Right to record federal agents is protected

Taylor Seely

Arizona Republic

USA TODAY NETWORK

An Arizona woman said a U.S. Customs and Border Protection officer tackled her and stole her phone when she started recording federal agents who stormed the cruise ship cabin she shared with her husband.

The agent returned it only on the condition she delete the video and clear it from her phone’s trash folder, according to the couple.

The circumstance raises questions about violations of the couple’s First and Fourth Amendment rights concerning free speech and unreasonable search and seizure.

Legal experts told The Arizona Republic, part of the USA TODAY Network, that the First Amendment protects the public’s right to film federal agents as they carry out their work, and they questioned why federal officials entered the cabin and took the woman’s phone without a proper warrant. Several urged the public to continue recording law enforcement.

'You can’t fight to protect people’s rights unless you know they’re being violated in the first place,' said Robert Frommer, senior attorney with Institute for Justice.

In the case of the cruising couple, Tammy Verhas and her husband, Jose 'Joey' Martinez, had made port in Miami when they were jolted awake by loud banging. Martinez, who said he is a U.S. citizen and U.S. Coast Guard veteran, was handcuffed and taken to a holding facility – but they let him go about an hour later. The agents had mistaken him for a man with the same name who had warrants out for his arrest.

Verhas said it was agents at the holding facility who made her delete the video, then delete it again from her phone’s 'recently deleted' backup folder, as a condition of its return. They told her she wasn’t allowed to film agents’ faces and suggested it would disrupt 'the process of investigation,' Martinez said.

The Republic asked First Amendment experts from the Cornell Law School First Amendment Clinic and the Reporters Committee for Freedom of the Press, an immigration attorney from the American Civil Liberties Union of Arizona, and a Fourth Amendment expert at Institute for Justice about your right to film federal agents. Here’s what they want you to know.

You are not allowed to interfere with federal officials and prevent them from doing their job, but 'if you are in public, you have the right to film federal agents who are doing their job,' said Daniela Del Rosario Wertheimer, attorney with the Cornell First Amendment Clinic.

If officials ask you to step back, in certain circumstances, it’s a good idea to do that, Wertheimer said. But, the right to record remains, especially if on a sidewalk or some place considered a 'traditional public forum.'

In 2018, the 9th U.S. Circuit Court of Appeals held that 'the First Amendment protects the right to photograph and record matters of public interest.' A 2010 case from the same court found the process of creating speech was entitled to the same protections as speech itself – in other words, if the video counts as protected speech, then so does the act of recording.

Any potential claims would be determined by a court, but attorneys expressed concern the couple’s constitutional rights may have been violated.

The First Amendment protects freedom of speech and freedom of the press, among other areas. It has historically been understood to protect the right to film public officers as they carry out their work because it’s a matter of public interest. The Fourth Amendment protects against unreasonable searches and seizures.

'From a Fourth Amendment perspective, the government is supposed to have real evidence that this person is a person I want to arrest. And just a name catch, especially for a common name like Jose Martinez, really calls on the officials to do more due diligence and do clearer identification. And they should be doing that prior to arrest, not after,' Frommer said.

Regarding the phone seizure, Frommer said in general, agents can take the phone of someone they are arresting but they still need a warrant to go through the device. In the case of the Arizona couple, the fact that the woman wasn’t the subject of the detention makes it unclear why officials took her phone.

'It’s important to remember, at that time, they had already realized they had the wrong man. That they made a big screwup, and they’re basically saying, ‘We’re going to continue to seize your property? We’re going to continue to hold on to your property until you delete the evidence of our wrongdoing?’ Yes, that absolutely violates the Fourth Amendment,' Frommer said.

One thing to keep in mind, however: Rules regulating federal agents tend to relax at the border and ports of entry, Wertheimer and Griffin said.

While the Fourth Amendment protects against unreasonable searches and seizures, the U.S. Supreme Court has traditionally provided law enforcement flexibility to conduct warrantless searches at the border, attorney Hillel Smith wrote in 2021.

Frommer said he did not think the border search exception would allow for CBP officials’ behavior against Martinez and Verhas.

If you encounter federal agents and think your rights are being violated, remain peaceful but make clear you do not consent to the seizure or search of a device, or the elimination of your recordings. If possible, call an attorney for guidance, Griffin told The Republic.

'It can be a hard calculus,' Griffin said, 'between protecting your rights and staying safe. But after the fact, certainly contact an attorney.'

Frommer said even those who believe they are within their rights should comply with law enforcement.

'You comply, you go along with it. And then, you make sure you publicize it. You tell other people what happened. Shine a light on the government. Because these officers, when they took the phone and told her to delete the footage, they knew what they were doing. They were trying to bury everything, and so shining a light on this ... is absolutely incumbent.'

Contributing: David Ulloa Jr., The Arizona Republic

Taylor Seely’s work as a First Amendment Reporting Fellow is funded through the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.