Cell Phones, Police Recording, and the Intersection of the First and Fourth Amendments

Cell Phones, Police Recording, and the Intersection of the First and Fourth Amendments  

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Cell Phones, Police Recording, and the Intersection of the First and Fourth Amendments


The law enforcement has traditionally been mandated with the prevention, detection and investigation of criminal activities and the maintenance of public order and safety, and their effectiveness has always been pegged on the ability to gather evidence from suspects and witnesses. However, digital and mobile technologies have complicated this mandate for the law enforcement officers because it necessitates the reconsideration of individual liberties and rights such as the freedom of expression and the right to privacy. These are major tenets of democracy in the United States and well protected by the Constitution of the United States through the First and the Fourth Amendments. Often, police officers are not sure how to approach people and their cell phones during their operations while remaining lawful. Likewise, many people are not sure of their obligations and limitations in the use of their cell phones when interacting with law enforcement.     

The courts and litigants have struggled with controversy between the freedom of expression and the right to privacy in the era digital and mobile technologies and the law enforcement are increasingly being found in the center of the controversy. The conduct of the law enforcement has been placed on the legal scales in circumstances involving cell phones and other mobile devices as sources of evidence. The complexities in such cases arise from the challenges in applying the First and Fourth Amendments in the Constitution of the United States convincingly and conclusively in the era of digital and mobile technologies considering that the Constitution was formulated well before the emergence of these technologies (Dixon Jr, 2016). Often at conflict during the litigations of such cases is the applicability of the substantive values of the First Amendment versus the procedural strictures of the Fourth Amendment and different court rulings have provided diverse rulings and opinions. The ensuing discussion focuses on the different applications of the 1st and 4th amendments of the Constitution of the United States in circumstances involving the police and cell phones as gadgets that can collect, store and transmit evidence that can be used in litigation. It is expected that the understanding of these issues would facilitate the embracing of mobile and digital technologies in police work and legal practice without transgressing the 1st and 4th amendments of the Constitution, subsequently keeping law enforcement at pace with the technological advancements. In addition, it is expected that the public would be aware of their obligations and limitations related to cell phones alongside the privacy and free speech limitations that they present in law enforcement.   


An online search of published literature was undertaken to unearth the different circumstances that have converged law enforcement officers, cell phones, and the 1st and 4th amendments of the Constitution of the United States. Peer-reviewed articles, expert opinions, and judicial reviews were gathered from the internet and gauged for relevance with the issue. the different circumstances encountered by the police involving cell phones and the application of the1st and 4th Amendments, the litigations accompanying these circumstances and the diverse rulings served by the courts were identified and sorted reveal the intersections between the 1st and 4th Amendments.


The freedom of expression and the right to privacy are guaranteed by the Constitution although they can be restricted under special circumstances. The freedoms’ and rights’ restriction applicable in this study include free speech restrictions because of obscenity, incitement, defamation, and privacy is restricted if it endangers the individual and national security of the country and inconveniences comfort, convenience and safety of the public.

The applicable theories in this issue include firstly, the 1st Amendment protection of text, pictures and videos contained in personal mobile digital devices. Secondly, the collection and transmission of information using personal mobile devices constitutes free speech. Thirdly, the 1st Amendment protects the right to record public officials while on duty or matters of public interest. Fourthly, the 4th amendment protects individuals from unreasonable searches and seizures (Dixon Jr, 2016). Fifthly, the 1st Amendment interests can be afforded ‘sufficient protection’ through the 4th Amendment procedure.  

The concepts that are relevant in this study include exigent circumstances, scrupulous exactitude, substantial protections, procedural limitations, chilling effects, protected speech, prior restraint, and warrantless seizures. Digital and mobile technologies have stretched the definitions of these concepts making them applicable in the digital era despite having been conceived prior to the technological advancements.      

Research questions

This study answers the following questions

  • What are the limitations in freedom of expression and the right to privacy presented by cell phones?
  • What are the areas of intersection of the 1st and 4th Amendments in law enforcement circumstances involving cell phones?


