Wire Tap Law for Recording Police Defeated Again: GERICKE v BEGIN

MAY 23, 2014 United States Court of Appeals For the First Circuit Before Thompson, Selya and Lipez, Circuit Judges.

Carla Gericke, was arrested for wiretapping allegations in 2010 after filming her friend being pulled over and excessive force used by the Weare Police Department during a late-night traffic stop. Although Gericke was never brought to trial, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights. She filed a Civil action for deprivation of rights under 42 U.S. Code § 1983.


CARLA GERICKE, Plaintiff Appellee v GREGORY C BEGIN WEARE POLICE CHIEF:"Accordingly, we hold that the district court properly denied qualified immunity to the officers on Gericke's section 1983 claim that the wiretapping charge constituted retaliatory prosecution in violation of the First Amendment.
Affirmed."

RESOURCES

Elements of a Section 1983 Claim

To prevail in a claim under section 1983, the plaintiff must prove two critical points: a person subjected the plaintiff to conduct that occurred under color of state law, and this conduct deprived the plaintiff of rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution.

A state is not a "person" under section 1983, but a city is a person under the law (Will v. Michigan Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 [1989]). Similarly, state officials sued in their official capacities are not deemed persons under section 1983, but if sued in their personal capacities, they are considered to be persons. Thus if a plaintiff wants to bring a section 1983 claim against a state official, she or he must name the defendants in their personal capacity and not in their professional capacity. Like a state, a territory, such as the territory of Guam, is not considered to be a person for the purposes of section 1983.

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 A successful section 1983 claim also requires a showing of the deprivation of a constitutional or federal statutory "right."

For More See Section 1983 at the  TheFreeDictionary

Federal Practice Manual for Legal Aid Attorneys » Chapter 9: Relief

9.1 damages Updated 2013 by Peter Sleasman

Circumstances in which a claim for damages may lie under 42 U.S.C. § 1983 and the defenses to such a claim.

Arbitrary & Ambiguous Audio Recording Case Law Oregon

What is the basis of law and when does the principles of the reasonable man begin to arbitrate justice? It is not in arbitrary interpretations of ambiguous and contradictory statutes.

In common law the jury has the power to decide the law according to the dictates of their conscience.  The right of juries to judge both the law and the facts -- to nullify the law if it chose were a part of British constitutional law since  the days of William Penn.

In Oregon, the Constitution states  "the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases." [Art.1, Section 16]

Juries in Oregon have the power to serve, in effect, as the final legislature of the land concerning the law in a particular case. Essentially, the law must conform with the understanding of a reasonable person.

If an electronic device is involved like a telephone, in Oregon, only one person needs to consent. This is why a 911 dispatcher can record the conversation. [City of Lake Oswego v. Mylander, 84 Or App 15, 733 P2d 455 (1987)]

Further, if you can intercept and record a police broadcast which is unscrambled  and the public has free and ready access. This is because the statute does "not apply to the receiving or obtaining of the contents of any radio or television broadcast transmitted for the use of the general public." [STATE v. BICHSEL B70 854; CA A47766.]


In Oregon Statues, however, like many States, everyone in the conversation  must be informed when their conversation is being recorded. If they are not specifically informed that their conversation is being obtained it is deemed a crime.
[STATE v. KNOBEL86-454-M; CA A43491. 777 P.2d 985 (1989). 97 Or.App. 559. ]


Here is where the arbitrary and ambiguous interpretation of the law begins to unfold. Without their knowledge or consent, you can record, including the police, over the phone or the radio. However, in public, where they have no reasonable expectation of privacy, they cannot be recorded without their knowledge?

To slightly re-frame it, it is okay to record with one person's permission what you might think is private on a phone or radio telecommunications. However, what you consider to be a public conversation with a public official, you must have the knowledge and permission of all involved. While you are being given orders by an officer who may be violating your rights, you are supposed to rouse yourself from the shock of intrusion to tell them "I am recording your conversation with me."

The statute does not prohibit taking or transcribing notes of a conversation, which are rarely accurate and subject to considerable error. However, if you have proof of the truth with a recording, it is .

The Oregon Supreme Court claims this is not over-broad nor unnecessarily over burden the First Amendment in its protection of the press' need to gather news, yet admits the police may be biased in their version of the events. [State v. Knobel, 777 P. 2d 985 - Or: Court of Appeals 1989]

Potentially, you could have a computer on the spot to parse the voice of a speaker without actually recording the voice of anyone involved. Of course, you are depending on the software to correctly interpret what is being said and that is never wholly accurate. So, then, the absurdity of inaccuracy inherent in transcribing is preferred over the best source of testimony - the original voice recording. How is the digital recording of voice materially different than taking down quotes, except for inherently having more accuracy?

At what point do the courts put the burden on public officials for what they say? When does Oregon, in fact, say, any governmental interest in protecting conversational privacy is not implicated when officials are performing duties in public places? When do we acknowledge the chilling effect of criminalizing public recordings unnecessarily restricts First Amendment rights to a free press?

[Am. Civil Liberties Union of IL v. Alvarez]
[Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011]
[733 F. Supp. 465: Connell v. Town of Hudson 1990]
Gazette Publishing Co. v. Cox, Cause No. IP 65-C-528 (S.D.Ind. May 2, 1967).
[Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 638 (D. Minn. 1972)]

GLIK V CUNNIFFE: Held private citizen has the right to record video/audio of officials in a public place.

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) was a case at the United States Court of Appeals for the First Circuit that held that a private citizen has the right to record video and audio of public officials in a public place, and that the arrest of the citizen for a wiretapping violation violated the citizen's First and Fourth Amendment rights.
http://scholar.google.com/scholar_case?case=10945354769903429853&q=Glik+v.+Cunniffe

As he passed the Boston Commonon October 1, 2007, Simon Glik witnessed three police officers arresting an individual.  After hearing one bystander say to the officers, “You are hurting him, stop,” Glik began recording the arrest with his cell phone camera.  

