Moot Court Practice Packet

National Christian Forensics and Communications Association " addressing life issues from a biblical worldview in a manner that glorifies God." 2016-2017 Moot Court Practice Packet On the following pages, you ll find the practice packet for the 2016-2017 NCFCA moot court problem. While this is only a sample and the competition season problem may look a little different, it should give students, parents, and coaches an idea of what a moot court record looks like. The information contained on the following pages outline some of the main arguments for each side, as explained through the lens of the judges issuing the fictional opinions. In competition, students will be limited to material that was contained in the record (although the competition season problem will contain a larger record with more material, including the text of the key cases cited throughout and more factual background). The fictional court opinions also serve to give students an idea of how two the same set of facts can look from two different perspectives, and the importance of framing the factual narrative to best sell the legal argument. The competition season problem will be an entirely different case with new facts and a different legal issue. Additionally, this practice packet really contains a single legal issue (whether the officer can be sued for a violation of the Fourth Amendment under these facts) that has been split into two pieces (the violation of the right and the question of whether the right was clearly established at the time). This was done for several reasons, but primarily to avoid putting too many legal issues in this packet when the packet s purpose is to provide a way to quickly get into practice so students can become more comfortable with the event. As a result, the split is not entirely even, because there is more legal content related to whether there was a violation of the Fourth Amendment right than there is related to the clearly established question. Because of the uneven split in material within this practice problem, moot court advocates may find it useful to both discuss both prongs of the case, or to split the case by Fourth Amendment exception instead (i.e. one student discuss the search incident to arrest exception and whether it was clearly established, and the other student discuss the exigent circumstances exception and whether it was clearly established ). For the competition season problem, however, there will be two complete legal issues (rather than the single legal issue present in the practice packet), each with multiple pieces for students to learn and discuss. While the information in this packet may seem daunting at first, we encourage students to jump in and try arguing it anyway. Additionally, students should read the bench brief and overview of the practice problem for assistance in figuring out the key arguments. Finally, students are encouraged to research outside the problem packet although the in-round citations will be limited to things contained within the record, outside research can often spark different ways of thinking and can lead to better understanding and clearer argumentation. October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 1 of 31

No. 16-34024 IN THE SUPREME COURT OF THE UNITED STATES October Term 2016 GARRETT WARD, Petitioner, v. SKYLAR JOHNSON, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 2 of 31

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ARENDELLE NORTHERN DIVISION GARRETT WARD, Defendant, vs. No. 15-cv-1331-JHP SKYLAR JOHNSON, Plaintiff. ORDER GRANTING DEFENDANT S MOTION FOR SUMMARY JUDGMENT Skylar Johnson ( Johnson ) filed this lawsuit against Arendelle Bureau of Investigation Special Agent Garrett Ward ( Agent Ward ) for violation of her Fourth Amendment right to be free from unreasonable search and seizure. The basis of her claim is that Agent Ward inappropriately accessed the contents of her cell phone without a search warrant as the Arendelle State Police were arresting Johnson for a violation of the Arendelle Wiretap Statute. For the reasons discussed below, Agent Ward s actions were protected by the doctrine of qualified immunity, and therefore the Court hereby grants his motion for summary judgment and dismisses Johnson s case. I. BACKGROUND In July 2015, some citizens of Arendelle initiated large, organized protects against what they perceived as institutionalized police brutality and racism. These protests, like similar protests around the country, were a response to viral videos of police encounters with African American individuals, including several videos where police shot and killed suspects during these encounters. This continued a movement that calls itself Black Lives Matter (hereinafter, BLM ), which has existed in the United States for several years. It should be noted from the outset that both the Plaintiff and Defendant in this case are Caucasian, and there have been no allegations that Agent Ward s actions in this case were related to unlawful discrimination. In the last week of July 2015, citizens of Arendelle assembled in Center Park (in the State s capital of Arendelle City) to protest alleged systemic racism in policing. From the outset of the protest, the Arendelle State Police recognized the possible threat that the protests could turn violent, and enlisted the help of the Arendelle Bureau of Investigation to create the Arendelle Public Safety Task Force ( Task Force ). The Task Force ensured adequate police, medical, and emergency fire crews October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 3 of 31

