Cell phones are increasingly becoming a primary component of any encounter between police and civilians. Along with that comes the warrantless seizure of cell phones. After all, they hold great evidentiary value from a law enforcement perspective. Neither the Fourth Circuit, nor the U.S. Supreme Court, has yet taken a position on whether there is a First Amendment (and therefore Fourth Amendment) right to videotape police officers. This isn’t exactly the same issue, since it mostly deals with seizing and searching cell phones incident to an arrest. But, the issue is the same when the person filming is arrested, at which point their phone will be seized.
When the phone is seized can the officers go through the phone without first obtaining a warrant? There is a very well written post on this topic from the Alabama Civil Rights and Civil Liberties Law Review blog, written by Lacy Triplett. She opined that:
The Court may take the approach of the majority of circuit courts and find that a cell phone is a container, which can be searched incident to arrest so long as the search is limited in scope and contemporaneous to the arrest. Or, the Court may take the approach of the First Circuit in Wurieand find that the privacy interests in an individual’s cell phone greatly outweigh the government’s need to immediately search a cell phone without first securing a warrant.
In any event, you know that right now across the country, police officers go through the cell phones of arrestees, where they find valuable information such as, every text message conversation the person had in the last year – or even their email history. They also contain photos, videos – you name it. Those practices, and law enforcement training, is going to depend on the outcome of Wurie.