When the officers handcuffed the suspect, one of the officers turned to Glik to say, “I think you have taken enough pictures.”  Glik responded: “I am recording this. I saw you punch him.”  

After Glik said his recording captured sound, the officers arrested Glik for unlawful audio recording in violation of Massachusetts’s wiretap statute.  While detained at the South Boston police station, officers confiscated Glik’s cell phone and a computer flash drive as evidence.

The District Attorney charged Glik with violating the wiretap statute, disturbing the peace, and aiding the escape of a prisoner.  The Commonwealth voluntarily dismissed the charge of aiding in the escape of a prisoner. 

The Boston Municipal Court, in February 2008, granted Glik’s motion to dismiss the final two charges: disturbing the peace, and violating the wiretap statute.  The judge found that Glik’s exercise of his First Amendment right to film police did not disturb the peace, noting the officers’ dislike of Glik’s recording did not make this constitutionally protected activity unlawful.  

The judge also dismissed the wiretap charge for lack of probable cause because the statute requires a secret recording and the officers admitted Glik had recorded openly and in plain view.

In Glik v. Cunniffe, the First Circuit answered the question of whether police officers could invoke qualified immunity after arresting a citizen for openly recording the officers’ arrest of an individual on Boston Common.

Simon Glik, a Boston attorney wrongly arrested and prosecuted for using his cell phone to record police officers forcefully arresting a man on the Boston Common, has reached a settlement with the City of Boston on his civil rights claims. The settlement requires the City to pay Glik $170,000 for his damages and legal fees. 

https://www.aclum.org/news_3.27.12

AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS V.ALVEREZ: Public Video/Audio Taping of Police and Other officials

Public Videotaping of Police and Other  Officials: "Any governmental interest in protecting conversational privacy is not implicated when officers are performing duties in public places." Am. Civil Liberties Union of IL v. Alvarez
https://www.youtube.com/watch?v=hheZHNDfmPk

http://law.justia.com/cases/federal/appellate-courts/ca7/11-1286/11-1286-2012-05-08.html
https://www.youtube.com/watch?v=2DxItZb1RIM

https://www.youtube.com/watch?v=JmxHPJxBYIM

42 U.S. Code § 1983 - Civil action for deprivation of rights

42 U.S. Code § 1983 - Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

 http://www.law.cornell.edu/uscode/text/42/1983

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW: Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW

Summary:

Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

http://www.justice.gov/crt/about/crm/242fin.php

CONSPIRACY AGAINST RIGHTS - Section 241 of Title 18

CONSPIRACY AGAINST RIGHTS

Summary:
Section 241 of Title 18 is the civil rights conspiracy statute. Section 241 makes it unlawful for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same). Unlike most conspiracy statutes, Section 241 does not require that one of the conspirators commit an overt act prior to the conspiracy becoming a crime.

The offense is punishable by a range of imprisonment up to a life term or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

TITLE 18, U.S.C., SECTION 241

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or Distrct in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;...

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

http://www.justice.gov/crt/about/crm/241fin.php

ROBINSON v. FETTERMAN: Free speech right to film police officers in the performance of their public duties.

In Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D. Pa. 2005), the court ruled that there is a free speech right to film police officers in the performance of their public duties. Robinson claimed to be concerned about the way police were conducting truck inspections on a local road, so he decided to document their behavior by filming them from an adjacent property. Robinson videotaped from a position approximately 20 to 30 feet from the highway and never physically interfered with police activities. The police told him to knock it off and, when he refused, they arrested him for harassment.

Robinson was convicted of harassment, but the conviction was overturned on appeal, and Robinson filed a § 1983 action against the troopers. The judge found that no officer could reasonably believe that Robinson was violating the Pennsylvania harassment law. The court ruled against the troopers and took the rare step of awarding punitive damages against the individual officers in addition to general compensatory damages.

Robinson v. Fetterman, 378 F. Supp. 2d 534 - Dist. Court, ED Pennsylvania 2005

42 U.S. Code § 1983 - Civil action for deprivation of rights

http://www.law.cornell.edu/uscode/text/42/1983

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

 

UNITED STATES V. WURIE: Do Cops Need a Warrant to Search Your Cellphone When You're Under Arrest?

Do Cops Need a Warrant to Search Your Cellphone When You're Under Arrest?

QUESTION PRESENTED:

Whether the Fourth Amendment permits the police, without obtaining a warrant, to 

review the call log of a cell phone found on a person who has been lawfully arrested. 

No. 13-212

Title:

United States, Petitioner

v.

Brima Wurie

Docketed: August 15, 2013

Lower Ct: United States Court of Appeals for the First Circuit

  Case Nos.: (11-1792)

  Decision Date: May 17, 2013

Questions Presented

~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~

Aug 15 2013 Petition for a writ of certiorari filed. (Response due September 16, 2013)

Sep 6 2013 Order extending time to file response to petition to and including October 16, 2013.

Oct 8 2013 Order further extending time to file response to petition to and including November 15, 2013.

Nov 15 2013 Brief of respondent Brima Wurie in opposition filed.

Nov 15 2013 Motion for leave to proceed in forma pauperis filed by respondent Brima Wurie.

Nov 20 2013 DISTRIBUTED for Conference of December 6, 2013.

Nov 20 2013 Reply of petitioner United States filed. (Distributed)

Dec 31 2013 DISTRIBUTED for Conference of January 17, 2014.

Jan 17 2014 Motion for leave to proceed in forma pauperis filed by respondent GRANTED.

Jan 17 2014 Petition GRANTED.

Feb 11 2014 SET FOR ARGUMENT ON Tuesday, April 29, 2014

Feb 21 2014 Record received from U.S.C.A. 1st Circuit, (1 envelope) part of this record is SEALED. All other filings of this record is available electronically through PACER.

Mar 3 2014 Joint appendix filed.

Mar 3 2014 Brief of petitioner United States filed.