were available to respond around the clock if the protests became violent. Additionally, the Task Force kept a visible police presence but, according to the facts agreed upon by both parties in this case, kept their distance to allow protestors room to express their frustration. In addition to the Task Force s public actions, they also installed an undercover officer, Melinda Maze (Officer Maze), into the movement. Officer Maze was able to establish a position of leadership within the movement, and protestors looked to her and others for direction. Officer Maze was able to use this influence to discourage protestors from breaking out into violence, and she was also able to secretly alert the Task Force to potential trouble and the plans of the protestors for subsequent nights of protesting. After approximately five days of protesting, one of the protestors, Skylar Johnson, became suspicious that Officer Maze was not actually part of the protest. One Task Force officer was alerted to this when he overheard Johnson asking a fellow protestor why Maze always seemed to rationalize the police conduct. This led the Task Force to attempt to keep an eye on Johnson s actions, for fear that Johnson might expose Maze s undercover identity. Agent Ward testified that he was nervous that, if Maze s undercover identity were revealed, the perceived betrayal would lead the protestors to turn to mass violence and Officer Maze would be their primary target. On the sixth day of protesting, Agent Ward noticed Johnson secretly videotaping Officer Maze as Officer Maze spoke to a uniformed police officer at the protest. Agent Ward became concerned that Officer Maze s cover was about to be exposed if the video were uploaded to ArendelleBLM.org, an online message board used by the protestors to communicate. Considering the growing intensity of the protest, and the fact that protests in other cities had become increasingly violent, Agent Ward feared for Officer Maze s safety and radioed other officers to move in and confront Johnson. Agent Ward and the other officers approached Johnson, and Agent Ward asked Johnson if she had Maze s permission to videotape her. Johnson replied that she did not. After Johnson replied that she did not have permission to videotape Maze, Agent Ward asked her to refrain from videotaping the conversation. In response, Johnson exclaimed, wait, she is one of you! As soon as Agent Ward heard this statement, he motioned for the other officers to arrest Johnson for violating the Arendelle Wiretap Statute, which prohibits videotaping or otherwise intentionally intercepting another person s communications without consent of all parties to the communication. As they were arresting Johnson, Agent Ward asked if she had uploaded the video yet, October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 4 of 31

which she refused to answer. Agent Ward then confiscated the phone and viewed the already-open video application. The video had not yet been uploaded, although there was a draft post with the caption, Why is Maze so chummy with the police? Not long after Johnson s arrest, the Supreme Court ruled that the Arendelle Wiretap Statute was unconstitutionally vague and was also too broad a restriction on the First Amendment right to freedom of speech and of expression. As a result, the Arendelle District Attorney dropped any charges against Johnson. The current case before this Court is a civil lawsuit filed by Johnson against Agent Ward under Title 42, Section 1983 of the United States Code, claiming that the search of her phone without a warrant was a violation of her Fourth Amendment rights. Agent Ward requested this Court grant summary judgment in his favor, on the grounds that the doctrine of qualified immunity, which protects police officers from lawsuits for the alleged violation of an individual s rights, unless the right was clearly established at the time of the violation. II. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate only where the movant shows that there is no genuine dispute as to any material fact. See Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit under the governing law.... Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. In essence, the inquiry at the summary judgment stage is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law. Id. at 251-52. Specific to this case, however, is the question of qualified immunity, which depends not only on whether the facts would show a violation of the Fourth Amendment, but whether that right was so clearly established at the time of the alleged violation that an officer should be held personally liable for the violation. III. DISCUSSION A. Qualified Immunity Generally Qualified immunity is an affirmative defense available to government officials insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 815, 818 (1982). If a government official can show that qualified immunity applies in a given case, he cannot be held personally liable and the case must be dismissed before it ever reaches the trial stage. October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 5 of 31

Qualified immunity balances the interests of ensuring accountability for public officials who irresponsibly exercise power and protecting officials from harassment, distraction, and liability when they perform their duties reasonably. Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Supreme Court has established a two-step analysis which may be resolved in any order to determine if an official is entitled to qualified immunity; this Court must decide: (1) whether the facts alleged by Johnson make out a violation of her constitutional rights, and (2) whether those rights were clearly established at the time of the alleged violation. Id. at 232. The ultimate determination depends on the objective legal reasonableness of the [officer s] action, assessed in light of the legal rules that were clearly established at the time it was taken. Wilson v. Layne, 526 U.S. 603, 614 (1999). B. The search of Johnson s phone did not violate her Fourth Amendment rights 1. The search was justified under the incident-to-arrest exception First, we must specifically define the right allegedly violated to properly determine if said right was clearly established at the time of the violation. A broad claim that the search violated Fourth Amendment rights is too indefinite to satisfy the specificity required for a proper analysis under qualified immunity. Rather, the law requires that the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987) (emphasis added). In the present case, the right in question is more specifically described as an arrestee s right to be free from a warrantless search of her cell phone, found on her person or in the area of her immediate control, incident to a lawful arrest. The Fourth Amendment provides, in pertinent part, that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches... shall not be violated.... U.S. Const. amend. IV. Although warrantless searches are per se unreasonable violations of the Fourth Amendment, the Supreme Court has meticulously drawn exceptions to this conclusive presumption, including the incident-to-arrest exception. Jones v. United States, 357 U.S. 493, 499 (1958). A well-settled, and traditional exception to the per se unreasonable rule is a search incident to valid arrest. A lawful arrest establishes the authority of an officer to conduct a full search of the arrestee. U.S. v. Robinson, 414 U.S. 218, 235 (1973). A search incident-to-arrest is not only a valid exception to the Fourth Amendment warrant requirement, but is also a reasonable search under the Amendment. Id. This exception enables an officer to search the arrestee s person and the area within October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 6 of 31

