Docket No IN THE SUPREME COURT OF THE UNITED STATES. BRYAN LOCKTE, Petitioner, MICHAEL FRANKLIN, Respondent.

Transcription

1 Team No. 803 Docket No IN THE SUPREME COURT OF THE UNITED STATES BRYAN LOCKTE, Petitioner, v. MICHAEL FRANKLIN, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR PETITIONER Team No. 803 Counsel for Petitioner ORAL ARGUMENT REQUESTED

2 QUESTIONS PRESENTED FOR REVIEW 1) Does the First Amendment protect the recording of undercover police officers during the course of their undercover assignments where the act of recording the police activity has the potential to hinder and obstruct legitimate law enforcement objectives? If so, was that right clearly established at the time of Franklin s arrest? 2) Does the Fourth Amendment prohibit the search of Franklin s cell phone discovered on his person, where the search was contemporaneous to his arrest and the cell phone contained evidence of the crime of arrest? If so, was that right clearly established at the time of Franklin s arrest? i

3 TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW... i TABLE OF AUTHORITIES... iv OPINIONS AND ORDERS BELOW... x RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS... xi STATEMENT OF THE CASE... 1 I. Statement of the Facts... 1 II. Course of Proceedings and Disposition in the Courts Below... 3 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 9 I. Officer Lockte is entitled to receive qualified immunity because he did not violate Franklin s First Amendment rights; or alternatively, these rights were not clearly established at the time of his arrest... 9 A. There is no First Amendment right to record law enforcement officers during the course of their official duties There is no generally recognized right to interfere with and hinder police activity by recording law enforcement officials Even if this Court finds a protected right to record police conduct, that right does not apply to undercover law enforcement officers because of the unique and vital role these officers play in law enforcement B. Even if this Court finds a valid First Amendment right to record an undercover police officer during the course of his or her undercover assignments, that right is not clearly established ii

4 II. Officer Lockte should receive qualified immunity because he did not violate Franklin s Fourth Amendment rights; or alternatively, they were not clearly established at the time of his arrest A. Officer Lockte did not violate Franklin s Fourth Amendment rights when he searched Franklin s cell phone at the time of his arrest Officer Lockte conducted a valid search incident to arrest when he placed Franklin under lawful arrest and then searched the cell phone immediately associated with his person a. A consistent theme developed throughout this Court s Fourth Amendment jurisprudence is the character of the searched item does not affect the validity of the search b. The type and quantity of information stored by cell phones does not justify creating a separate rule for searches incident to arrest Officer Lockte s search of the cell phone was also valid if this Court expands its holding in Gant outside the vehicle context If this Court excludes cell phones from searches incident to arrest, exigent circumstances justified Officer Lockte s search B. Assuming, arguendo, this Court determines the search of Franklin s cell phone violated his Fourth Amendment rights, Officer Lockte is still entitled to qualified immunity because the right was not clearly established at the time of the search CONCLUSION iii

5 TABLE OF AUTHORITIES United States Supreme Court Cases Anderson v. Creighton, 483 U.S. 635 (1987)... 17, 18, 38 Arizona v. Gant, 556 U.S. 332 (2009)... passim Arkansas v. Sanders, 442 U.S. 753 (1979) Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) Chimel v. California, 395 U.S. 752 (1969)... 25, 35 Colten v. Kentucky, 407 U.S. 104 (1972)... passim Davis v. Scherer, 468 U.S. 183 (1984) Elder v. Holloway, 510 U.S. 510 (1994)... 9 Harlow v. Fitzgerald, 457 U.S. 800 (1982)... 9 Hunter v. Bryant, 502 U.S. 224 (1991)...passim Lewis v. United States, 385 U.S. 206 (1966) Malley v. Briggs, 475 U.S. 335 (1986) Michigan v. Tyler, 436 U.S. 499 (1978) iv

6 Minnesota v. Olson, 495 U.S. 91 (1990) New York v. Belton, 453 U.S. 454 (1981)... 31, 33 Pearson v. Callahan, 555 U.S. 223 (2009)...9, 17, 24 Preston v. United States, 376 U.S. 364 (1964) Saucier v. Katz, 533 U.S. 194 (2001)... passim Schmerber v. California, 384 U.S. 757 (1966) Thornton v. United States, 541 U.S. 615 (2004)... 31, 34 United States v. Chadwick, 433 U.S. 1 (1977)... 28, 29 United States v. Edwards, 415 U.S. 800 (1974)... 28, 32 United States v. Jimenez Recio, 537 U.S. 270 (2003) United States v. Lanier, 520 U.S. 259 (1997) United States v. Robinson, 414 U.S. 218 (1973)... passim United States v. Santana, 427 U.S. 38 (1976) Ward v. Rock Against Racism, 491 U.S. 781 (1989)... 11, 13 Warden v. Hayden, 387 U.S. 294 (1967) v