Mar 5 2014 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from the respondent.

Mar 6 2014 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioner.

Mar 7 2014 Brief amici curiae of Criminal Law Professors in support of private parties filed. VIDED. (Distributed)

Mar 10 2014 CIRCULATED.

Mar 10 2014 Brief amici curiae of Center for Democracy & Technology, and Electronic Frontier Foundation in support of Riley and Wurie filed. VIDED. (Distributed)

Mar 10 2014 Brief amici curiae of American Library Association, and The Internet Archive in support of Riley and Wurie filed. VIDED. (Distributed)

Mar 10 2014 Brief amici curiae of National Press Photographers Association, et al. filed. VIDED. (Distributed)

Mar 10 2014 Brief amici curiae of Professors Charles E. MacLean & Adam Lamparello filed. VIDED. (Distributed)

Mar 10 2014 Brief amicus curiae of Constitutional Accountability Center in support of Riley and Wurie filed. VIDED. (Distributed)

Apr 2 2014 Brief of respondent Brima Wurie filed. (Distributed)

Apr 9 2014 Brief amici curiae of National Association of Federal Defenders, et al., filed. (Distributed).

Apr 9 2014 Brief amici curiae of Downsize DC Foundation, et al., filed. (Distributed).

Apr 9 2014 Brief amicus curiae of Cato Institute filed. (Distributed)

Apr 9 2014 Brief amici curiae of Southwestern Law Student Anna Aran, et al. filed. (Distributed)

Apr 9 2014 Brief amicus curiae of The Rutherford Institute filed. (Distributed)

Apr 22 2014 Reply of petitioner United States filed. (Distributed)

Apr 29 2014 Argued. For petitioner: Michael R. Dreeben, Deputy Solicitor General, Department of Justice, Washington, D. C. For respondent: Judith H. Mizner, Assistant Federal Public Defender, Boston, Mass.

~~Name~~~~~~~~~~~~~~~~~~~~~   ~~~~~~~Address~~~~~~~~~~~~~~~~~~   ~~Phone~~~

Attorneys for Petitioner:

Donald B. Verrilli Jr. Solicitor General (202) 514-2217

    Counsel of Record United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC  20530-0001

SupremeCtBriefs@USDOJ.gov

Party name: United States

 

Michael R. Dreeben Deputy Solicitor General (202) 514-2201

Department of Justice

Washington, DC  20530

michael.r.dreeben@usdoj.gov

Party name: United States

Attorneys for Respondent:

Judith H. Mizner Assistant Federal Public Defender (617) 223-8061

    Counsel of Record Federal Defender Office

51 Sleeper Street, 5th Floor

Boston, MA  02210

judith_mizner@fd.org

Party name: Brima Wurie

Other:

Anand Agneshwar Arnold & Porter LLP (212) 715-1000

399 Park Avenue

New York, NY  10022

anand.agneshwar@aporter.com

Party name: The Rutherford Institute

 

James J. Berles Assistant Professorof Law (260) 422-5561

Indiana Tech Law School

1600 East Washington Street

Fort Wayne, IN  46803

JJBerles@indianatech.edu

Party name: Professors Charles E. MacLean & Adam Lamparello

 

Tillman J. Breckenridge Reed Smith LLP (202) 414-9200

1301 K Street, NW

Washington, DC  20005

tbreckenridge@reedsmith.com

Party name: Criminal Law Professors in support of private parties

 

Robert L. Corn-Revere Davis Wright Tremaine, LLP (202) 973-4200

1919 Pennsylvania Avenue, N.W., Suite 800

Washington, DC  20006-3401

bobcornrevere@dwt.com

Party name: National Press Photographers Association, et al.

 

Michael M. Epstein Amicus Project at Southwestern Law School 213-738-6774

3050 Wilshire Blvd.

Los Angeles, CA  90010

amicusproject@swlaw.edu

Party name: Southwestern Law Student Anna Aran, et al.

 

Jeffrey T. Green Sidley Austin LLP (202) 736-8000

1501 K Street, N.W.

Washington, DC  20005

jgreen@sidley.com

Party name: National Association of Federal Defenders, et al.,

 

James W. Harper Cato Institute (202) 842-0200

1000 Massachuetts Ave., N.W.

Washington, DC  20001

jharper@cato.org

Party name: Cato Institute

 

William M. Jay Goodwin Procter LLP (202) 346-4000

901 New York Avenue, N.W.

Washington, DC  20001

wjay@goodwinprocter.com

Party name: American Library Association, and The Internet Archive in support of Riley and Wurie

 

Andrew J. Pincus Mayer Brown LLP (202) 263-3000

1999 K Street, NW

Washington, DC  20006-1101

apincus@mayerbrown.com

Party name: Center for Democracy & Technology, and Electronic Frontier Foundation

 

Herbert W. Titus William J. Olson, PC (703) 356-5070

370 Maple Avenue West, Suite 4

Vienna, VA  22180 - 5615

wjo@mindspring.com

Party name: Downsize DC Foundation, et al.,

 

Elizabeth B. Wydra Constitutional Accountability Center (202) 296-6889

1200 18th St., N.W., Suite 501

Washington, DC  20036

elizabeth@theusconstitution.org

Party name: Constitutional Accountability Center Constitutional Accountability Center

UPDATE:Held: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. 

http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

RILEY V. CALIFORNIA: Do Cops Need a Warrant to Search Your Cellphone When You're Under Arrest?

First, once a cell phone is securely in police
control, neither of the reasons identified in Chimel v.
California, 395 U.S. 752 (1969), for conducting
searches incident to arrest justifies searching the
phone’s digital contents. Second, the profound
privacy concerns attendant to cell phones make it
unreasonable for police officers to search digital
content without a warrant.

Do Cops Need a Warrant to Search Your Cellphone When You're Under Arrest?

Riley v. California

Does the Fourth Amendment permit police officers to perform a warrantless search of an individual’s cell phone confiscated at the time of an arrest?