his immediate control for the purposes of ensuring officer safety and preventing the destruction of evidence. Chimel v. California, 395 U.S. 752, 763 (1969). By virtue of this exception, a warrantless search incident-to-arrest is both lawful and reasonable. It is notable that neither party here disputes that, in arresting Johnson, Agent Ward was entitled to confiscate the phone and any other items. The only question is whether searching the phone after taking it was lawful. Where both parties concede that the initial seizure of the cell phone was permissible under the incident-to-arrest exception to the warrant requirement, the remaining inquiry is whether the exception covers the subsequent search of the open application on Johnson s cell phone. In Chimel, the Supreme Court reasoned that the proper extent of a search incident to lawful arrest extends to the arrestee s person, or area within the arrestee s immediate control, insomuch as the search is contained to the area from within which [the arrestee] might gain possession of a weapon or destructible evidence. 395 U.S. at 763. Courts continue to struggle to define the constitutional boundaries for reasonable searches incident to custodial arrest. The Supreme Court in Chadwick sought to limit the search of a container found in the arrestee s immediate control where the search is remote in time and place from the arrest. See U.S. v. Chadwick, 433 U.S. 1 (1977). The Court reasoned that the potential dangers associated with custodial arrests justify a prompt search of the person and immediate area, but that justification does not extend to searches of property remote in time and place from the arrest. Id. at 14-15. On a similar vein, the Supreme Court in Chimel held the search of an arrestee s entire home, incident to his arrest for burglary of a coin shop, to be unreasonable under the Fourth Amendment insofar as the search exceeded its permissible scope within the purview of the exception. 395 U.S. at 753, 768. The Court found that the search extended far beyond the arrestee s person and the area from within which he might have gathered evidence or a weapon. Id. at 768. These cases detail searches that exceed the permissible scope to search by virtue of the exception. However, the scope of these searches is distinguishable from the search at hand. Agent Ward conducted a limited search of the open video application on Johnson s phone, found on her person, contemporaneous with his arrest. The prompt search was both brief in time and content. The searched footlocker in Chadwick was not seized from within the area of arrestee s immediate control, and was searched in a different location over an hour after the seizure. 433 U.S. at 14, 15. Though distinguishable in scope, the purpose of the search in this case fits within the Chadwick October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 7 of 31

and Chimel framework. Agent Ward sought to secure the video evidence, and prevent its publication to protect Officer Maze and the public from agitated protestors. In light of established Fourth Amendment principles in conjunction with the permissible scope of an incident-to-arrest search, the search is justified because it was strictly tied to the circumstances that made the search permissible. 2. Even if the incident-to-arrest exception did not apply, the exigent circumstances exception to the Fourth Amendment does apply If the incident to arrest exception is too attenuated to justify the search in question, the exigent circumstances support Agent Ward s reasonable determination that the search was imperative to ensure the safety of Officer Maze and the public. In Hayden, the Supreme Court held that the search and seizure must be contemporaneous with the arrest. The permissible scope of search must, therefore, at least be as broad as may reasonably be necessary to prevent the dangers that the suspect... may resist or escape. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 299 (2009). In the present case, the protestors used the website ArendelleBLM.org as a primary means of sharing ideas and information pertaining to the protest. Therefore, if Johnson were to successfully upload the footage, the entire protest would be on notice of Officer Maze s true identity. Despite the protest s restrained beginnings, Agent Ward feared the legitimate possibility that violence could ensue in the wake of the posting. Similar protests in other cities had become increasingly more volatile. See collection of news articles attached in the record. Agent Ward acted in response to the growing intensity of the protest, and he reasonably feared that the preceding peacefulness could become violent if the protestors knew of Maze s identity as an undercover officer. In Hayden, the arrestee committed armed robbery of a local business and then was witnessed entering a private residence nearby. 387 U.S. at 298. When the police arrived moments later, they entered the home without a warrant to search for the suspect, ultimately leading to his arrest. Id. The Supreme Court found that the exigent circumstances justified the warrantless search of a private residence, and that the officers acted reasonably. Id. The Court further stated that the Fourth Amendment does not require officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Id. at 298-99. In the present case, if a warrant requirement delayed Agent Ward s search, the publication of the video without official knowledge might have delayed the ability of the Task Force to respond appropriately. The Hayden Court further validated the search by attesting that, where speed was crucial to ensure the safety of the officers and the capture of the suspect, the exigencies of the situation made that course imperative. Id. Therefore, October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 8 of 31