Americans’ civil rights and liberties are guaranteed by the Constitution and in this case, they include the freedom of expression that has clauses on free speech, free press and free assembly and the right to privacy. Like in many situations, the rights and liberties of one person may conflict with those of another, often requiring the resolution through the courts (Van Tassell, 2013). In this regard, the rights of individuals possessing cell phones often conflict with the rights of police officers, and courts have been used to decide which rights override the other and the limitation of these rights when citizens interact with police officers (Van Tassell, 2013).  

Evidence from literature indicates that warrantless seizure of cell phones by police officers is a contentious issue because it invites the intersection of the 1st and 4th Amendments, with some circumstances allowing it while others violate the protected freedoms, liberties and rights of individuals. On many occasions, the judiciary has had to interpret the 1st and 4th Amendments in circumstances involving evidence collected and transmitted using mobile devices such as cell phones and the court decisions have been equally for and against warrantless seizures of these devices by the police.

Warrantless seizures of cell phones and other personal mobile devices by the police have been judged as being legal if they are switched on and displaying a clear illegality. However, the police have to get a warrant to unearth the incriminating evidence from the cell phone as illustrated in the State v. Carroll case (Reardon, 2013).

Likewise, providing consent to the police makes the warrantless seizure legal. In addition, a cell phone can be seized by the police without a warrant from an individual who has been arrested; but the police require a warrant to search the digital content inside the phone. The police must also obtain ea warrant to obtain data about a cell phone from phone providers as ruled in the Carpenter v. United States case by the Supreme Court (Greenemeier, 2017).   

In the event that the evidence held in a cell phone or other mobile device is deemed to be under an imminent threat of being destroyed by the police officer, the devices can be seized without a warrant. Nevertheless, reasonable proof that the evidence contained in the cell phone is at risk must be provided by the police officer to protect the rights of the owner and make the warrantless seizure hold legally. The Eleventh Circuit Court of Appeals during the Crocker v. Beatty case denied qualified immunity for warrantless seizure to a police officer Beatty who took a cell phone from a bystander at an accident scene without a warrant (LLRMI, 2018). The court ruled that exigent circumstances sufficient to seize a cell phone for the evidence it contains without a warrant stand when the cell phone belongs to a person likely to be implicated by the evidence and not a bystander. Therefore, the police officer was denied qualified immunity and fount to be in violation of the fourth amendment. Warrantless seizures of mobile devices can also be done at the national borders and ports of entry including airports, seaports and border crossings. However, this remains unclear for domestic passengers.    

Contrastingly, warrantless seizures of cell phones by the police have been judged as illegal if they are not included in the list of items in the warrant of search and seizure. A search warrant can be valid is it specifies the items to be seized and the place to be searched. The evidence gathers under unlawful warrantless seizures is not admissible in court under the exclusionary rule.   

Digital technologies have placed the rights of individuals and the public and those of police officers in a collision course increasingly, due to the complex interaction between 1st and 4th Amendments. For instance, the Doctrine of Prior Restraint has been influenced by the digital age with the taking of videos using a cell phone constituting protected speech whose censorship or restriction is forbidden by the First Amendment (Bendor & Tamir, 2018). The use of cell phones to record and transmit the behavior of police officers on duty is protected as freedom of expression under the First Amendment because it enables the police to be held accountable by the public, which is a 1st Amendment interest (Reardon, 2013). The Zurcher v. Stanford Daily case demonstrated that 1st Amendment interests can be sufficiently protected by 4th Amendment procedures in circumstances regarding the seizure of expressive materials although cell phone seizures the risks of prior restraint and chilling of protected speech (Reardon, 2013). Prior restraint doctrine infringes the 1st Amendment doctrine because a cell phone seizure at a crime scene inhibits the act of free speech particularly when implemented by a police officer who may be incriminated by the action. The chilling effects may result because the cell phone owner may be incriminated by the evidence in the phone as demonstrated in the United States v. Yockey case (Reardon, 2013).  

In addition, seizing a cell phone without a warrant presents an opportunity for the intersection of the 1st and 4th Amendments. Hence, the police officer in a bid to secure evidence and thus protect it from being destroyed encounters other incriminating evidence or private information upon a search into the cell phone as was indicated by the Newhard v. Borders case (Reardon, 2013). In this case, a police officer came across intimate images of the cell phone owner while performing an inventory search and went ahead to share with images with fellow officers thus violating the privacy of the cell owner and therefore protections provided by the 4th amendment (Reardon, 2013). In these circumstances, the 1st Amendment is violated when the seizure prevents the transmission of events that are of public importance while the 4th Amendment is violated when the privacy of the owner of the cell phone is violated by the police officer upon accessing the private information (Levinson-Waldman, 2016).

