Thursday, January 19, 2012

Court finds camera not a closed container, search incident to arrest was unconstitutional

An Oregon federal court has found that a search incident to arrest violated the Fourth Amendment because exigent circumstances did not exist. Schlossberg v. Solesbee, 2012 WL 113746 (D. Or. 2012). The plaintiff argued in a Section 1983 claim that his rights were violated by his arresting officer when the officer searched his camera.

Closed Containers
First, the court evaluated whether a camera is a closed container. If you are unfamiliar with the debate, this often comes up with cell phones. If the phone is considered a closed container, it can be searched incident to lawful arrest if found on the arrestee's person (United States v. Finley, 477 F.3d 250 (5th Cir. 2007), applying closed container principles established in Robinson, 44 U.S. 218 (1973)). In United States v. Park, 2007 WL 1521573 (N.D. Cal. 2007), the court determined that electronic devices should be distinguished because of the large amount of information they carry, and they are not "part of the person." The Ohio Supreme Court, likewise, has determined that cell phones are not closed containers and are subject to a higher level of privacy due to the information they carry. State v. Smith, 920 N.E.2d 949 (Ohio 2009). For a more in-depth discussion of these issues, see Professor Susan Brenner's posts here and here.

The court ultimately agreed with Smith and Park, finding that cell phones and cameras should not be considered "containers." The court wrote that cases like Finley create a troubling 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."

Exigency Exception
Further, "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." The officer had suggested concern that the camera's battery would die created an exigency, but the court found that argument unpersuasive.

Qualified Immunity
Because of the search of the camera violated the Fourth Amendment, the officer was liable for damages unless he was protected by qualified immunity. The court held that a jury should determine whether the arrest was lawful - if it was, the officer is entitled to qualified immunity.

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