Fourth Amendment Civil Suit for Deleting a Picture from the Plaintiff’s Camera

Here’s an oddball Fourth Amendment case involving an issue I have never seen litigated: How does the Fourth Amendment apply to deleting a picture from a digital camera? In Burch v. City of Florence, Ala., 913 F.Supp.2d 1221 (N.D.Ala. 2012), the police had received various complaints that the plaintiff was causing concern because he was taking pictures of lots of people and cars in town. He would apparently follow people and take lots of pictures of them, all without any apparent reason. A police officer who knew about the complaints spotted the plaintiff and pulled him over for a traffic violation. When the car was stopped, the officer saw the camera in the car. The officer grabbed the camera and started looking through its pictures. When the officer found a picture of the officer’s own license plate (of his personal car), the officer deleted the picture from the camera. The officer then let the plaintiff go. The plaintiff then filed a pro se civil suit under the Fourth Amendment, claiming that searching the camera and deleting the image violated his Fourth Amendment. The district court ruled that the search of the camera was lawful under the automobile exception because the officer had probable cause to believe that the car possessed evidence of “criminal surveillance” in violation of Alabama Code § 13A–11–32; searching the camera was allowed because the phone was a container just like any other.

The court then turned to the deletion of the photo on the plaintiff’s camera and rejected liability on the following grounds:

The next question is whether McIntyre’s deletion of the photograph of his own license plate from the digital storage device of plaintiff’s camera constituted an unlawful seizure of plaintiff’s property in violation of the Fourth Amendment. McIntyre does not even attempt to argue that his actions did not constitute a seizure under the Fourth Amendment. Instead, he asserts that, even if there was a violation of plaintiff’s Fourth Amendment rights, it is not actionable because it caused only de minimis injury. Indeed, the Supreme Court has acknowledged that there is “a de minimis level of imposition with which the Constitution is not concerned.” Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). McIntyre relies upon three Fourth Amendment cases to support his argument that the deletion of plaintiff’s photograph was only a de minimis violation.

First, in United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Supreme Court held that destruction of a small amount of cocaine powder during a field test was only a de minimis violation because “only a trace amount of material was involved,” the previous possessors of the cocaine did not appear to have noticed its loss, and the cocaine had already been lawfully detained. Id. at 125, 104 S.Ct. 1652. More recently, in Porter v. Jewell, 453 Fed.Appx. 934 (11th Cir.2012), the Eleventh Circuit addressed a Fourth Amendment seizure claim after an officer banged and kicked on the plaintiff’s door, cracking the door frame, damaging the deadbolt, and preventing the plaintiff from leaving the apartment for a short period of time. Id. at 937. Because the damage “was relatively minor and was able to be repaired within an hour,” the Eleventh Circuit found it to be de minimis and, therefore, not actionable. Id. Finally, in Williams v. Alford, 647 F.Supp. 1386 (M.D.Ala.1986), the district court addressed the plaintiff’s claim for an unreasonable search and seizure after officers executing a search warrant for cocaine left his apartment “in disarray,” knocking holes in the walls to remove plaster in search of cocaine, breaking a $300 stereo, damaging some of the other items seized, and dumping trash out of the trash can. Id. at 1391–92. Other than with regard to the stereo that was broken, the plaintiff did not provide any estimates of the extent (or dollar value) of damage to his personal property. Id. at 1392. While the district court did not use the term “de minimis,” it did acknowledge that “relatively minor tortious conduct by police officers will not negate the constitutionality of a search.” Id. (citing Gilmere v. City of Atlanta, 774 F.2d 1495, 1509 (11th Cir.1985) (Tjoflat, J., concurring in part and dissenting in part), abrogated on other grounds by Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Considering all of the circumstances, particularly the officers’ knowledge that cocaine often is hidden in unusual places and the fact that the plaintiff was able to clean up the mess “rather easily,” the Middle District court concluded that the officers’ search was reasonable and, thus, not in violation of the Fourth Amendment. Williams, 647 F.Supp. at 1392.

McIntyre asserts that his deletion of plaintiff’s photograph was only a de minimis violation because there was no monetary value associated with the deleted photograph. He also asserts that the photograph had no non-monetary value, because plaintiff’s sole purpose in taking it was to document that McIntyre was driving behind him on Dr. Hicks Boulevard, a fact that already has been established in this litigation. Finally, McIntyre relies upon plaintiff’s acknowledgment, after being pressed during deposition, that he could recreate what was lost by following McIntyre to his house and taking another photograph of the license plate, but that he did not have any desire to do so.

The court is persuaded by McIntyre’s arguments. Deleting the photograph from plaintiff’s camera amounted to no more than a de minimis violation. The photograph had little to no monetary value, no identifiable non-monetary value, and could easily have been recreated by plaintiff. Thus, McIntyre’s deletion of the photograph was akin to the destruction of trace amounts of cocaine described in Jacobsen, and significantly less severe than the property damage described in Porter and Jewell. Because McIntyre’s deletion of a single photograph from plaintiff’s digital camera constituted only a de minimis violation of plaintiff’s Fourth Amendment rights, McIntyre cannot be held liable under the Fourth Amendment for his actions.