On March 9, 2020, the ACLU-NH filed a federal civil rights lawsuit against the Manchester Police Department and three of its officers for forcibly seizing a man’s smartphone without a warrant after he was recording the Department’s officers engaging multiple individuals during a fight at the 7-Eleven convenience store at 85 South Main Street in Manchester. This incident occurred on October 17, 2019, and the man was a bystander. After seizing the phone, the Department then, without explanation, kept the phone without obtaining a warrant for over two weeks. The plaintiff in the case is Neil Pineda-Landaverde. As alleged in the lawsuit, the Department’s actions violated Mr. Pineda-Landaverde’s Fourth and First Amendment rights.
The Fourth Amendment is clear that the police can only take someone’s property if they have a warrant or consent. One exception to the warrant requirement is where there is an exigent circumstance. In addition, under the First Amendment, a member of the public has the right to video and/or audio record law enforcement officers in a public place when the officers are acting in the course of their official duties, provided that the recording does not interfere with the officer’s performance of those duties.
As explained in the lawsuit, simply being a bystander and recording the police interacting with a suspect does not constitute an exigency that excuses the police from getting a warrant to obtain the recording. As at least one federal court has concluded, the Department’s position that it can confiscate bystanders’ cell phones without a warrant would, taken to its logical conclusion, permit the police to seize cell phones from any person, in any place, at any time, so long as the phone contains photographs or videos that could serve as evidence of a crime—simply because the nature of the device used to capture that evidence might result in it being lost. However, the Fourth Amendment draws a line well short of this awesome breadth of government power that no court has come close to recognizing. If the police want to seize a bystander’s phone, the answer is simple—get a warrant.