In August 2009, David Riley was stopped in San Diego, California for expired car license tags on his car and a suspended driver’s license. The officer impounded Riley’s car and conducted a warrantless search of the car. The officer found two handguns linked to a shooting a few weeks prior. During the arrest, the officers went through the data on Riley’s smartphone seized without a warrant. Data on the phone linked Riley to gang activity and the shooting. It was entered into evidence at the trial. Riley was convicted on three charges. Riley argued allowing police officers to search through data on his cell phone without a warrant violated his right to be secure in his person and papers. California argues police officers need to be able to confiscate cell phones without a warrant for safety reasons and to prevent destruction of evidence. The Supreme Court’s decision in this case will affect the balance between those exigent circumstances and the scope of Fourth Amendment protection available to personal technology. 

  

DETAILS

On August 2, 2009 around 2:30 p.m., David Riley, an alleged member of the Lincoln Park gang, was parked in a San Diego neighborhood with his girlfriend and three other men. When a member of a rival gang, Mr. Webster, drove through the nearby intersection, the three men near Riley’s car fired multiple shots into Mr. Webster’s car. 

After Mr. Webster’s car crashed, the three nearby shooters got into Riley’s car, an Oldsmobile, and drove away. Eyewitnesses to the shooting claimed that Riley could have been one of the shooters but declined to give a definitive positive identification of Riley as one of the shooters. Police found Riley’s Oldsmobile in a known Lincoln Park gang area the next day almost completely hidden.

When Riley was pulled over on August 22, 2009 for expired registrations tags in his second car, a Lexus, San Diego Police Officer Dunnigan also found that Riley was driving with a suspended driver’s license. San Diego Police Department’s policy is to tow and impound a vehicle after stopping a driver with a suspended license to prevent the driver from driving again. Policy dictates that the police must perform an inventory search of the vehicle. In this case it led to the discovery of two handguns. Ballistic testing confirmed them to be the weapons used in the August 2nd shooting of Mr. Webster. However, this information was unknown by Officer Dunnigan at the time of Riley’s traffic stop.

Police placed Riley under arrest and searched his cell phone without a warrant based on the discovery of the guns and other gang paraphernalia during the vehicle search. Search of the cell phone yielded information indicating Riley was a member of the Lincoln Park gang. The evidence included pictures, cell phone contacts, text messages, and video clips. Also in the photos was a picture of the Oldsmobile in the shooting of Mr. Webster. Riley moved to suppress the cell phone evidence at the trial level. However, the judge permitted this evidence in both the first trial and on retrial. Ultimately, Riley was convicted on three charges and the California Court of Appeal affirmed the judgment.

PRIVACY VERSUS SAFETY

An argument favor of Riley is smart phones simply contain too much personal information to be legally searched by police without a warrant. The American Library Association contends constitutional protections will be surrendered if police can search the smart phone of every American arrested without a warrant. Half of all adults in the United States own smart phones. Smart phones, the Association argues, reveal the most private thoughts of the average American, containing extensive records of the books read, websites visited, and conversations with friends and family of the owner. If police are able to go through the massive amounts of data stored on most smart phones upon arrest, then police offers will utilize this data in pursuit of aggressive investigation techniques. The DKT Liberty Project adds that smart phones have become a modern repository for thoughts, and often contain intimate and intensely private information. Smart phones are every bit as sophisticated as personal computers. They need to be treated as such and can be thought of as a window into the owner’s mind. Something so personal and extensive cannot be allowed to be confiscated and searched during routine police procedures that do not require a warrant.

The Respondent, the State of California, claim it is necessary for police officers to confiscate cell phones without warrants because they pose a significant threat to officers’ safety. California points to the possibility of devices being rigged to detonate remotely or explode when a specific action is carried out on the phone while in the owner’s possession. California also contends cell phones can be used by their owners to call for assistance, which can cause a potentially immense threat to officers as well as the public. 

Additionally, while the Petitioner views the sophistication of smart phones as reason not to confiscate them, the State warns that smart phones can be used to track their owners, helping those who wish to frustrate the officers’ intentions and assist the owner without the owner having actively called for backup in any way. 

Examination of the phone would allow officers to identify whether the phone has been weaponized or used in a way that might compromise the safety of the officers or the public. California also contends, cell phones can be used to help police officers quickly confirm the identity of their owners, which is often an immediate concern. California claims it is necessary for police officers to confiscate cell phones immediately, without a warrant, in order to preserve evidence before owners delete valuable data.

ANALYSIS

In this case, the Supreme Court will decide whether cell phones can be subject to warrantless searches incident to an arrest. The Fourth Amendment prevents unreasonable searches and seizures; however, a search incident to arrest has been ruled reasonable. This search has traditionally extended to any objects on an individual or within reach. 

LIMITS ON WHAT CAN BE SEARCHED DURING AN ARREST?

In People v. Diaz, the California Supreme Court ruled police officers can “rummage” through the digital contents of a smartphone during an arrest or traffic stop. Riley argues that while searches incident to arrest are an exception to the warrant requirement, the exception was granted to further the government interests of officer safety and preservation of evidence, neither of which were implicated by the digital contents of the smartphone here. Riley argues that the digital contents of a smartphone do not threaten officer safety because they are not containers which could hold harmful physical objects. 

A cell phone does not need to be searched in order to preserve data, because the data will still be on the phone once a warrant is obtained and steps can be taken, such as the use of a Faraday, to prevent the erasure of data. 

Riley also argues that limiting searches of smart phones to situations where an officer believes that the phone may contain evidence of a crime would not solve these constitutional problems. This limitation, in Riley’s view, would still allow officers to examine the content of cell phones at their discretion if they have a reasonable belief that there is evidence of a crime, and this subjectivity would not prevent violations of constitutional rights.

California counters that United States v. Robinson outlines a clear, categorical rule that allows any item in an individual’s possession at the time of arrest to be subject to search. California contends that this rule stems from the government’s interest in officer safety, and that a large body of cases allow officers to search areas that might present a danger. 

