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Ariana Schechter, 603-227-6679

March 12, 2020

CONCORD, N.H. - On March 9, 2020, the ACLU of New Hampshire 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. Mr. Pineda-Landaverde is being represented by Gilles Bissonnette and Henry Klementowicz of the ACLU of New Hampshire and Richard Lehmann of Lehmann Law Office PPLC.

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.

“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,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire.  “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.”

“The Department’s position that it can seize bystanders’ cell phones without a warrant is concerning,” said Rick Lehmann, who is also co-counsel in the case. “As the First Circuit has ruled, protecting the right of information gathering not only aids in the uncovering of abuses, but it also may have a beneficial effect on the functioning of government more generally.  To allow automatic warrantless seizures of bystanders’ cell phones containing recordings of police interactions without any evidence of exigency would deeply chill the First Amendment right to record, as the public simply would not exercise this constitutional right out of fear that doing so would authorize law enforcement to seize one’s phone and hold it indefinitely.  This is why this lawsuit is important—namely, to ensure that people feel free to exercise their right to record the police without losing their property.”

More information about the case can be found here: https://www.aclu-nh.org/en/cases/neil-pineda-landaverde-v-city-manchester

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