7 Wilson v. Layne, 526 U.S. 603 (1999)... passim United States Circuit Court Cases ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012) Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir. 1998) Blake v. Wright, 179 F.3d 1003 (6th Cir. 1999) Brady v. Fort Bend County, 58 F.3d 173 (5th Cir. 1995) Carswell v. Borough of Homestead, 381 F.3d 235 (3d Cir. 2004)... 9 Donovan v. City of Milwaukee, 17 F.3d 944 (7th Cir. 1994) El Dia, Inc. v. Rossello, 165 F.3d 106 (1st Cir. 1999) Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)... 15, 19 Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)... 16, 20 Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005) Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821 (11th Cir. 1997) Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010)... 11, 13, 19 Norfleet v. Ark. Dep t of Human Servs., 989 F.2d 289 (8th Cir. 1993) vi

8 Osolinski v. Kane, 92 F.3d 934 (9th Cir. 1996) Silvan W. v. Briggs, 309 F. App x 216 (10th Cir. 2009) (unpublished) Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000)... 15, 19 Swanson v. Powers, 937 F.2d 965 (4th Cir. 1991) United States v. Finley, 477 F.3d 250 (5th Cir. 2007) United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012)... 26, 30 United States v. Murphy, 552 F.3d 405 (4th Cir. 2009)...27 United States v. Richardson, 764 F.2d 1514 (11th Cir. 1985) Varrone v. Bilotti, 123 F.3d 75 (2d Cir. 1997) Wilson v. Layne, 141 F.3d 111 (4th Cir. 1998) United States District Court Cases Matheny v. Cnty. of Allegheny Pa., No , 2010 WL (W.D. Pa. Mar. 16, 2010) United States v. Brookes, CRIM , 2005 WL (D.V.I. 2005) United States v. Espinoza, JAR, 2007 WL (D. Kan. Apr. 3, 2007) United States v. Gomez, 807 F. Supp. 2d 1134 (S.D. Fla. 2011) vii

9 United States v. McCray, CR , 2009 WL (S.D. Ga. Jan. 5, 2009) United States v. McGhee, 8:09CR31, 2009 WL (D. Neb. July 21, 2009) United States v. Park, CR SI, 2007 WL (N.D. Cal. May 23, 2007) United States v. Valdez, No. 06-CR-336, 2008 WL (E.D. Wis. 2008) United States v. Wall, CR, 2008 WL (S.D. Fla. Dec. 22, 2008), aff d, 343 F. App x 564 (11th Cir. 2009) United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009)... 27, 34 State Court Cases Fawdry v. State, 70 So. 3d 626 (Fla. Dist. Ct. App. 2011) Gracie v. State, 92 So. 3d 806 (Ala. Crim. App. 2011), reh g denied (Jan. 27, 2012), cert. denied (Apr. 6, 2012) Hawkins v. State, 723 S.E.2d 924 (Ga. 2012) State v. Ates, 46 A.3d 550 (N.J. Super. Ct. App. Div. 2012) State v. Lambardo, 738 N.E.2d 653 (Ind. 2000) State v. Nix, 237 P.3d 842 (Or. Ct. App. 2010) State v. Roach, 452 N.W.2d 262 (Neb. 1990) viii

10 State v. Smith, 920 N.E.2d 949 (Ohio 2009)... 31, 39 Secondary Sources Carol M. Bast, What s Bugging You? Inconsistencies and Irrationalities of the Law of Eavesdropping, 47 DePaul L. Rev. 837 (1998) Jamie Lendino, How to Remotely Disable Your Lost or Stolen Phone, PCMAG.COM, 38 Gary T. Marx, Undercover Police Surveillance in America 14 (1988) Eunice Park, Traffic Ticket Reasonable, Cell Phone Search Not: Applying the Search-Incident-to-Arrest Exception to the Cell Phone As "Hybrid", 60 Drake L. Rev. 429 (2012) ix

11 OPINIONS AND ORDERS BELOW The decision of the United States District Court for the District of New London, Franklin v. Lockte, Docket No (D. New London, Mar. 15, 2012), granting Officer Lockte s summary judgment on both counts appears in the record as R. 7. The order of the United States Court of Appeals for the Fourteenth Circuit, Franklin v. Lockte, Docket No (14th Cir. 2012), reversing the order of the district court is found in the record as R. 14. x

12 RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS Congress shall make no law... abridging the freedom of speech, or of the press... U.S. Const. amend I The right of the people to be secure in their persons... and effects, against unreasonable searches and seizures, shall not be violated... U.S. Const. amend. IV A person commits wiretapping when he knowingly and intentionally intercepts another person s electronic or oral communications, unless he does so with the consent of all parties to such communication. To intercept means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any electronic or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication. City of New London Wiretapping Statute. R xi

13 STATEMENT OF THE CASE I. Statement of the Facts This matter arises out of a protest by hundreds of people in the city of New London s Hide Park beginning September 1, R. 2. The two years leading up to the protest were tumultuous in New London. Id. The city faced an economic downturn that led to the highest unemployment in 50 years and an increasing socioeconomic divide in the city. Id. To voice their displeasure with these events, hundreds of protesters joined together to occupy Hide Park. Id. Similar protests were also occurring in other cities and were becoming increasingly violent. R. 5. The New London Police Department ( NLPD ) decided to place Officer Matthew Phelps undercover amongst the protesters. R. 4. This allowed Officer Phelps to provide information on the protesters plans to the Department so it could react accordingly if they decided to expand the protest outside Hide Park. R. 2, 4. Officer Phelps, while undercover, successfully infiltrated the protesters leadership. R. 4. At one point, he was able to convince the other leaders to remain in Hide Park, rather than dispersing throughout the city. Id. Petitioner, Officer Bryan Lockte, was responsible for the safety of Officer Phelps because he was a former Marine and had extensive law enforcement experience. Id. Several weeks into the occupation, Respondent Michael Franklin, a protester, became suspicious that Phelps was an undercover police officer. R. 2. He began to videotape Officer Phelps. Id. Officer Lockte saw Franklin videotaping Officer Phelps on September 28, R. 4. Although not unusual for Officer 1

