With phones and phone seizures in the news, I thought it might be helpful to go over what might happen to your phone (and other property) were you to be arrested. Here’s how it works.
No matter how low level the crime for which you’re arrested, police have the right to search your person and your things before they take you to the precinct. Technically, police must have probable cause to arrest you, but probable cause is in the eye of the beholder, and judges generally find that almost next to nothing gives police a sufficient basis for a search.
At the scene of the crime, even for something as incidental as a fare beat or trespass, police will conduct a pat-down search, akin to what the TSA does at the airport. If they decide to bring you to the precinct instead of issuing you a summons, you’ll then be handcuffed and put in a police car.
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Once at the precinct, the search is more thorough and far more invasive. It could even include a strip search, a humiliating experience where police compel you to pull down your pants, then crouch butt-naked facing away from them. You’ll be instructed to cough in order to see whether anything illegal is secreted where the sun don’t shine. Mostly this happens for suspected drug arrests, but I’ve seen it in other cases as well.
After you are searched, your property will be. They’ll go through your bag with a fine-tooth comb. If you’ve got a package of raisins, they’ll examine them to be sure those are all that’s in there. Do you have a choice in the search? Not really.
Certainly, if police ask to search your bag, you can refuse. But, if they take you to the precinct to book you, they have a right to search all your property under what’s called the “safekeeping” exception to needing a warrant. Safekeeping means they’re really not looking through your stuff for evidence (LOL), but they just want to make sure what you’ve got is safely kept for its eventual release to you (LOL, again). Of course, if in the course of safekeeping, they find something illegal, you’ll be charged with that as well.
Anything on your person — money, ID, medication, keys — will be taken and held either as “arrest evidence” or as “personal property.”
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If you win your case or your case is dismissed, technically you should have everything returned, but this is often a lesson in frustration and items vouchered as personal property are often misplaced, lost, or destroyed.
This brings us to your phone. Generally, once arrested, police will take your phone and keep it. However, they will need a search warrant — an order from a judge — authorizing them to search its contents before they are permitted to peruse your files, calls, and videos.
I’ve noticed more and more often how routine it is for prosecutors to be granted such search warrants even in run-of-the-mill cases where it’s unlikely anything related to the charge against you will be found. Fishing expeditions, sanctioned by the court.
I had a case where a young man was arrested for videotaping his friend being arrested outside a club in NYC. Police seized his phone. We were afraid that once they possessed the phone, the video would mysteriously disappear since it showed police acting without probable cause and then arresting my client just for videotaping the incident. Luckily, because we were dealing with an inexperienced prosecutor, we were able to go One Police Plaza ourselves to get the phone back so it went through no intermediaries, supervisors, or other enforcement personnel. The video was intact, and now forms the basis of a civil law suit for wrongful arrest.
All this is why compelling Apple to provide the key to open their phone is tricky. No one’s in favor of terrorism, but that doesn’t mean we should succumb to greater police surveillance, privacy invasion, and forced revelation of data that would otherwise be confidential in our lives.
The road to hell is paved with good intentions. Privacy is too valuable a right, and the fishing expedition such a search would entail isn’t worth the price.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at [email protected] or tonimessinalaw.com.