courts are willing to uphold warrantless searches where the circumstances require reasonable action without delay. In Tibolt, the First Circuit court reasoned that exigent circumstances exist where law enforcement officers confront a compelling necessity for immediate action that w[ould] not brook the delay of obtaining a warrant. U.S. v. Tibolt, 72 F.3d 965, 969 (2011) (quoting U.S. v. Wilson, 36 F.3d 205, 209 (1st Cir. 1994)). The court further explained that such fact-intensive determinations commonly include: threatened destruction of evidence, and a threat to the lives or safety of the officers or the public at large. Id. Ultimately, the court concluded that exigent circumstances involve an inquiry into the objective facts reasonably known to... the officers at the time of the search. Id. This is relevant to the facts in the present case where there was a legitimate possibility that the safety of the protestors, bystanders, and the officers in the area could be compromised if the protestors discovered Officer Maze s true identity. As a result, the exigent circumstances exception to the Fourth Amendment means that the search did not violate Johnson s constitutional rights. C. Even if the search did violate Johnson s Fourth Amendment rights, those rights were not clearly established at the time of the search Even if the search of Johnson s phone violated her Fourth Amendment rights, this Court would still grant summary judgment and find that Agent Ward is entitled to qualified immunity because the right was not clearly established at the time of the violation. Notwithstanding that his actions violated the Fourth Amendment, Agent Ward may still be immune from suit where, in light of preexisting law, the unlawfulness of his actions were not apparent. A determination of whether a right is clearly established depends upon the level of generality at which the relevant legal rule is to be identified. Wilson, 526 U.S. at 614 (quoting Anderson, 483 U.S. at 641). To ensure that officials can reasonably anticipate when their actions may give rise to liability, is imperative to define the constitutional right with enough specificity so not disrupt the balance between the interests in vindication of citizens constitutional rights and in public officials effective performance of their duties. Anderson, 483 U.S. at 639. This does not imply that the search in question must have previously been held unlawful, but rather, in consideration of pre-existing legal standards, the unlawfulness of the action must be apparent. Id. at 640. Neither the Supreme Court, nor the Fourteenth Circuit, have addressed the particular Fourth Amendment inquiry at issue. Absent binding precedent, there has been no definitively persuasive October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 9 of 31

determination that a cell phone search incident to lawful arrest violates the arrestee s Fourth Amendment rights. The fact that other circuits are split indicates that the right at issue, while robustly contested amongst courts, was not clearly established at the time of the arrest. In Wilson, the Supreme Court assessed a scenario in which officers entered a private residence, with a reporter and photographer in tow, to apprehend and arrest a dangerous fugitive believed to be inside. 526 U.S. at 607. The residents sued claiming that their Fourth Amendment rights were violated when the officers allowed members of the media to witness the attempted arrest. Id. at 608. The Supreme Court ultimately held that the officers were entitled to qualified immunity, despite its initial determination that their actions violated the Fourth Amendment. Id. at 614. The Court then turned to balance the objective legal reasonableness of the officers actions in light of clearly established law at the time. In doing so, the Court reasoned that, absent any controlling authority ruling on the particular issue, and any consensus among persuasive authorities on the matter, a reasonable officer could have believed his actions to be lawful. Id. at 617. Where the Federal Circuits disagree on a constitutional question, the Court declined to subject officers to liability for relying on the losing side. Wilson, 526 U.S. at 618. After all, if judges on the Federal Circuit Court of Appeals cannot agree on the outcome of a legal issue, how is a police officer to be expected to know with certainty what the law truly means? The minority of circuit courts have concluded that, absent exigent circumstances, once the cell phone comes into the exclusive control of the officer, the subsequent search is not justified. U.S. v. Wurie, 728 F.3d 1, 5-6 (1st Cir. 2013). These minority courts frame the issue as being one in which cell phone searches either fall inside the bounds of Chimel or not. Id. at 7. The First Circuit in Wurie sets out to create a bright-line rule that all warrantless cell phone data searches are categorically unlawful under the exception of search incident to arrest, and therefore should always require a warrant to validate a subsequent search. Id. at 12. However, the case involves facts that do not speak to pertinent evidentiary protection or officer safety. In suggesting this categorical rule, the First Circuit weakens the ability of officers to make reasonable determinations under the circumstances of the arrest, and may deter objectively reasonable law enforcement activity. Davis v. United States, 131 S.Ct. 2419, 2429 (2011). I find that the minority of circuit courts unreasonably assume that there is never necessity to protect arresting officers or evidentiary material, and in doing so risk disrupting meaningful law enforcement purposes to the contrary. Wurie, 728 F.3d at 13. The right is not clearly established when October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 10 of 31

courts that purport to agree do so for distinct purposes and under distinguishable facts. Also, the majority of circuits find in favor of upholding the search. Therefore, if any right were clearly established by persuasive precedent, it would be expected that Agent Ward would be entitled to believe what the majority of circuit courts had decided on the issue. The Fourth Amendment protects people from unreasonable privacy intrusions, but the contours of the implicated right have yet to be determined by binding authority. The search was within the permissible scope of a search incident-to-arrest, or at minimum was justified by the exigent circumstances, and was therefore reasonable under the Fourth Amendment. The lack of consensus regarding the right supports a finding that it was not clearly established at the time of the arrest. Therefore, because Agent Ward did not violate Johnson s clearly established Fourth Amendment right, he is entitled to qualified immunity and this Court will dismiss the case. IV. CONCLUSION For the foregoing reasons, I grant Agent Ward s motion for summary judgment. /s/ Joseph Hank Palmer. United States District Court Judge October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 11 of 31

UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH JUDICIAL CIRCUIT SKYLAR JOHNSON, Plaintiff/Appellant, vs. No. 16-00408 FILED: GARRETT WARD, Defendant/Appellee. Before the Honorable Hastings, Marin, and Montgomery: The Hon. Spencer Hastings delivered the opinion of the panel: Skylar Johnson ( Johnson ) here appeals the District Court s grant of summary judgment for Agent Garrett Ward ( Agent Ward ), claiming that the District Court improperly granted qualified immunity to Agent Ward regarding her Fourth Amendment claim. We agree with Johnson, and reverse the grant of summary judgment. I. PROCEDURAL POSTURE AND FACTS The district court order granting Agent Ward s Motion for Summary Judgment explains the facts giving rise to this case. Johnson appeals the grant of summary judgment, and reasserts the arguments she made below. Specifically, she argues that the search of her cell phone was a violation of her Fourth Amendment right to be free from unreasonable search and seizure, and that those rights were clearly established at the time of the violation. The events that triggered the current action occurred during July 2015 in the City of Arendell. In response to viral videos of what appears to be police racism and unfair treatment, citizens gathered in Center Park to protest. The Black Lives Matter ( BLM ) movement, which already existed in other cities across the country, grew quickly in Arendelle as citizens expressed their frustration. Out of hundreds of protestors, three individuals rose in popularity to serve as the group s leaders, including Officer Melinda Maze ( Officer Maze ), an undercover police officer posing as a retired civil servant. Officer Maze, who was actually employed by the Arendelle State Police, was instructed to infiltrate the movement, gain the protestors trust, and supply the Arendelle Public Safety Task Force ( Task Force ) with any developing plans or information. The Task Force sought information about the protestors future strategy, particularly whether they would expand to other public areas of the City of Arendelle. As the Task Force expected, the other leaders expressed the desire October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 12 of 31

to expand to other highly trafficked public spaces within the city, but Officer Maze persuaded them to stay in the geographically isolated Center Park and to remain peaceful. Throughout the protests, protestors regularly filmed Officer Maze and the other leaders. On occasion, these videos were uploaded to a website called ArendelleBLM.org to document the movement. Nearly a week into the protest, a protestor named Skylar Johnson began to use her cell phone to videotape Officer Maze speaking to a uniformed Arendelle State Police officer, after suspecting that Officer Maze was herself an undercover police officer. Agent Ward noticed Johnson and suspected that she had discovered Officer Maze s secret occupation. Agent Ward immediately approached Johnson and asked her whether she had obtained Maze s consent to record her conversation. Johnson simply answered in the negative but stated she did not think he needed Maze s permission since protestors had been filming the leaders for weeks. Agent Ward asked Johnson to stop videotaping, to which she responded with a statement regarding her belief that Maze was an undercover officer. Without a verbal response, Agent Ward immediately physically seized Johnson s phone and asked her whether she had already posted the video online. When Johnson did not give a clear answer, Agent Ward proceeded to access the contents of Johnson s phone and found the recently captured video of Officer Maze within a draft on a video application. Agent Ward claimed that if Johnson had posted the video on ArendelleBLM.org with the insinuation that Officer Maze was working for the Task Force, Officer Maze s safety and the Task Force s relationship with the protestors might have been at risk. But Agent Ward admitted to the District Court that, prior to the incident, interactions between the protestors and the Task Force had been completely peaceful and that not one protestor had been arrested for any reason. After locating the video clip, Agent Ward arrested Johnson on the grounds that she violated Arendelle s wiretapping law. After the arrest, the District Attorney dropped the wiretapping charges once the Supreme Court declared it unconstitutional for other reasons. Johnson sued Agent Ward in the United States District Court for the Southern District of Arendelle, claiming that Agent Ward violated her Fourth Amendment rights by searching her cell phone without a warrant. II. JURISDICTION AND STANDARD OF REVIEW The district court had proper federal question jurisdiction over Johnson s Fourth Amendment claims brought under 42 U.S.C. 1983, and jurisdiction was proper under 28 U.S.C. 1331. October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 13 of 31

