D.Ore.: Cell phones shouldn’t be subject to search incident, but law unclear for § 1983 liability; but arrest for videotaping violated Fourth Amendment

Plaintiff was recording an officer on a “personal electronic device,” and the officer and another took him down. “Solesbee charged plaintiff with unlawful intercepting of communication and resisting arrest. Plaintiff was handcuffed and placed in a police cruiser. While standing at the police cruiser, Solesbee viewed the contents of plaintiff’s camera without getting a warrant.” Viewing the video without a warrant violated the Fourth Amendment as a matter of law because of lack of exigency, and the plaintiff’s § 1983 claim depends on the facts of the arrest, which is disputed for summary judgment purposes. If it was valid, the officer gets qualified immunity; if not, the officer gets judgment against him–cell phones should not be subject to search incident, but the law is not clear. Schlossberg v. Solesbee, 2012 U.S. Dist. LEXIS 5492 (D. Ore. January 18, 2012):

I find the reasoning in Smith [State v. Smith, 920 N.E. 2d 949 (Ohio 2009)] and Park [United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2007)] persuasive. Courts which have likened electronic devices such as cell phones to closed containers fail to consider both the Supreme Court’s definition of “container” and the large volume of information capable of being stored on an electronic device. In New York v. Belton, the Supreme Court stated that “container” means “any object capable of holding another object.” Belton, 453 U.S. 454, 460 (1981). Consideration of an electronic device as a “container” is problematic. Electronic devices do not store physical objects which are in plain view once the containers are opened. Moreover, the storage capability of an electronic device is not limited by physical size as a container is. In order to carry the same amount of personal information contained in many of today’s electronic devices in a container, a citizen would have to travel with one or more large suitcases, if not file cabinets.

Cases following the reasoning set forth in Finley and other cases allowing warrantless searches of electronic devices incident to arrest set forth a new rule: any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer. See e.g., Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 27 (2008); Jana L. Knott, Note, Is There an App for That? Reexamining the Doctrine of Search Incident to Lawful Arrest in the Context of Cell Phones, 35 Okla. City U.L. Rev. 445, 445-47 (2010). Newhard v. Borders illustrates this issue. Newhard, 649 F.Supp.2d 440, 444 (W.D. Va 2009). In that case, Nathan Newhard was arrested for driving while intoxicated. Newhard, 649 F.Supp at 447-49. In the course of a routine search incident to arrest, the arresting officer retrieved Newhard’s cell phone from Newhard’s pocket, conducted a warrantless search of the photos contents and viewed multiple photos of Newhard and his girlfriend nude and in “sexually compromising positions.” Id. The officer showed Newhard’s private images (which were wholly unrelated to his drunk driving arrest) to another officer. Id. Subsequently, at the stationhouse, several more officers and stationhouse employees viewed the photos on the seized phone, notifying others that the photos were available for viewing enjoyment. Id.

[Cops just hate to be videotaped, and they will arrest people doing it, even though it clearly is not a crime.]