Abdul Tufa thought recording his brother’s arrest was OK. He asked Department of Public Safety officers questions on camera. He recorded them taking his brother, Amin, into custody and putting him into the back of a DPS sport utility vehicle.
Soon after, the officers began asking Abdul for his phone. They claimed his recording was evidence. Tufa attempted to throw the phone to its owner, Shamsu Said,@@not shamsu?      http://directory.uoregon.edu/telecom/directory.jsp?p=findpeople%2Ffind_results&m=student&d=person&b=name&s=+Said@@ but the phone was dropped in the process. Eventually the phone was confiscated and has not yet been returned.
Because of this and the treatment they received after the fight, Abdul and Said are planning on filing a complaint against DPS.
In January, a Eugene jury found an officer guilty of using excessive force in an arrest where a video camera had been used to record the incident by the man who was arrested. Josh Schlossberg@@http://www.oregonlive.com/pacific-northwest-news/index.ssf/2012/01/eugene_verdict_clarifies_law_p.html@@ was awarded $5,583 total in damages after a jury unanimously decided that his rights had been violated by Sgt. Bill Solesbee, who arrested him at a protest.
In that case, it was ruled that Solesbee had no right to view the video without a warrant. The present case was also one in which the one in possession of the recording device was being arrested. Although the phone belonged to Said — who was also eventually arrested — officers were unaware of it at the time.
Greg Kafoury, a Portland lawyer@@http://www.kafourymcdougal.com/about/greg-kafoury/@@ who specializes in police brutality and excessive force, said DPS could easily use a “probable cause” defense. Kafoury cited the use of security cameras in shoplifting cases, where police would be irresponsible to not take possession of the video to see the sequence of events.
If DPS officers believed the video held video of the fight, he said, they could have reason for taking the cell phone.
It all comes down to Fourth Amendment rights.
In Schlossberg’s case, U.S. District Magistrate Judge Thomas Coffin determined that the Fourth Amendment protects privacy if that expectation is “reasonable and justifiable.” He also determined that electronic devices such as Schlossberg’s holds more private information, thus requires a “higher standard of privacy.”
“I find that warrantless searches of such devices are not reasonable incident to a valid arrest absent a showing that the search was necessary to prevent destruction of evidence, to ensure officer safety, or that other exigent circumstances exist,” Coffin said. Battery life, he noted, would not qualify as an exigent circumstance.
Schlossberg’s case joins a growing stockpile of cases around the country, he wrote, that force courts to consider the warrantless police search of personal electronic devices incident to arrest. Neither the United States Supreme Court nor the Ninth Circuit have squarely considered this issue.
“I cannot comment on ongoing investigations,” DPS spokesperson Kelly McIver said.@@http://directory.uoregon.edu/telecom/directory.jsp?p=findpeople%2Ffind_results&m=staff&d=person&b=name&s=Kelly+McIver@@ “We do encourage all students to take advantage of our policies and that includes the department complaint process.”