The State argues that over time, the search rule has evolved to allow searches incident to arrest, including the arrestee himself and the area around him. The States further argues that the bright-line Robinson rule was based on concerns for officer safety and the preservation of evidence, and that Riley ignores these two justifications. California argues that even if the rule is not applied broadly here, the cell phone in this case was subjected to a legitimate search because a cell phone can pose a safety threat to officers if it is rigged to remotely detonate a bomb or if it has been used to call for back-up. Furthermore, California asserts that preservation of evidence should be considered here, and that police officers should search cell phones to prevent the remote erasure of data and the deletion of data that is time sensitive.

Riley argues once the police have exclusive control over items they have taken from an arrestee, the items are no longer a safety hazard to the police, and are not in danger of being destroyed by the arrestee. There was no justifiable reason to search his phone without a warrant. 

Riley maintains that the remoteness limitation on searches incident to arrest should apply here because the officer who searched his phone at the station had no reason to do so without a warrant. Further, Riley states that while objects on an individual in police custody can be seized for administrative processing, the search here was investigative, not administrative, and unjustified.

DOES THE DATA ON A CELL PHONE RENDER A SEARCH OF IT UNREASONABLE? 

Riley argues that even if searching the digital contents of a cellphone serves a legitimate government interest, such a search is unreasonable because it violates personal privacy to an unprecedented degree. While an arrested individual may be deprived of the privacy interest in his clothes and items on him, it does not allow the government to conduct a search of the personal information on his phone. Information  now contained on cell phones was once contained within the safety and privacy of one’s home. Because modern phones contain more information than could ever be carried before, unbounded searches through that extensive digital record cannot be allowed. 

Furthermore, the information on cell phones implicates First Amendment concerns of free expression and free association, because the search and seizure of expressive materials such as contact lists and phone call records must be particularized in order to avoid the violation of First Amendment rights. Riley argues that it is unreasonable to search personal communications incident to arrest because the search would expose protected communications to scrutiny without the proper justification provided by a warrant.

http://www.law.cornell.edu/supct/cert/13-132

Jim Harper, Ilya Shapiro and Gabriel Latner, Riley v. California, The Cato Institute (March 10, 2014).  

Robert Barnes, Supreme Court to Decide Case on Police Cellphone Searches, Washington Post (Jan. 17, 2014).  

.
CERT. GRANTED 1/17/2014
QUESTION PRESENTED:
Whether or under what circumstances the Fourth Amendment permits police officers
to conduct a warrantless search of the digital contents of an individual's cell phone seized
from the person at the time of arrest.

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-132.htm

No. 13-132
Title:	David Leon Riley, Petitioner v. California
Docketed:	July 31, 2013
Lower Ct:	Court of Appeal of California, Fourth Appellate District, Division One