14 Phelps to be videotaped, this instance was different because Franklin was recording him while he was talking to a uniformed officer. R. 5. Because of this, Officer Lockte immediately became concerned that Officer Phelps cover was blown. Id. Throughout the protests, a website called 99percent.com had become very popular among the protesters as a primary way to share information, including videos. R. 4. If Franklin s video were posted to the site insinuating that Officer Phelps was an undercover officer, Officer Lockte believed this could jeopardize Phelps safety. R. 5. In addition, Officer Lockte became concerned the peaceful relationship between the protesters and the police could change, heightening the risk of violence in New London, similar to protests in other cities. Id. Officer Lockte decided to approach Franklin and determine whether he had consent from Officer Phelps and the other officer to videotape their conversation. Id. If Franklin did not have consent from both of them, he would be violating New London s wiretapping statute. R The statute provides: Id. A person commits wiretapping when he knowingly and intentionally intercepts another person s electronic or oral communications, unless he does so with the consent of all parties to such communication. To intercept means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any electronic or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication. 2

15 Officer Lockte asked Franklin whether he had consent, to which Franklin responded, What do you think? He is in a public place and people have been videotaping him for weeks. Why would I need permission? R. 5. Since Franklin did not appear to have consent, Officer Lockte asked him to cease recording but did not intend to arrest him. Id. However, Franklin then said, Wait, a minute, he is one of you. Id. Officer Lockte quickly grabbed Franklin s phone to prevent him from posting the video to the 99percent.com website, knowing it only takes a few seconds to post content online with today s technology. Id. When asked whether he had posted the video, Franklin replied, Maybe I did, maybe I didn t. What s it to you? Id. If the video had been uploaded, the NLPD would have little time to protect Officer Phelps and maintain order among the protestors. Id. Officer Lockte determined the quickest way to determine whether Franklin had uploaded the video was to access the video content of his cell phone. R. 5. Upon searching the still-open video application on Franklin s phone, Officer Lockte found a posting of the video in draft form that had not yet been added to 99percent.com message boards. R. 6. The draft posting had an appended message asking the question, Why is Phelps so chummy with the NLPD? Id. II. Course of Proceedings and Disposition in the Courts Below Although Franklin was arrested for violating New London s wiretapping statute, the City of New London s District Attorney decided not to prosecute Franklin for the violation. R. 3. Even so, Franklin sued Officer Lockte in the 3

16 United States District Court of New London on November 3, 2011 claiming that 1) his First Amendment rights were violated when Officer Lockte arrested him for videotaping a police officer during the course of his duties, and 2) his Fourth Amendment rights were violated when Officer Lockte searched the contents of his cell phone. Id. Subsequently, Officer Lockte moved for summary judgment on Franklin s First and Fourth Amendment claims on the ground of qualified immunity. R. 8. District Judge Shpigel granted Officer Lockte s motion for summary judgment on March 15, R. 7. On appeal, the Fourteenth Circuit Court of Appeals reversed the District Court s decision to cloak Officer Lockte with qualified immunity and remanded the case for further proceedings consistent with its opinion. R. 22. This Court granted Officer Lockte s petition for writ of certiorari. R

17 SUMMARY OF THE ARGUMENT Officer Lockte is entitled to qualified immunity on Franklin s First Amendment claim. First, this Court has explicitly held there is no First Amendment right to observe or record police officers where that observation or recording interferes with or hinders the law enforcement objectives. Second, even if this Court recognizes First Amendment protection for such conduct, that right was far from clearly established. Accordingly, Officer Lockte had no reason to believe that his conduct was prohibited. First Amendment rights, while important, are not absolute. In the context of observing and recording police officers, this Court has held that there is no constitutional right to engage in such activity where it has the potential to threaten legitimate law enforcement objectives. There are few other situations in which police efforts are more threatened than when the true identity of an undercover officer or informant is revealed. Here, Officer Phelps was acting in an undercover capacity, serving a vital role to the NLPD when Franklin sought to disclose Officer Phelps affiliation with the police. By taking and distributing the video (in violation of a valid and unchallenged statute), Franklin interfered with, hampered and obstructed the efforts of the NLPD. He placed the safety of Officer Phelps, other police officers, protesters and the general public in jeopardy, as the distribution of his video would have had violent consequences. Accordingly, the First Amendment protections did not extend far enough to cover Franklin s conduct. 5