Jurisdiction is therefore proper in this Court from the final decision of the district court under 28 U.S.C. 1291. The district court granted summary judgment, which we review de novo (anew) on appeal. Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1110 (9th Cir. 2012). In other words, on appeal we review the entire case again, without deference to the conclusions of the lower court. Furthermore, when reviewing qualified immunity, [w]hether a federal right was clearly established at a particular time is a question of law, not legal facts, and must be resolved de novo on appeal. Elder v. Holloway, 510 U.S. 510, 511 (1994). III. DISCUSSION As discussed in greater detail below, we reverse the decision of the lower court because Johnson s Fourth Amendment rights were both violated and clearly established at the time of that violation, precluding Agent Ward from entitlement to qualified immunity. Qualified immunity cannot shield government officials from civil liability when a plaintiff s constitutional right is proven violated and that right was clearly established at the time of the violation. Put simply, the safeguard of qualified immunity cannot overcome a State s intrusion on the plaintiff s fundamental rights. To compel the court to deny qualified immunity in this case, Johnson must present facts to make out a clear violation of her constitutional right to privacy and then show that those rights were clearly established at the time of the violation. Giragosian v. Bettencourt, 614 F.3d 25, 29 (1st Cir. 2010). The Fourth Amendment to the Constitution of the United States assures its citizens of their right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. CONST. amend. IV. It is well established that the fundamental purpose of the Fourth Amendment is to protect citizens from unwarranted government invasions into their private lives. Jones v. United States, 357 U.S. 493, 498 (1958). Consistent with this principle, warrantless searches by the police are considered per se unreasonable and unconstitutional, subject only to certain jealous and carefully drawn exceptions. Georgia v. Randolph, 547 U.S. 103, 109 (2006) (quoting Jones, 357 U.S. at 99). The Supreme Court Court established such an exception in Chimel v. California, holding that an arresting officer could perform a warrantless search incident to arrest if faced with certain circumstances. 395 U.S. 752, 762-63 (1969). The Court offered only two instances of those circumstances: 1) to remove any weapons from the arrestee s person that he could use to harm the officer or effect his own escape or 2) to search for destructible evidence on the arrestee s person. Id. October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 14 of 31

It is clear that Agent Ward s search of Johnson s phone did not fall within the carefully drawn Chimel exception to the Fourth Amendment s prohibition of warrantless searches. Furthermore, cell phones are inherently private possessions, unlike items immediately associated with a person that may be searched during an arrest under Chimel. Due to cell phones widely recognized heightened expectation of privacy, Johnson s Fourth Amendment rights regarding her phone were clearly established when Agent Ward violated them. A. The search violated Johnson s Fourth Amendment rights because the incident-to-arrest exception from Chimel does not apply in this case The Chimel exception originally gave an arresting officer the right to seize and search an arrestee s person without a warrant; four years later, the Supreme Court interpreted person to include an individual s personal effects, as long as the items searched could be construed as weapons or as evidence in danger of destruction. United States v. Robinson, 414 U.S. 218, 236 (1973) (holding that the arresting officer was justified in searching a cigarette package found in the arrestee s pocket because he could not readily identify what it contained). When articulating the boundaries of the actual search, the Supreme Court specified that an arresting officer may only search effects within the arrestee s immediate control. Id. at 223-24. The area within a person s immediate control has since been consistently defined as the area from which she might easily procure a weapon or access destructible evidence. United States v. Hudson, 100 F.3d 1409, 1419 (9th Cir. 1996) (quoting Chimel, 395 U.S. at 763). The Chimel exception has unique context when applied to cell phones. United States v. Flores- Lopez, 670 F.3d 803 (7th Cir. 2012). The Seventh Circuit Court of Appeals in Flores-Lopez recognized that arresting officers have a legitimate reason to fear cell phones because they can be used as weapons. Id. at 806 (pointing out that individuals can now purchase stun guns that look like cell phones). The same court also expressed evidentiary concerns about remote wiping, a process by which an arrestee can delete information on his cell phone with the touch of a button. Id. at 807; see also United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (holding that immediate retrieval of call and text message records during an arrest was necessary to preserve evidence). While the Seventh Circuit did not specifically endorse or strike down the search of cell phones in particular, its discussion helps illustrate the concerns that generated the Chimel exception in the first place. Agent Ward s initial interaction with Johnson was to physically remove the device from his hands, exerting full control over it and taking it away from Johnson s reach. It was after completely removing the device from Johnson s possession that Agent Ward began searching the device. Johnson October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 15 of 31

could not reach the phone held firmly in Agent Ward s grip, meaning she could not possibly have used it as a weapon or accessed it to destroy potential evidence. It may be remotely conceivable that Agent Ward initially seized the phone to prevent Johnson from attacking him with it, but once Agent Ward took the phone he had no further reason to fear it could be used as a weapon. Similarly, any concern that Agent Ward had about Johnson s ability to destroy possible evidence on the phone was eliminated. This line of reasoning was recognized by the Supreme Court in Arizona v. Gant, which struck down the search of a vehicle during an arrest because the arrestee could not reach the car at the time. 556 U.S. 332 (2009). Logically, if you cannot reach an item, you cannot tamper with or wield it, and the Supreme Court declared that police may administer a search incident to arrest only if the arrestee is within reaching distance of his personal effects. Id. at 351. The First Circuit echoed this rationale by deeming all cell phone searches after arrest unconstitutional, reiterating the fundamental principle that the authority to search the person incident to a lawful custodial arrest is based upon the need to disarm and to discover evidence. United States v. Wurie, 728 F.3d 1, 12 (2013). Agent Ward had effectively disarmed Johnson before he searched the cell phone and thus, cannot justify his search with a concern for safety or for the preservation of evidence. Many district and state courts have adopted similar views of the search of an arrestee s cell phone after it has been removed from her immediate control. See, e.g., United States v. James, 2008 WL 1925032, at *10 n.4 (E.D. Mo. Apr. 29, 2008); United States v. Dixon, 2013 WL 6055396, at *6 (N.D. Ga. Nov. 15, 2013) (holding that a search of arrestee s cell phone after seizure was unconstitutional when it posed no harm to the officer and alternative methods could have preserved evidence, including turning the phone off, placing it on airplane mode, or removing its battery); United States v. DiMarco, 2013 WL 444764, at *12 (S.D. NY. 2013) (suggesting that disabling and stowing a seized cell phone until obtaining a warrant would be far less intrusive to the arrestee s privacy). The court in Dixon firmly states that because there were no exigent circumstances, a warrant was necessary to search the cell phone contents. Dixon at *6. The Supreme Court of Florida recently interpreted Gant to mean that once an arrestee is physically separated from his personal effects, the dual rationales for the search exception no longer apply. Smallwood v. State, 113 So.3d 724, 734 (Fla. 2013). The Supreme Court of Ohio illustrated this principle by suppressing evidence of phone calls, text messages, and pictures found on an arrestee s cell phone by the arresting officer who had confiscated the device. State v. Smith, 920 N.E.2d 949 (Ohio 2009). That court rejected the government s argument that the search fell under the exception, October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 16 of 31