Case Nos.:	(D059840)
Decision Date:	February 8, 2013
Discretionary Court
Decision Date:	May 1, 2013
Questions Presented

~~~Date~~~	~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Jul 30 2013	Petition for a writ of certiorari filed. (Response due August 30, 2013)
Aug 12 2013	Waiver of right of respondent California to respond filed.
Aug 15 2013	Consent to the filing of amicus curae briefs, in support of either party or of neither party, received from counsel for the petitioner.
Aug 21 2013	DISTRIBUTED for Conference of September 30, 2013.
Aug 30 2013	Brief amici curiae of Center for Democracy & Technology and Electronic Frontier Foundation filed. (Distributed)
Aug 30 2013	Brief amicus curiae of Constitutional Accountability Center filed.
Aug 30 2013	Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
Sep 3 2013	Response Requested . (Due October 3, 2013)
Sep 27 2013	Brief of respondent California in opposition filed.
Oct 16 2013	Reply of petitioner David Leon Riley filed.
Nov 20 2013	DISTRIBUTED for Conference of December 6, 2013.
Dec 3 2013	Record Requested .
Dec 23 2013	Record received. California Court of Appeal for the Fourth Appellate District and San Diego Superior Court (1 box)
Dec 31 2013	DISTRIBUTED for Conference of January 17, 2014.
Jan 17 2014	Petition GRANTED limited to the following question: Whether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights.
Feb 11 2014	SET FOR ARGUMENT ON Tuesday, April 29, 2014
Feb 18 2014	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioner.
Feb 19 2014	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, rece8ved from counsel for the respondent.
Mar 3 2014	Joint appendix filed. (Statement of costs filed.)
Mar 3 2014	Brief of petitioner David Leon Riley filed.
Mar 7 2014	Brief amici curiae of Criminal Law Professors in support of private parties filed. VIDED. (Distributed)
Mar 7 2014	Brief amici curiae of American Civil Liberties Union, et al. filed. (Distributed)
Mar 10 2014	CIRCULATED.
Mar 10 2014	Brief amici curiae of American Library Assciation, and The Internet Archive in support of Riley and Wurie filed. VIDED. (Distributed)
Mar 10 2014	Brief amicus curiae of Constitutional Accountability Center in support of Riley and Wurie filed. VIDED.
Mar 10 2014	Brief amici curiae of Center for Democracy & Technology, and Electronic Frontier Foundation in support of Riley and Wurie filed. VIDED. (Distributed)
Mar 10 2014	Brief amicus curiae of National Association of Criminal Defense Lawyers, et al. filed. (Distributed)
Mar 10 2014	Brief amicus curiae of DKT Liberty Project filed. (Distributed)
Mar 10 2014	Brief amici curiae of Electronic Privacy Information Center, et al. filed. (Distributed)
Mar 10 2014	Brief amici curiae of National Press Photographers Association, et al. filed. VIDED. (Distributed)
Mar 10 2014	Brief amici curiae of Professors Charles E. MacLean & Adam Lamparello filed. (Distributed)
Mar 10 2014	Brief amicus curiae of The Cato Institute filed. (Distributed)
Apr 2 2014	Brief of respondent California filed. (Distributed)
Apr 9 2014	Brief amicus curiae of United States filed. (Distributed)
Apr 9 2014	Brief amici curiae of Association of State Criminal Investigative Agencies, et al. filed. (Distributed)
Apr 9 2014	Brief amici curiae of Arizona, et al. filed. (Reprinted) (Distributed)
Apr 10 2014	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Apr 18 2014	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Apr 22 2014	Reply of petitioner David Leon Riley filed. (Distributed)
Apr 29 2014	Argued. For petitioner: Jeffrey L. Fisher, Stanford, Cal. For respondent: Edward C. DuMont, Solicitor General, San Francisco, Cal.; and Michael R. Dreeben, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) UPDATE: "Police officers may not confiscate or demand to view your digital photographs or video without a warrant. The Supreme Court has ruled that police may not search your cell phone when they arrest you, unless they get a warrant. Although the court did not specifically rule on whether law enforcement may search other electronic devices such as a standalone camera, the ACLU believes that the constitution broadly prevents warrantless searches of your digital data. It is possible that courts may approve the temporary warrantless seizure of a camera in certain extreme “exigent” circumstances such as where necessary to save a life, or where police have a reasonable, good-faith belief that doing so is necessary to prevent the destruction of evidence of a crime while they seek a warrant." https://www.aclu.org/criminal-law-reform/riley-v-california Held: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has beenarrested.  http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

The Citizens' Rights Watchdog: Have Rights - Will Exercise

CAN YOU SAY: I am a Citizens' Rights Watchdog. 

Natural Rights do not need a government's approval.

https://plus.google.com/communities/106622581042273676843

This website does not provide legal advice of any kind, and we cannot guarantee that the information is accurate, complete or up-to-date. Given the nature of and speed with which online communications are developed, the opinions and thoughts posted to this site are of a casual nature and may change after further reflection. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.

Since legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing on this site should be used as a substitute for the advice of competent legal counsel. The authors assume no responsibility to any person who relies on information contained on this site and disclaim all liability in respect to such information. You should not act upon information in this website without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction.

An activist exercising our 1st, 2nd, 4th, and 5th Amendment rights by normalizing their use is ensuring our freedom as much as anyone in uniform. Police who fail to do this properly with criminals end up with evidence suppressed. Both are a failure to protect public safety.

CONSPIRACY AGAINST RIGHTS

Summary:

Section 241 of Title 18 is the civil rights conspiracy statute. Section 241 makes it unlawful for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same). Unlike most conspiracy statutes, Section 241 does not require that one of the conspirators commit an overt act prior to the conspiracy becoming a crime.

The offense is punishable by a range of imprisonment up to a life term or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

TITLE 18, U.S.C., SECTION 241

     If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;...     They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

http://www.justice.gov/crt/about/crm/241fin.php

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW

Summary:

Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

http://www.justice.gov/crt/about/crm/242fin.php

POLICE HAVE  RIGHTS. READ THOUGHTFULLY:

1.  Officers have a right to, and powers of, free speech. Never interrupt  them to tell them your rights or criticize their behavior. It is better not to suppress fools to keep them silent and make us wonder. We need them to speak up and remove all doubt. 

2.  Officers have a right to give lawful orders. We do not have a duty to inform them when they have exceeded their powers. Comply with orders while stating you do not consent. 

3.  Officers have  a right to equal treatment. When they engage in behavior causing a threat to public safety, they should allowed to be sanctioned with the same laws we live under. 

4.  Officers have a right to record their official conduct while engaging the public in the course of their official duties.  They are responsible for making a true and full record of all events and making those records available to the public when their investigation is complete. 

5.  Officers have a right to stop and frisk you when they have a reasonable and articulable suspicion. When no such suspicion exists it will suppress all credibility and evidence, except that needed in civil torts to follow. 

6.  Officers have the right to hold your seized property until their investigation is complete. They have a responsibility for compensating you for any loss of the use of that property. Private property taken for public use, as evidence, constitutes a taking under the Fifth Amendment.