18 Even if this Court finds that Franklin s conduct falls within the protections of the First Amendment, Officer Lockte is still entitled to qualified immunity because these rights were not clearly established at the time of Franklin s arrest. There has never been a Supreme Court case, a Fourteenth Circuit case, or any consensus of persuasive authority that establishes a First Amendment right to record police in the course of their official duties. There is a circuit split as to whether there is even a general right to record police officers during the course of their public duties, and these cases do not even begin to address the right in the context of undercover officers. The divergence in case law of the circuits, combined with prior rulings of this Court, lend strong support to the conclusion that if any First Amendment right is recognized in this case, that right was not conclusively defined so as to apprise Officer Lockte that his conduct was impermissible. Moreover, there is nothing to suggest that the validity of the New London wiretapping statute had ever been challenged. Accordingly, Officer Lockte had no reason to doubt the constitutionality of his actions. Rather, he acted reasonably in arresting Franklin for violating the New London wiretapping statute. For these reasons, Officer Lockte should be granted qualified immunity on Franklin s First Amendment claim. Officer Lockte should also receive qualified immunity from Franklin s Fourth Amendment claim. First, Officer Lockte s warrantless search of Franklin s cell phone did not violate his Fourth Amendment rights because it was a valid search incident to arrest. In addition, exigent circumstances justified the search. 6

19 However, should this Court find Officer Lockte s search violated Franklin s rights, this right was not clearly established at the time of the search. Searches incident to arrest are a well-settled exception to the Fourth Amendment s warrant requirement. A lawful arrest provides the only justification required for an officer to search the arrestee s person and the area within the arrestee s immediate control. Courts consider effects found on an arrestee s person as immediately associated with the arrestee s person and searches incident to arrest provide the authority for police officers to open and inspect these effects. Furthermore, throughout this Court s Fourth Amendment jurisprudence a theme has consistently developed that the character of the seized item does not affect the validity of a search incident to arrest. The majority of federal and state courts have followed this guidance and have held that cell phones do not require a separate rule from other effects properly seized from an arrestee s person. In doing so, these courts have recognized the type and quantity of information stored by cell phones, but found that it does not justify creating a separate rule. Officer Lockte conducted a valid search after he lawfully arrested Franklin for violating New London s wiretapping statute. First, he seized the cell phone immediately associated with Franklin s person. Then, he conducted a limited search to determine whether Franklin had uploaded the recording of undercover officer Phelps, which could threaten the safety of Officer Phelps and other police officers. These facts demonstrate Officer Lockte conducted a valid search incident to arrest. 7

20 Alternatively, cell phones could receive additional protection by requiring warrantless searches of cell phones to be justified by a reasonable belief the cell phone contains evidence relevant to the crime of arrest. Here, Officer Lockte viewed Franklin recording Officer Phelps with his cell phone, in violation of the wiretapping statute. This supported his reasonable belief the cell phone contained evidence relevant to the crime of arrest and justified his limited search of the phone. Regardless, Officer Lockte s search was still valid because exigent circumstances existed. If the recording was uploaded, it could threaten Officer Phelps and other officers safety. Officer Lockte responded by conducting a limited search of the cell phone to ensure Franklin had not threatened the safety of the New London police force. However, should this Court find a Fourth Amendment violation, Officer Lockte is still entitled to qualified immunity because this right was not clearly established at the time of the search. First, neither this Court nor the Fourteenth Circuit has ever held cell phones are excluded from all warrantless searches. Second, although a minority of courts have held the Fourth Amendment provides more protection for cell phones, the majority of courts have disagreed. Therefore, Officer Lockte is entitled to qualified immunity because the unclear state of the law demonstrates any right is not clearly established. 8

21 ARGUMENT I. Officer Lockte is entitled to receive qualified immunity because he did not violate Franklin s First Amendment rights; or alternatively, these rights were not clearly established at the time of his arrest. Officer Lockte is entitled to qualified immunity on Franklin s First Amendment claim because there is no violation of a clearly established constitutional right. Qualified immunity is a long-standing principle of constitutional litigation that shields public officials from personal liability for actions performed in the exercise of their discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Government officials are entitled to qualified immunity unless (1) the facts that a plaintiff has alleged or shown make out a violation of a constitutional right; and (2) the right at issue was clearly established at the time of the defendant s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Saucier v. Katz, 533 U.S. 194, 201 (2001). The determination of whether a public official has qualified immunity from suit presents a question of law that must be resolved de novo on appeal. Elder v. Holloway, 510 U.S. 510, 516 (1994). The qualified immunity analysis requires exploration of the closely related issue of whether the officer made a reasonable mistake as to what the law requires. Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004). The Court explained, [t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police 9

22 conduct... [i]f the officer s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense. Saucier, 533 U.S. at 205. Officer Lockte is entitled to qualified immunity because Franklin cannot satisfy either of the required showings. First, Officer Lockte did not violate Franklin s First Amendment rights. First Amendment protections are not absolute and do not extend so far as to protect the recording of an undercover police officer during the course of carrying out his official duties. Second, even if this Court stretched the First Amendment to offer this type of protection, that right was far from clearly established at the time of Franklin s arrest. Moreover, Officer Lockte acted reasonably in arresting Franklin, as Officer Lockte was enforcing a valid New London law. Franklin bears burden of proof and failure to satisfy all elements requires the court to grant Officer Lockte the protections of qualified immunity. In this case, none of the elements are adequately presented. Accordingly, Officer Lockte is entitled to qualified immunity on Franklin s First Amendment claim. A. There is no First Amendment right to record law enforcement officers during the course of their official duties. The First Amendment rights to free speech and free press are not absolute and do not encapsulate the right to record police officers carrying out their official assignments. In fact, in a case surprisingly omitted from the lower courts analyses, this Court held that there is no right to observe police engaged in the performance of their duties. Colten v. Kentucky, 407 U.S. 104, 109 (1972). The State has a legitimate interest in ensuring its police force is able to carry out its duties free from possible interference or interruption from bystanders, even those claiming a 10