The intersections of 1st and 4th Amendments regarding mobile devices have not been fully addressed by the courts as they only address the issues presented to them by the litigants. The evidence indicates that courts make pronouncements on a case-by-case basis and often refer to jurisprudence and precedence to inform their declarations and judgments.                      


To avoid the violations of the 1st and 4th Amendments presented by cell phones and police work, the following recommendations are made.

Firstly, the physical seizure of cell phones should be considered unreasonable as prescribed in the Marcus v. Search Warrant case (Reardon, 2013). This would allow the 1st amendment protection on free speech to be enjoyed by the individual while enabling law enforcement to seize the contents of the cell phone through electronic transmission or duplication.

Secondly, police should consider wearing cameras on their body. These cameras are similar to those mounted on police vehicles and are used to record as well as store the activities of the police officer in the course of their duties. The information gathered by these cameras is admissible as evidence in court and often prove to be more valuable that witness accounts because of their video format. This can improve the accountability of law enforcement while providing accurate and graphical evidence about behavior of the public and police, and the use of force by the police. Additionally, this can eliminate the challenges presented by the use of personal mobile devices as sources of evidence (Lin, 2016).   

Thirdly, the Supreme Court accompany its rulings with expansive judicial opinion that addresses the issues emerging from technological advancements to enable the police perform their duties while informing the public of their limitations of civil rights and liberties. The digital and technologies are evolving fast and the issues they raise may lack sound jurisprudence or judicial precedence. As such, the courts would help interpret the law and the constitution, particularly the provisions of 1st and 4th Amendments in ambiguous and unprecedented circumstances (Reardon, 2013).     


The technological advancements present challenges in the interpretation of the Constitution as specially the 1st and 4th Amendments by police officers and the public. On one hand, the public expects the constitution to provide adequate protection of the freedom of expression and right to privacy while on the other, the police office hope that cell phones and other personal mobile devices can assist is their duties of maintaining law and order and addressing crime. The courts and particularly the Supreme Court have the pertinent duty of reinterpreting the constitution and particularly the 1st and 4th Amendments to make them applicable in the digital era. At the same time, the law enforcement should consider alternatives such as body worn cameras for police officers, which could reduce the challenges of applying the 1st and 4th Amendments provisions accompanying privately-owned mobile devices such as smartphones.   


Bendor, A. L., & Tamir, M. (2018). Prior Restraints in the Digital Age. William & Mary Bill of Rights Journal27(4), 1155-1181.

Dixon Jr, H. B. (2016). Telephone Technology versus the Fourth Amendment. Judges Journal55, 37-42.

Granot, Y., Balcetis, E., Feigenson, N., & Tyler, T. (2018). In the eyes of the law: Perception versus reality in appraisals of video evidence. Psychology, Public Policy, and Law24(1), 93-104.

Greenemeier, L. (2017). Should law enforcement need a warrant to track your cell phone? Scientific American. Retrieved from https://www.scientificamerican.com/article/should-law-enforcement-need-a-warrant-to-track-your-cell-phone/.

Levinson-Waldman, R. (2016). Hiding in plain sight: A Fourth Amendment framework for analyzing government surveillance in public. Emory Law Journal66, 527-615.

Lin, R. (2016). Police body worn cameras and privacy: retaining benefits while reducing public concerns. Duke Law & Technology Review14, 346-365.

LLRMI (2018). Eleventh circuit demise immunity for warrantless seizure of cell phone. Legal and Liability Risk Management Institute. Retrieved from https://www.llrmi.com/articles/legal_updates/2018_crocker_v_beatty/.

Reardon, C. M. (2013). Cell phones, police recording, and the intersection of the First and Fourth Amendments. Duke Law Journal, 735-779.

Van Tassell, R. G. (2013). Walking a thin blue line: Balancing the citizen’s right to record police officers against officer privacy. Brigham Young University Law Review, 1(5), 183-212.

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