RULE OF THUMB ONE-The minimum range in an altercation is 21 feet. You want to be able to move out of the way and 21 feet is the minimum distance with a 2 second rule. 

RULE OF THUMB TWO-Never interview an officer at less than six feet - a lethal distance. If they move toward you, then move back and say they are intimidating you by entering your  personal space. If they continue, then they are menacing and constructively obstructing your constitutional right to be secure in your person as well as engaging in coercion. Keep moving back as you video. It will be reasonable suspicion to a jury they are engaged in an illegal activity. 

RULE OF  THUMB THREE:  Abusive language or gestures a reasonable person would understand as meant to provoke are in a grey area between the First Amendment and DISORDERLY CONDUCT you do not want to explore. However, police do not have unfettered discretion to arrest individuals for words or conduct that are simply annoying or offensive. 

City of Houston v. Hill - 482 U.S. 451 (1987)

https://supreme.justia.com/cases/federal/us/482/451/case.html

Speech is often provocative and challenging, but is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

IN OREGON

       A person commits the crime of coercion when the person compels or induces another person to engage in conduct from which the other person has a legal right to abstain, or to abstain from engaging in conduct in which the other person has a legal right to engage, by means of instilling in the other person a fear. 

     Any citizen, OR OFFICER, who attempts to coerce a person not to engage in conduct they have legal right to commits a felony.

-§ 163.275 Coercion

Ten Rules for Recording Authority Figures

1. Learn to hold the camera. Keep it focused on the action or actors and not the pavement.

2. Keep your mouth shut: Do not use abusive language or gestures a reasonable person would understand as meant to provoke.

3. Don’t be afraid to ask questions: Stick to the who, what, when, where and how, which are the basic elements of journalism interviewing.

 4. Learn the laws about public property: "Any governmental interest in protecting conversational privacy is not implicated when officers are performing duties in public places." Am. Civil Liberties Union of IL v. Alvarez.  If you are blocking pedestrian traffic while you are standing on the sidewalk, you can be cited for disorderly conduct. The First Amendment right to record does NOT give you the right to interfere in the performance of officials' duties, or violate generally applicable laws. You may still face criminal prosecution or civil liability if, while recording, you: interfere with an arrest; trespass into secure government areas or private property; fail to respond to legitimate measures by law enforcement to control riots or disturbances; or otherwise interfere with official activity or violate private rights. Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations. Professional officers  realize such operations are subject to public scrutiny, including by citizens photographing them.

5. Learn the laws about private property:People generally have an expectation of privacy when they are inside their homes.Business owners or private security guards have every right to forbid you from recording on their premises. They have no power to force you to delete your footage or confiscate your camera. If you refuse to leave, however, you can be charged with trespass on private property. 

6. Learn the laws about government-operated facilities:  Generally speaking, this is considered the same as public property. On Oct. 13, 2010, a federal judge signed a settlement in which the federal government agreed that no federal statutes or regulations bar photography of federal courthouses from publicly accessible property. 

7. Learn your state’s wiretapping laws: It is legal to audio record police in public in all 50 states because they do not have an expectation of privacy. Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a "one-party consent" law. 19 States/Jurisdictions have "two party consent" requiring consent from all involved. SEE: 

State Law: Recording

8. Learn how to handle police intimidation:  When police stand over you with a badge, gun, handcuffs, taser gun and pepper spray, ordering you to hand over your identification and/or your camera it is an attempt to intimidate. In either case the police do not have the power to demand papers or confiscate property without probable cause that you have broken, are breaking, or will break a law. If they have an articulable reasonable suspicion and they have a statue requiring it, they may require that you give them your name and date of birth at most. Say you do not consent to identify yourself, answer questions, or a search. If they order you, then the fruits of their investigative stop will be suppressed, so they will  attempt to get voluntary compliance. 

Under the rubric of Terry v. Ohio, 392 U.S. 1 (1968), the minimal intrusion on a suspect's privacy, and the legitimate need of law enforcement officers to quickly dispel suspicion that an individual is engaged in criminal activity, justified requiring a suspect to disclose his or her name. 

In Brown v. Texas, 443 U.S. 47 (1979), the Court struck down Texas’s stop-and-identify law as violating the Fourth Amendment because it allowed police officers to stop individuals without “specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity.  http://supreme.justia.com/cases/federal/us/443/47/case.html

In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment if the statute first required reasonable and articulable suspicion of criminal involvement. Laws requiring suspects to identify themselves during investigative stops by law enforcement officers do not violate the Fourth Amendment, and do not necessarily violate the Fifth Amendment.  http://www.law.cornell.edu/supct/html/03-5554.ZS.html

9. Remain ethical and transparent: Hold yourself accountable to the fundamental ethics of journalism as much at you would police or other officials. Give your opinion do not let this get in the way of presenting the facts and allowing your followers or readers to form their own opinions.

10. Learn to edit video: Delete the portions that are interesting but, in reality, do nothing to move the story forward in video editing. A rule of thumb is to keep it three to five minutes in duration. 

Here are some links that can further help

 you understand your rights as a citizen

 journalist.

Ten Rules for Recording Cops and other Authority Figures (Citizen Journalism 101) 

Know Your Rights: Photographers

Filming and Photographing the Police

You Have Every Right to Photograph That Cop

POST Christopher Sharp v. Baltimore City Police Department, et. al. rules from the DOJ


Bert P. Krages 
Attorney at Law 
6665 S.W. Hampton Street, Suite 200 
Portland, Oregon 97223
Telephone: (503) 597-2525
Facsimile: (503) 597-2549
E-mail: krages@onemain.com
The Photographer’s Right

A Downloadable Flyer Explaining Your Rights When Stopped or Confronted for Photography  © 2003 Bert P. Krages II
Updated November 2006

Legal Handbook for Photographers: The Rights and Liabilities of Making Images (Legal Handbook for Photographers: The Rights & Liabilities of)
Third edition edition (June 1, 2012)



Public Videotaping of Police and Other  Officials: "Any governmental interest in protecting conversational privacy is not implicated when officers are performing duties in public places." Am. Civil Liberties Union of IL v. Alvarez

https://www.youtube.com/watch?v=hheZHNDfmPk
http://law.justia.com/cases/federal/appellate-courts/ca7/11-1286/11-1286-2012-05-08.html

https://www.youtube.com/watch?v=2DxItZb1RIM


Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) was a case at the United States Court of Appeals for the First Circuit that held that a private citizen has the right to record video and audio of public officials in a public place, and that the arrest of the citizen for a wiretapping violation violated the citizen's First and Fourth Amendment rights.
http://scholar.google.com/scholar_case?case=10945354769903429853&q=Glik+v.+Cunniffe

STATE  v. UNDERWOOD TC 80,1217; CA A20054; SC 28112. 648 P.2d 847 (1982)293 Or. 389