23 third-party interest in the police conduct. Id. But videotaping or photographing the police in the performance of their duties on public property may be a protected activity... More generally, photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection. Gilles v. Davis, 427 F.3d 197, 212 n.14 (3d Cir. 2005) (emphasis added); see also Matheny v. Cnty. of Allegheny Pa., No , 2010 WL , at *4 (W.D. Pa. Mar. 16, 2010) (adding even stronger emphasis to the same language). Any right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions, as long as they are justified without reference to the content of the regulated speech. Kelly v. Borough of Carlisle, 622 F. 3d 248, 262 (3d Cir. 2010) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Further, no case has addressed the First Amendment protections in the context of recording undercover officers. Therefore, Franklin did not have a First Amendment right to observe and record police activity when it interferes with the legitimate objectives of the police officers. Even if this Court finds such a right to exist, due to the unique role undercover police officers hold, that right does not extend to situations where undercover police officers are recorded during the course of his or her undercover assignments. 1. There is no generally recognized right to interfere with and hinder police activity by recording law enforcement officials. The previously cited cases lay the foundation for finding Officer Lockte did not violate Franklin s First Amendment rights because there is no constitutional right to record police activity. To the contrary, in Colten, this Court explicitly held 11

24 that there is no right to observe police in the conduct of their official duties where such observation hinders, interrupts or otherwise interferes with the officer s duty. Colten, 407 U.S. 104 (emphasis added). There, the defendant and numerous other citizens attended a political rally at an airport. Id. at 106. As the rally ended, the defendant proceeded to his car and left the airport with his friends, who were all travelling in six to ten cars. Id. The first car in the caravan was stopped for having expired plates. Id. The defendant and others pulled their cars to the side of the road, and while the officer was issuing a citation, the defendant attempted to engage the officer. Id. Police officers repeatedly told the defendant to move along and clear the road. Id. As a result of his noncompliance, the defendant was arrested for disorderly conduct. Id. at 107. He subsequently brought suit, alleging violation of his First Amendment rights. Id. at 108. In finding the defendant s arrest for disorderly conduct constitutional, this Court noted: Nor can we believe that Colten, although he was not trespassing or disobeying any traffic regulation himself, could not be required to move on. He had no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation at that time. The State has a legitimate interest in enforcing its traffic laws and its officers were entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction. Here the police had cause for apprehension that a roadside strip, crowded with persons and automobiles, might expose the entourage, passing motorists, and police to the risk of accident. Id. at 109 (emphasis added). Here, unlike Colten, Franklin was violating applicable law at the time of his arrest. The NLPD had a substantial interest in enforcing the state s law and 12

25 ensuring the safety of the protesters and general public. Franklin s actions were aimed at thwarting the Department s efforts in effectuating that interest. Accordingly, because Franklin s actions posed a potential safety concern and legitimate police objectives were threatened, there is no constitutional protection for Franklin s conduct. Case law in the circuits favors Officer Lockte s position as well. In Kelly, the Third Circuit noted that the First Amendment rights are not absolute. They are subject to reasonable time, place, and manner restrictions, as long as they are justified without reference to the content of the regulated speech,... are narrowly tailored to serve a significant governmental interest, and... leave open ample alternative channels for communication of the information. Kelly, 622 F.3d at 262 (citing Ward, 491 U.S. at 791). Upon application of these standards, it is clear that Officer Lockte s conduct was constitutionally permissible. First, Officer Lockte was not categorically restricting the observation of police officers. Moreover, he was not restricting all communication regarding the police officers. He was merely restricting the manner in which information was obtained about the officers. Second, Officer Lockte s restriction was necessary to serve a significant government interest. This Court recognized the uninhibited practice of official law enforcement duties to be a legitimate interest. See Colten, 407 U.S. at 109. Here, in addition to the interest recognized in Colten, the state has an interest in keeping the identity of undercover officers and informants intact and ensuring the protection of police officers, protestors and the general public. At best, Officer 13

