D.C. Appeals Court weighs whether phone seizures from 2020 protests violate Fourth Amendment

The D.C. Circuit Court of Appeals heard arguments Thursday about the constitutionally permitted length of police seizures in a case brought by protesters whose phones have been confiscated indefinitely since their arrests in the 2020 Black Lives Matter demonstrations.

The protesters want their phones back, and the central question judges sought to hammer out was when a law enforcement “seizure” must end or become a violation of the Fourth Amendment.

The American Civil Liberties Union’s D.C. chapter argued on behalf of a collection of protesters and freelance journalists that a seizure is still active, and thus must pass Fourth Amendment scrutiny, because the Metropolitan Police Department remains in possession of the phones.

Further, the ACLU argued, because the U.S. Attorney’s Office in the District either has settled or never brought criminal charges against the 40-plus people arrested, there is no investigative purpose for MPD to keep the phones.  

However, the D.C.’s Office of the Attorney General argued that the seizure itself was legitimate and the question of when a lawfully seized item must be returned to its owner is beyond the scope of the Fourth Amendment’s guarantees against “unreasonable searches and seizures.”

Appellate judges expressed some understanding of the ACLU’s position, saying the seizure could still reasonably be construed as ongoing.

“It may have been OK initially, but you’re still holding this many months later for no reason,” Senior Circuit Judge Harry Edwards said to OAG attorney Marcella Coburn.

Judge Edwards added that the government’s seizure and continued possession of the phones sounded like a Fourth Amendment problem.

Ms. Coburn countered by saying the manner in which the phones were first seized — when the protesters were accused of felony rioting in 2020 — was justified, as a district court judge agreed.

In an opinion issued last August, the U.S. District Court said case law cited by the ACLU to argue Fourth Amendment violations related to how police performed searches and seizures on those who hadn’t been accused of a crime.

But in this case, the protesters had their phones taken when arrested, meaning the case law they were citing didn’t apply.

“As discussed, every Circuit has held that the Fourth Amendment does not protect against the prolonged retention of lawfully seized property,” Judge Amit Priyavadan Mehta wrote in his opinion at the time. “Plaintiffs have not cited a single case that says otherwise.”

Appeals Court Judge Gregory Katsas on Thursday asked Ms. Coburn whether the government has an obligation to return the property it seizes from people who are arrested but not criminally charged.

Ms. Coburn agreed, but said it was applicable under Rule 41(g) of the Federal Rules of Criminal Procedure, not the Fourth Amendment grounds the plaintiffs were arguing.

She argued further that the ACLU’s position, if backed by the court, could elevate “every unreasonable refusal to return property” after a lawful seizure into a Fourth Amendment violation.

Judges were unsure whether Rule 41(g) — which stipulates that “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return” — would apply to the civil case brought by the ACLU.

ACLU attorney Michael Perloff agreed that some of the plaintiffs were confused about how to go about that process since they didn’t have criminal cases brought against them.

Mr. Perloff said the Fourth Amendment doesn’t prevent the government from holding onto property for a few hours or even days to secure a search warrant, but it does prevent law enforcement officials from keeping property as long as they please.

It has been more than three years since some of the plaintiffs were arrested in August 2020.

The plaintiff’s attorney argued that the Supreme Court has said in United States v. Place that taking someone’s property and not telling the person how to get it back infringes on their liberty “regardless of the context in which it occurs.”

“While the named plaintiffs did get their phones after months of seizure, the Metropolitan Police Department has still not given us any information indicating that it returned the phones to the rest of the protestors,” Mr. Perloff told The Washington Times in a statement.

“This is concerning because, given the pending litigation, we would think MPD would have provided us with information to that effect if the phones had been returned,” he said.

The court did not announce when it would release its decision in the case.