declaring that a search of the cell phone s contents was not necessary to ensure officer safety, and the state failed to present any evidence that the call records and phone numbers were subject to imminent destruction. Id. at 955. The Chimel exception to the Fourth Amendment s ban on warrantless searches is inapplicable when an officer searches an arrestee s personal effects beyond what is necessary to remove possible weapons or to prevent the concealment or destruction of evidence. United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2007). Agent Ward removed the threat of physical danger when he took Johnson s phone, and could have turned the cell phone off or removed the battery to prevent the destruction of evidence. Instead, he searched Johnson s phone well after the circumstances that would trigger the Chimel exception were eliminated, and thus, certainly violated Johnson s Fourth Amendment rights. B. The search violated Johnson s Fourth Amendment rights because the exigent circumstances exception does not apply in this case Absent the application of the limited exception from Chimel, the warrantless search of an individual s property seized during an arrest is also unconstitutional unless there are exigent circumstances. United States v. Chadwick, 433 U.S. 1, 14 (1977). The arresting officers in United States v. Chadwick seized and searched a locked trunk taken from the arrestees vehicle, claiming that it was a lawful search incident to arrest. Consistent with their reasoning in Chimel, the Supreme Court declared that the warrantless search was not justified if no exigent circumstances exist. Id. at 15. Exigent circumstances are really only possible when an arrestee s effects are within her reach at the time of the search; once out of the arrestee s exclusive control, secured by the arresting officer, such items pose no threat to the officer s safety or to the potential evidence. Id. at 13. Even accepting Agent Ward s argument that he feared for Officer Maze s safety (which is doubtful because there had been no violent incidents or even arrests at the Arendelle protests, unlike at other protests around the country), it would not justify an immediate, warrantless search, when there were less intrusive options available to him and the Task Force. After all, even if the video had already been posted, it would have taken some time before the hundreds of protestors could have all viewed the video and turned violent it would not have been an instant danger. Therefore, Agent Ward and the other Task Force officers could have removed Officer Maze from the environment before any danger could have been posed. Additionally, Agent Ward could have checked the ArendelleBLM.org October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 17 of 31

website on his own cell phone or other device to see if the video had been publicly posted; there was no reason he needed to check for that information on Johnson s cell phone rather than on another device. Therefore, the only arguable justification for Agent Ward searching Johnson s phone would be to attempt to stop the upload if it were already in progress, and he could have just as easily accomplished that objective by powering down the phone or removing its battery. Some circuits have upheld the warrantless search of a cell phone recovered from the arrestee s immediate control. See, e.g., United States v. Curtis, 635 F.3d 704, 712-13 (5th Cir. 2011) (citing United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007)). In Finley, arresting officers seized a suspect s cell phone during his arrest and later searched it for incriminating information. Finley, at 254-255. The Fifth Circuit upheld the search, rationalizing the phone as immediately associated with the arrestee s person at the time of the search. Id. at 260 n.7. However, the rationale in Finley is not persuasive here, because it is clear that no exigent circumstances were present when Agent Ward conducted his search of Johnson s phone. Assuming that Agent Ward made a lawful arrest, the bright line rule set forth in Robinson allowed him to detain Johnson, search her, and even seize her cell phone as a personal effect within her immediate control. Robinson, 414 U.S. at 235. When Agent Ward entered the phone and searched through personal information, he stepped beyond the lines of an acceptable search and violated Johnson s Fourth Amendment right to privacy. C. Johnson s right to be free from unreasonable search and seizure was clearly established at the time of the violation It is a well-established constitutional principle that the Fourth Amendment s protection depends not on character of the property invaded by the government, but whether the invaded area had a reasonable expectation of freedom from government intrusion. Mancusi v. DeForte, 392 U.S. 364, 368 (1968). As previously discussed in this opinion, warrantless searches of a person and the items immediately associated with her (like a purse or a wallet) are often justified when she is under arrest because there is an inferred reduction in an arrestee s expectation of privacy. However, searches of a person s possessions are not automatically justified under the same standard. Chadwick, 433 U.S. at 16 n. 10. A person s privacy interest in property separate from her person is not eliminated or reduced simply because she is being arrested. Id. Courts have increasingly recognized cell phones as a category of possessions under Chadwick that are fundamentally different from items associated with the person, and therefore demand a higher expectation of privacy under the Fourth Amendment. October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 18 of 31