26 Phelps blown cover hinders the legitimate law enforcement duties of the New London Police Department. At worst, revealing Officer Phelps true identity as a police officer threatens his safety, the safety of other officers, and the general public. Third, Officer Lockte s actions were narrowly tailored to serve those interests. There was no general prohibition against all taking and posting of protest videos, rather, Officer Lockte simply sought to prevent dissemination of an unauthorized video that could potentially place an undercover officer in peril. Officer Lockte sought to prohibit a video that could also lead to increased violence. Finally, ample alternative channels of expression were left open in the wake of Officer Lockte s conduct. For example, protesters were still free to post blog entries about their theories or engage in public discussion. Most recently, the Seventh Circuit embarked on a similar analysis during a constitutional challenge to a similar wiretapping statute. ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012). In Alvarez, the court found the statute to be unconstitutional when applied to specific facts of that case. Id. at 608. However, this case does not present a constitutional challenge to the New London wiretapping statute, as was the thrust of the ACLU s claim in Alvarez. Therefore, the portions of the Seventh Circuit s opinion relating to the constitutional challenge are inapplicable to the present case. However, the Seventh Circuit qualified its holding by noting that, Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety. Id. at 607. Here, Franklin s conduct had the immediate potential to obstruct and interfere 14

27 with law enforcement. Therefore, the First Amendment does not protect his conduct. 2. Even if this Court finds a protected right to record police conduct, that right does not apply to undercover law enforcement officers because of the unique and vital role these officers play in law enforcement. The instant case arises during the course of a political assembly, much like Colten. Here, as in Colten, the State has a legitimate interest in enforcing laws without interference. Undercover officers serve important law enforcement functions. The State had a legitimate (even substantial or significant) interest in keeping Phelps cover intact. This was necessary to maintain order and protect the citizens, including protestors. Moreover, disclosure of Officer Phelps affiliation with law enforcement would have also threatened the safety of Officer Phelps and the rest of the NLPD. Therefore, when compared with the interest in Colten, the interest in the present case is even more legitimate, and could easily be classified as substantial or significant. Other circuits have held that there is a general right to record conduct that is of public interest. Some circuits go so far as to hold that there is a right to record officers while they are carrying out their law enforcement duties so long as the recording does not interfere with the officer s duty. See Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) (holding that the plaintiff has a First Amendment right to record matters of public interest subject to reasonable time, place and manner restrictions, however, the two-page decision provides no analysis or reasoning); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) (finding a general 15

28 right to film matters of public interest); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (finding a constitutionally protected right to videotape police carrying out their duties in public). However, none of these cases address the rights of free speech and press in the context of recording undercover officers. In Fordyce, the Ninth Circuit recognized a broad and general right to record matters of public interest. The Smith and Glik courts recognized protection for the recording of uniformed, non-undercover police personnel. But there are greater safety concerns when dealing with undercover police officers, preventing comparison to uniformed police officers. Therefore, these cases are distinguishable from the present issue facing the Court. There is a greater need to protect the identity of undercover officers, because a blown cover greatly hampers law enforcement efforts. Undercover [law enforcement] means have become a prominent and sophisticated part of the arsenal of American law enforcement. Gary T. Marx, Undercover Police Surveillance in America 14 (1988). In addition, this Court has repeatedly noted that undercover police officers serve vital and necessary functions of law enforcement. Lewis v. United States, 385 U.S. 206, (1966); see also United States v. Jimenez Recio, 537 U.S. 270, 276 (2003). A fundamental premise of undercover police work necessarily entails the protection of the officer s true identity, for a blown cover thwarts the very purpose for employing these officers. While the circuits diverge on the general issue of whether the First Amendment extends protection to individuals recording the conduct of police 16

29 carrying out their public duties, no circuit has addressed the specific right in the context of undercover officers carrying out a covert operation. Divulgence of an undercover officer s true identity can have drastic and serious consequences. These consequences range from thwarting of the law enforcement measures to grave safety concerns. When an undercover officer s cover is blown, law enforcement experiences the exact hindrance, interruption and interference that Colten proscribed. Accordingly, there is no First Amendment right to record undercover police officers during the course of their surreptitious assignments. B. Even if this Court finds a valid First Amendment right to record an undercover police officer during the course of his or her undercover assignments, that right is not clearly established. Even if this Court recognizes this previously-unrecognized right and finds that Franklin has alleged a violation of his First Amendment rights, that right is far from being considered clearly established. A public official is entitled to qualified immunity if a right is not clearly established at the time of the violation. Anderson v. Creighton, 483 U.S. 635, 639 (1987). It can be difficult, if not impossible, to determine whether a right was clearly established without concurrently analyzing whether a constitutional right has been violated in the first place. Pearson, 555 U.S. at 236. Regardless, the contours of the right must be so conclusively drawn as to leave no doubt that the challenged action was unconstitutional. Swanson v. Powers, 937 F.2d 965, 969 (4th Cir. 1991); see also Anderson, 483 U.S. at 639. While the exact action in question is not required to have been previously held unlawful, the unlawfulness must be apparent in the 17

