Publication Date
10-1-2025
Abstract
Cell phones are free speech machines. They have been particularly important in recent social movements because they allow an individual to record protests or police activity and share such experiences with a world-wide audience on social media. In these circumstances, the Fourth Amendment’s protection of an individual’s unfettered property right to possess their cell phone overlaps with their First Amendment right to engage in these core free speech activities. Both rights are put to the test when there is conflict with police in connection with the recording. My survey of recent case law provides numerous examples where an individual’s cell phone was seized without a warrant in connection with the individual’s recording of a protest or police activity. Several seizures relied on claimed exigent circumstances, while many others involved seizures incident to an arrest, with the government continuing to hold the individual’s cell phone in custody for months (and in some cases more than a year) even though the individual was released without charges. These cases reveal three problematic trends facing courts when evaluating the reasonableness of such seizures under the Fourth Amendment. First, police often mistakenly apply common experience and assumptions from exigent circumstances in other criminal contexts to seize cell phones in protest and police recording situations. Worse, in several instances, police seize the cell phone of the recorder out of apparent retaliation (or agitation) and attempt to use the exigent circumstances exception to later defend against suit. Second, courts disagree on whether police need independent probable cause to seize a cell phone from a recorder that is arrested at a protest or event involving police activity. Though police may have arguable probable cause to detain the recorder at these events, they often lack probable cause to believe that the recorder’s cell phone contains evidence of criminal activity. Third, there is a widespread circuit split on whether the Fourth Amendment requires po-lice to justify an extended seizure of personal property. For many courts, the Fourth Amendment only applies to the initial taking of personal property and provides no further protection regarding the duration of that seizure. Extended seizures of cell phones can have particularly harmful consequences, as the individual is deprived for months (or longer) of both their important possessory interest in their phone and their ability to engage in core free speech activities. This includes an extended delay in their ability to share the recording of the protest or police activity. This Article examines the case law demonstrating each of these problematic trends and provides an approach for future courts to apply universal Fourth Amendment principles that fairly protect both the Fourth and First Amendment rights of recorders.
First Page
97
Recommended Citation
Zachary R. Cormier, Constitutional Dead Zones: Problematic Trends for Seizures of Cell Phones Connected to the Recording of Protests and Police Activity, 103 Denv. L. Rev. 97 (2025).