Due to advances in technology, cell phones now have vast storage capacities, capable of storing nearly limitless amounts of personal information that can encompass the social, emotional, medical, occupational, and financial details of a person s life. In addition to the myriad of personal documents that could betray an individual s most private information, cell phones are often equipped with web browsers and social media applications, which may display a browsing history that divulges the hobbies, interests, and activities of its owner. Put simply, a person s cell phone does not just contain his personal information and private thoughts, but the intimate details of his past, present, and future. The First Circuit was the first to recognize cell phones as fundamentally distinct from items immediately associated with the person, asserting that a person s phone holds the type of information that previous generations would have stored in their homes, which would have been off-limits to officers performing a search incident to arrest. Wurie, 728 F.3d at 8. The court acknowledges the fact that some cell phones now function as computers and can perform highly complex tasks such as remote home monitoring and social video conferencing. Id. at 8-9. By referencing such capability, the First Circuit recognizes that the search of a person s cell phone could literally become the search of her home, which is never eligible for a warrantless search. Id. Some circuits have avoided recognizing cell phones as separate, private possessions under Chadwick by insisting that they are simply closed containers, which have long been searchable by arresting officers. See, e.g., People v. Nottoli, 199 Cal.Rptr.3d 884, 898 (Cal. Ct. App. 2011) (citing New York v. Belton, 453 U.S. 454 (1981) (defining container as any object capable of holding another object)). Circuits that define cell phones as containers reason that the Chimel exception justifies the warrantless search of the data within an arrestee s phone just like it justifies the warrantless search of the contents within an arrestee s wallet. Silvan W. v. Briggs, 309 Fed.Appx. 216, 225 (10th Cir. 2009). However, it must be clear to anyone who uses a cell phone that the comparison between such a device and a wallet is unreasonable; the two items are inherently different with regard to both storage capacity and quality of saved information. Many district and state courts agree with this logic and have held that cell phones could not possibly be subject to a search-incident-to-arrest as part of the person. See Park, at *8; see also Smith, 124 Ohio St.3d 163. The Park court firmly draws the line between cell phones and items associated with the person, stating that unlike pagers or address books individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations. Id. The court goes on to predict massive infringements of privacy if cell phones are considered part of the October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 19 of 31

person, characterizing the search of an electronic storage device as substantially more intrusive than the search of a tangible object. Id. In contrast, even the most basic-model cell phones of today can store large quantities of messages, calls, and digital files that are unaffected by additional data. Id. Because data on cell phones is not in danger of sudden, uncontrollable deletion, arresting officers have no authority under the Chimel exception to search a cell phone to preserve evidence. Id; United States v. McGhee, 2009 WL 2424104, at *1 (D. Neb. 2009) (holding that officers had no justification for conducting a warrantless search of an arrestee s cell phone because it did not present a risk of harm to destructible evidence). A few courts have attempted to compromise on the determination of a cell phone s expectation of privacy by ruling that an arresting officer may execute only a partial search of the phone. See United States v. Gomez, 807 F.Supp.2d 1134, 1148 (S.D. Fla. 2011) (holding that the search of an arrestee s cell phone was appropriate because it was limited to the call history from the previous 24-48 hours). Although it has not produced a categorical rule for the search of cell phones during an arrest, the Seventh Circuit upheld the actions of arresting officers who limited their search of an arrestee s phone to his call history. Flores-Lopez, 670 F.3d at 805. Claiming that the invasion of the arrestee s privacy was limited to the discovery of the cell phone s number, the court analogized the search to a quick look through an arrestee s address book, which is valid under the Chimel exception. Id. at 807-08 (citing United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993)). Unfortunately, leafing quickly through an address book is almost impossible to simulate on a cell phone. A cell phone s navigation system accommodates the use of multiple programs simultaneously, allowing a fast and easy search of countless pages of personal information. See Wurie, 728 F.3d at 8. The Seventh Circuit makes it sound simple for a user to avoid certain personal information on a cell phone, waxing: If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone. Flores-Lopez, 670 F.3d at 807. Unfortunately, a cell phone s inherent, open-book accessibility make it impossible to avoid seeing certain personal information while searching through it; while looking for a simple phone number, an arresting officer may stumble across text messages, media files, and e-mails that he can never un-see. Applying a limited search approach to the current facts fails because Agent Ward did not just attempt to find Johnson s cell phone number. Additionally, as a matter of policy, a limited search rule October 2016 NCFCA 2016-2017 Moot Court Practice Packet Page 20 of 31