30 light of preexisting law. Wilson v. Layne, 526 U.S. 603, (1999). (emphasis added) (citing Anderson, 483 U.S. at 640; see also United States v. Lanier, 520 U.S. 259, 270 (1997)). A closely related inquiry is whether the officer s conduct was reasonable under the circumstances. Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam). This Court has not dealt with a case involving what, if any, constitutional protections are available when filming an undercover officer in the course of his or her official duties. Nor is circuit court case law helpful in delineating any clearly defined right. The Circuit Courts of Appeal differ in their approach to determining whether a right was clearly established. The Second, Seventh, Eighth, and Ninth Circuits use a broad approach by looking to the relevant case law throughout all of the Circuits. See Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997); Donovan v. City of Milwaukee, 17 F.3d 944, 952 (7th Cir. 1994); Norfleet v. Ark. Dep t of Human Servs., 989 F.2d 289, 291 (8th Cir. 1993); Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996). The Fourth, Fifth, and Eleventh Circuits take a narrow approach by looking only to this Court, their own precedents, or a State s highest court decisions when state law is at issue. See Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998); Brady v. Fort Bend County, 58 F.3d 173, 175 (5th Cir. 1995); Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 (11th Cir. 1997). In between these two approaches are the First, Sixth and Tenth Circuits who look primarily to their own precedents but also look to other Circuits decisions for a consensus. See El Dia, Inc. v. Rossello, 165 F.3d 106, 110 (1st Cir. 1999); Blake v. Wright, 179 F.3d 18

31 1003, 1007 (6th Cir. 1999); Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1257 (10th Cir. 1998). Under the narrow approach, Officer Lockte is entitled to qualified immunity. Neither the Supreme Court nor Fourteenth Circuit has ever established a First Amendment right to record police officers during the course of their official assignments. In fact, this Court has held to the contrary. Colten, 407 U.S. at 109. As a result, Officer Lockte had no reason to think his conduct was unreasonable or in violation of constitutional protections. Furthermore, qualified immunity is even appropriate under the broad approach. There is no consensus among the circuits regarding any recognized right. In Kelly, the Third Circuit held that it was not clearly established whether a citizen has a right to secretly record a police officer during a traffic stop. 622 F.3d at 262. In affirming the dismissal of Kelly s Section 1983 action, the Third Circuit conducted an in depth review of numerous cases, including Smith, 212 F.3d 1332, and Fordyce, 55 F.3d 436. After its analysis, the Third Circuit concluded that if any right exists it was a general right to record matters of public concern, as those cases only mentioned such a right in passing. Kelly, 622 F.3d at 261. Interestingly, in erroneously finding a clearly established right, the Fourteenth Circuit relied on Smith and Fordyce, the very same cases that were examined in Kelly and dismissed by the court as holding that there is a clearly established First Amendment right. The Fourteenth Circuit relied heavily on Glik in finding a clearly established First Amendment right. However, Glik is inapplicable to the instant case, and, in 19

32 any event, was wrongly decided. Glik involved the filming of police officers during an arrest on Boston Common. 655 F.3d at 79. However, nothing in that case suggests that the officers were acting in an undercover capacity. As discussed in Section I, A, 2, undercover officers are not the same as uniformed police officers; rather, they fill a vital and special role in law enforcement. Since Glik does not deal with undercover officers, it is simply inapplicable to the instant case. Even if this Court finds Glik instructive, the logic employed by the First Circuit is unsound. First, the court fails to even address the rule set forth in Colten, that there is no constitutional right to observe police in the course of their official duties. The First Circuit also erred in determining that the right was clearly established. In its brief analysis, the court stated: What is particularly notable about [First Circuit precedent] is the brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space This terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment s protections in this area. Id. at A right simply cannot be clearly established when no more than a few sentences are devoted to defining this right. The First Circuit s logic in that a cursory analysis of a First Amendment right acts to clearly define that right is fundamentally flawed. The circuit courts ambiguity and divergence in case law relating to this right requires the conclusion that such a right was not clearly established when Officer Lockte arrested Franklin. Lending further support to this conclusion that a right to record undercover officers is not clearly established, is the fact that Officer 20

33 Lockte s actions in arresting Franklin were reasonable. Officer Lockte was simply enforcing a valid, applicable and unchallenged statute. This analysis looks to whether [an officer] acted reasonable under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed. Hunter, 502 U.S. at 228. The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law. Id. at 229 (citing Malley v. Briggs, 475 U.S. 335, 343 (1986)). Officials should not err always on the side of caution due to the constant fear of suit. Davis v. Scherer, 468 U.S. 183, 196 (1984). Applying the black letter law of the wiretapping statute to the facts here shows that the circumstances faced by Officer Lockte supported Franklin s arrest. Franklin admitted that he did not have permission to record Officer Phelps. See Affidavit of Officer Lockte 8. Based on his training and experience, Officer Lockte was aware that the New London wiretapping statute required consent of all parties to record their conversations. Accordingly, Officer Lockte simply arrested Franklin for violating a valid and applicable law, as any reasonable officer in the same circumstances would have done. The record is void of anything that suggests that the wiretapping statute was ever challenged in the Fourteenth Circuit. Likewise, similar wiretapping statutes, adopted by many of the states have been challenged and upheld. See Carol M. Bast, What s Bugging You? Inconsistencies and Irrationalities of the Law of Eavesdropping, 47 DePaul L. Rev. 837, 839 (1998) (listing applicable wiretapping 21

34 and eavesdropping statues in each state); State v. Lambardo, 738 N.E.2d 653, 660 (Ind. 2000) (upholding the state s wiretapping statute after a constitutional challenge); State v. Ates, 46 A.3d 550, 558 (2012) (same). Officer Lockte had no reason to doubt the validity of the statute in the instant case. Upon a simple reading of the New London wiretapping law, from the perspective of a reasonable officer and not a legal technician, the facts confronting Officer Lockte supported a reasonable conclusion that Franklin s actions violated the wiretapping law and a resulting arrest would be proper and constitutional. Applying the law settled in 1972 in Colten, Officer Lockte acted reasonably under the circumstances. He was preventing the civilian interference and interruption of official police activity. If a police officer makes a reasonable mistake as to what the law requires, the officer is entitled to qualified immunity. Saucier, 533 U.S. at 205. Because qualified immunity gives police officers ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law, Hunter, 502 U.S. at 229 (emphasis added), Officer Lockte s conduct did not violate any clearly established constitutional right at the time of Franklin s arrest. To date, there has never been a Supreme Court case clearly defining the right to record undercover police officers with sufficient particularity to apprise Officer Lockte that his conduct was unconstitutional. In sum, the contours of any such right are far from conclusively drawn. Officer Lockte had no reason, under the pre-existing law, to assume his conduct was prohibited under the First Amendment. 22

35 Officer Lockte is entitled to qualified immunity unless and until Franklin establishes all prongs of the qualified immunity analysis. However, in the instant action, Franklin cannot satisfy any of the requisite steps. First, Franklin cannot show that Officer Lockte violated his First Amendment rights. This Court settled the question long ago in Colten when it stated that there is no constitutional right to observe [police in the performance of their duties]. 407 U.S. at 109. Second, even if the Court ignores Colten and finds a violation of a constitutional right, that right is far from clearly established. Neither this Court, the Fourteenth Circuit, nor any clear consensus of persuasive authorities have addressed whether videotaping an undercover police officer during the course of his official duties is protected conduct under the First Amendment. Any recognition of this right, if at all, would be announced for the first time with the instant decision. Officer Lockte acted reasonably in enforcing a valid, applicable and previously unchallenged law. For all these reasons, this Court should reverse the ruling of the Fourteenth Circuit. II. Officer Lockte should receive qualified immunity because he did not violate Franklin s Fourth Amendment rights; or alternatively, they were not clearly established at the time of his arrest. Officer Lockte is entitled to qualified immunity from Franklin s cause of action alleging he violated Franklin s Fourth Amendment rights when he searched his cell phone at the time of his arrest for violating New London s wiretapping statute. As discussed above, government officials are entitled to qualified immunity unless 1) the facts show the official s conduct violated a constitutional right; and 2) 23

36 the right was clearly established at the time of the official s violation. Saucier, 533 U.S. at 201; Pearson, 555 U.S. at 232 (giving courts discretion to decide which element should be determined first). The crux of qualified immunity is the understanding that officials should not always err on the side of caution because they fear being sued. Hunter, 502 U.S. at 229. Therefore, the qualified immunity standard provides officials with ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law. Id. With that in mind, Officer Lockte deserves the protection of qualified immunity. First, Officer Lockte did not violate Franklin s Fourth Amendment rights by searching his cell phone incident to his arrest. Second, should this Court decide to provide greater protection to cell phones and hold the search violated the Fourth Amendment, qualified immunity still attaches because the right was not clearly established at the time of Officer Lockte s search. Therefore, this Court should reverse the Fourteenth Circuit s decision and provide Officer Lockte with qualified immunity from Franklin s Fourth Amendment claims. A. Officer Lockte did not violate Franklin s Fourth Amendment rights when he searched Franklin s cell phone at the time of his arrest. Officer Lockte s search of Franklin s cell phone did not violate his Fourth Amendment rights because the search was incident to Franklin s arrest for violating New London s wiretapping statute. The search incident to arrest was valid because the search took place contemporaneously to Franklin s arrest and because the cell phone was immediately associated with Franklin s person. Alternatively, this Court could provide more protection to cell phone searches by 24

37 extending the vehicle search incident to arrest rule set forth in Arizona v. Gant, 556 U.S. 332 (2009), to searches of cell phones incident to arrest. If it does, Officer Lockte s search was still valid because it was reasonable to believe the cell phone contained evidence of the crime of arrest. Regardless, exigent circumstances existed, justifying Officer Lockte s search of Franklin s cell phone. For these reasons, Officer Lockte s search of Franklin s cell phone did not violate his Fourth Amendment rights. 1. Officer Lockte conducted a valid search incident to arrest when he placed Franklin under lawful arrest and then searched the cell phone immediately associated with his person. The search of Franklin s cell phone was a valid search incident to arrest, a well-settled exception to the warrant requirement of the Fourth Amendment. See United States v. Robinson, 414 U.S. 218, 224 (1973). This Court delineated the scope of a search incident to arrest in Chimel v. California, 395 U.S. 752 (1969), when it held ample justification exists to search the arrestee s person and the area within his immediate control. Id. at 763. Searches within these two areas are reasonable because it preserves officer safety and prevents the destruction or concealment of evidence. Id. Subsequently, this Court recognized the need for and provided clear guidance to police officers regarding searches incident to arrest. See Robinson, 414 U.S. at 235. After arresting the defendant in Robinson for driving without a license, the officer searched his person and discovered heroin inside a pack of cigarettes located in his shirt pocket. Id. at The Robinson Court established that a lawful 25