Victory! Tenth Circuit Finds Fourth Amendment Doesn’t Support Broad Search of Protesters’ Devices and Digital Data

In a big win for protesters’ rights, the U.S. Court of Appeals for the Tenth Circuit overturned a lower court’s dismissal of a challenge to sweeping warrants to search a protester’s devices and digital data and a nonprofit’s social media data.

The case, Armendariz v. City of Colorado Springs, arose after a housing protest in 2021, during which Colorado Springs police arrested protesters for obstructing a roadway. After the demonstration, police also obtained warrants to seize and search through the devices and data of Jacqueline Armendariz Unzueta, who they claimed threw a bike at them during the protest. The warrants included a search through all of her photos, videos, emails, text messages, and location data over a two-month period, as well as a time-unlimited search for 26 keywords, including words as broad as “bike,” “assault,” “celebration,” and “right,” that allowed police to comb through years of Armendariz’s private and sensitive data—all supposedly to look for evidence related to the alleged simple assault. Police further obtained a warrant to search the Facebook page of the Chinook Center, the organization that spearheaded the protest, despite the Chinook Center never having been accused of a crime.

The district court dismissed the civil rights lawsuit brought by Armendariz and the Chinook Center, holding that the searches were justified and that, in any case, the officers were entitled to qualified immunity. The plaintiffs, represented by the ACLU of Colorado, appealed. EFF—joined by the Center for Democracy and Technology, the Electronic Privacy Information Center, and the Knight First Amendment Institute at Columbia University—wrote an amicus brief in support of that appeal.

In a 2-1 opinion, the Tenth Circuit reversed the district court’s dismissal of the lawsuit’s Fourth Amendment search and seizure claims. The court painstakingly picked apart each of the three warrants and found them to be overbroad and lacking in particularity as to the scope and duration of the searches. The court further held that in furnishing such facially deficient warrants, the officers violated “clearly established” law and thus were not entitled to qualified immunity. Although the court did not explicitly address the First Amendment concerns raised by the lawsuit, it did note the backdrop against how these searches were carried out, including animus by Colorado Springs police leading up to the housing protest.

It is rare for appellate courts to call into question any search warrants. It’s even rarer for them to deny qualified immunity defenses. The Tenth Circuit’s decision should be celebrated as a big win for protesters and anyone concerned about police immunity for violating people’s constitutional rights. The case is now remanded back to the district court to proceed—and hopefully further vindicate the privacy rights we all have in our devices and digital data.