) the law

regarding the constitutionality of searching a cell phone incident to a lawful arrest

was not clearly established at the time Officer Lockte searched Respondent’s cell

phone. Officer Lockte did not violate Respondent’s Fourth Amendment rights

because it is reasonable for law enforcement officers to conduct a warrantless search

a cell phone incident to an arrest when the search is limited in scope and complies

with the temporal and spatial requirements. It is also reasonable to search a cell

   

47

phone incident to a lawful arrest when it is required to ensure the safety of law

enforcement officers and the community and to preserve evidence.

First, the circumstances mandated Officer Lockte conduct a warrantless

search of Respondent’s cell phone incident to his arrest to ensure the safety of

Officer Phelps, other members of the New London police force and the protesters at

Hide Park. Additionally, Officer Lockte’s search of Respondent’s cell phone was

reasonable⎯it related to the crime on which the arrest was based, occurred at the

time and place of the arrest, and was limited in scope. The search of Respondent’s

cell phone was limited to the video application that was still open on Respondent’s

cell phone; Officer Lockte did not “fish” or “rummage” through the cell phone. (R. at

6.) Once Officer Lockte found the subject of his search, the search ended.

Second, should this Court find that Officer Lockte’s warrantless search of

Respondent’s cell phone violated Respondent’s Fourth Amendment right to be free

from a warrantless search incident to his arrest, this Court should find that the

right was not “clearly established” at the time of the search. At the time of the

search, this Court had not yet ruled on the constitutionality of a warrantless search

of a cell phone, nor had the Fourteenth Circuit, and other courts have inconsistently

dealt with the issue. As a result of the inconsistent approaches taken by courts,

Officer Lockte had no way to know how his jurisdiction would treat a cell phone, as

a container or otherwise, or whether his jurisdiction would even consider the

characteristics of the cell phone at all. Officer Lockte acted reasonably in light of the

uncertainty.

   

48

Further, Officer Lockte reasonably believed exigent circumstances were

present. The exigency of the situation⎯the need to ensure officer and community

safety and preserve the video of Officer Phelps as evidence⎯required immediate

action on the part of Officer Lockte. For the aforementioned reasons, Officer Lockte

should not be liable for the search of Respondent’s cell phone incident to his arrest.

For these reasons, this Court should hold that Officer Lockte is entitled to

qualified immunity.

CONCLUSION

This Court should reverse the Fourteenth Circuit’s holding and find that

Respondent’s arrest and the search of Respondent’s cell phone incident to arrest did

not violate Respondent’s constitutional rights. However, if the Respondent’s rights

were violated, Officer Lockte is entitled to qualified immunity because the rights

were not clearly established.