STATE of Oregon, Respondent On Review,v.Walter UNDERWOOD, Petitioner On Review.
We find that a reading of the interception statutes as a whole makes it clear that no interception occurs when one party records a communication. This reading is consistent with federal caselaw under a prior form of the federal law regarding interception of communications, former 47 U.S.C. § 605, which allowed recording with one party consent. See Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957).
We hold that when a police officer participates in a telephone communication with a person and records the communication, the evidence is not an "interception" under ORS 133.721(4) and is therefore not subject to suppression under ORS 133.735 when obtained without a court order.
http://www.leagle.com/decision/19821495648P2d847_11461.xml/STATE%20v.%20UNDERWOOD

Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.
— Judge Emory A. Plitt, Jr., Maryland v. Graber
http://www.aele.org/Md_Graber.pdf

Wherefore, the court grants the motion to  dismiss finding the Illinois Eavesdropping Statute lacks a culpable mental state and suject wholly innocent conduct to prosecution. Under Illinois Supreme Court Rule 18, the court finds the Illinois Eavesdropping Statute is unconstitutional on its face and as applied to defendant as the statute is volative of substantive due process. The court finds that the statue violates substantive due process under the Fourteenth Amendment to the United States Constitution (U.S. Const. Amend. XIV) and Article I, Section 2 of the Illinois Constitution (Ill. Const. 1970, Art. I, Sec.2). The court further finds that the statute cannot be contructed in a manner that would preserve its validity and judgement cannot rest on an  alternative ground. Notice under Illinois Supreme Court Rule 19 was given.
http://www.rcfp.org/sites/default/files/docs/20120322_135203_drew_decision.pdf

On Oct. 13, 2010, a federal judge signed a settlement in which the federal government agreed that no federal statutes or regulations bar photography of federal courthouses from publicly accessible property. It agreed to issue a nationwide directive to members of the Federal Protective Service (the agency responsible for all government buildings) instructing them about the rights of photographers. Since Musumeci had been charged with violating a regulation that applied to all federal property, not just courthouses, the NYCLU hold the position that the settlement in effect covers photography og all federal buildings.
http://www.nyclu.org/files/releases/Final_Stip_and_Order_10.18.10.pdf
http://www.nyclu.org/files/releases/FPS%20Photography%20Bulletin%208-2-2010%20(redacted).pdf
http://www.photoattorney.com/wp-content/uploads/2011/02/Photographing-the-Exterior-of-Federal-Buildings.pdf
http://www.rcfp.org/newsitems/docs/20111027_171350_aclu_complaint.pdf

http://documents.latimes.com/aclu-photographers-lawsuit/

ILLINOIS V. CHRISTOPHER DREW
Wherefore, the court grants the motion to  dismiss finding the Illinois Eavesdropping Statute lacks a culpable mental state and suject wholly innocent conduct to prosecution. Under Illinois Supreme Court Rule 18, the court finds the Illinois Eavesdropping Statute is unconstitutional on its face and as applied to defendant as the statute is volative of substantive due process. The court finds that the statue violates substantive due process under the Fourteenth Amendment to the United States Constitution (U.S. Const. Amend. XIV) and Article I, Section 2 of the Illinois Constitution (Ill. Const. 1970, Art. I, Sec.2). The court further finds that the statute cannot be contructed in a manner that would preserve its validity and judgement cannot rest on an  alternative ground. Notice under Illinois Supreme Court Rule 19 was given. 

https://www.youtube.com/watch?v=QNcDGqzAB30

Wherefore, the court grants the motion to  dismiss finding the Illinois Eavesdropping Statute lacks a culpable mental state and suject wholly innocent conduct to prosecution. Under Illinois Supreme Court Rule 18, the court finds the Illinois Eavesdropping Statute is unconstitutional on its face and as applied to defendant as the statute is volative of substantive due process. The court finds that the statue violates substantive due process under the Fourteenth Amendment to the United States Constitution (U.S. Const. Amend. XIV) and Article I, Section 2 of the Illinois Constitution (Ill. Const. 1970, Art. I, Sec.2). The court further finds that the statute cannot be contructed in a manner that would preserve its validity and judgement cannot rest on an  alternative ground. Notice under Illinois Supreme Court Rule 19 was given. 
http://www.rcfp.org/sites/default/files/docs/20120322_135203_drew_decision.pdf

41 CFR 102-74.420 - What is the policy concerning photographs for news, advertising or commercial purposes?
§ 102-74.420 What is the policy concerning photographs for news, advertising or commercial purposes?
Except where security regulations, rules, orders, or directives apply or a Federal court order or rule prohibits it, persons entering in or on Federal property may take photographs of—
(a) Space occupied by a tenant agency for non-commercial purposes only with the permission of the occupying agency concerned;
(b) Space occupied by a tenant agency for commercial purposes only with written permission of an authorized official of the occupying agency concerned; and
(c) Building entrances, lobbies, foyers, corridors, or auditoriums for news purposes.

http://www.law.cornell.edu/cfr/text/41/102-74.420

Privacy Protection act 1980
The Privacy Protection Act of 1980 ("PPA"), codified at 42 U.S.C. § 2000aa et seq., protects journalists from being required to turn over to law enforcement any work product and documentary materials, including sources, before it is disseminated to the public. Journalists who most need the protection of the PPA are those that are working on stories that are highly controversial or about criminal acts because the information gathered may also be useful for law enforcement. For instance, a criminal suspect may talk openly to a journalist who promises not to print her name, but will not go to law enforcement for fear of arrest. While law enforcement would like to obtain this type of information from a journalist, the PPA protects the journalist's freedom to publish such information under the First Amendment without government intrusion.
http://www.law.cornell.edu/uscode/text/42/2000aa

42 U.S. Code § 2000aa - Searches and seizures by government officers and employees in connection with investigation or prosecution of criminal offenses
(a) Work product materials
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if—
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, or section 2274, 2275, or 2277 of this title, or section 783 of title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of title 18); or
(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.
(b) Other documents
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials, other than work product materials, possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if—
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, or section 2274, 2275, or 2277 of this title, or section 783 of title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of title 18);
(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being;
(3) there is reason to believe that the giving of notice pursuant to a subpena duces tecum would result in the destruction, alteration, or concealment of such materials; or
(4) such materials have not been produced in response to a court order directing compliance with a subpena duces tecum, and—
(A) all appellate remedies have been exhausted; or
(B) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings relating to the subpena would threaten the interests of justice.
(c) Objections to court ordered subpoenas; affidavits

In the event a search warrant is sought pursuant to paragraph (4)(B) of subsection (b) of this section, the person possessing the materials shall be afforded adequate opportunity to submit an affidavit setting forth the basis for any contention that the materials sought are not subject to seizure.

A subpoena duces tecum (or subpoena for production of evidence) is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial.