Feb 032012
 February 3, 2012  Posted by  Court, Featured News, U.S.

FourthAmendment.com points to a recent news story out of Oregon that searching a videocam without a warrant, even incident to an arrest, is a Fourth Amendment violation.  Bryan Denson reports:

The rules of engagement became clearer in Eugene’s U.S. District Court last week, when a civil jury determined that a city police sergeant violated an environmental activist’s constitutional protections against illegal search and seizure during a 2009 leafletting campaign outside a bank.

The eight-person panel determined that Sgt. Bill Solesbee arrested environmentalist Josh Schlossberg without probable cause and used excessive force. But it was Solesbee’s next act that sent legal minds across Oregon into hyperdrive: He seized the environmentalist’s video camera without a warrant.

That’s the electronic equivalent of police walking off with several file cabinets of private papers without benefit of a judge’s signature, said Lauren Regan, Schlossberg’s lawyer.

U.S. Magistrate Judge Thomas Coffin ruled in a pretrial hearing in the Eugene case that Solesbee violated Schlossberg’s Fourth Amendment rights by searching the contents of his camera without a warrant. That ruling marked the first time that a federal court in Oregon weighed in on warrantless seizures of digital devices.

Read more in The Oregonian.

While this is a  great decision for privacy advocates, I note the court reached a different conclusion than other federal courts confronted with similar issues about whether devices are “containers” that can be searched without a warrant if incident to an arrest.   In his opinion, Magistrate Judge Coffin explains:

I find that warrantless searches of such devices are not reasonable incident to a valid arrest absent a showing that the search was necessary to prevent the destruction of evidence, to ensure officer safety, or that other exigent circumstances exist.3 I further find that it is impractical to distinguish between electronic devices–between a laptop and a traditional cell phone or a smart phone and a camera, before an officer decides whether to proceed with a search of the electronic device incident to arrest. A rule requiring officers to distinguish between electronic devices is impractical. It would require officers to learn and memorize the capabilities of constantly changing electronic devices. A primary goal in search and seizure law has been to provide law enforcement with clear standards to follow. In sum because an electronic device like a camera has a high expectation of privacy in its contents, an officer may not review the contents as a search incident to arrest. Instead, the officer must obtain a warrant unless exigent circumstances exist. Donald, 335 at 455-56 (“Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law.” )

Accordingly, I find that Solesbee violated the Fourth Amendment when he viewed the contents of plaintiff’s camera without first obtaining a warrant.

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