Can the police confiscate my cellphone? Criminal defense attorney explains the rules.

Law Office of David P. Shapiro
3500 5th Avenue, Suite 304,
San Diego, CA 92103
619-295- 3555

Cory – I was videotaping a traffic stop with my cellphone when one of the police officers came over and demanded I surrender my phone. I said no at first but they started threatening to arrest me for interfering with the stop so I handed it over and they went through my whole phone. Can the police take away your cellphone like that?

Full transcription:
- [Host] We're with David Shapiro, he's a Criminal Defense Lawyer in San Diego, California. He's agreed to answer an online question, we actually have multiple questions, or similar questions that's related to can police seize your phone? Or can they look through your phone? So, we're just going to go with one of the questions that was posted, and maybe David can explain to us the rules associated with it. This question was from Corey: Corey says, "I was videotaping a traffic stop with my cellphone when a police officer came over and demanded I surrender my phone. I said no, at first, but they started threatening to arrest me for interfering with a stop, so I handed it over and they went through my whole phone. Can the police take away your phone like that?"

- [David] Well, I mean, they can, as it seems they did. How legal that was is a whole other issue. I think their best argument, they being the police, would be that they were seizing evidence that they believe to evidence of a crime, or of a police investigation. The tricky part comes in as to them actually accessing it on your phone, and them going through your phone. Now, if they go through your phone and they don't find anything on your phone that is ultimately going to be used in prosecution against you, then you really don't have a Fourth Amendment claim against unreasonable searches and seizures, because there's nothing to suppress or keep out of evidence, if no charges have been filed against you. Your remedy may be civil, in a civil forum. But if they were to seize your phone, and go through it without a warrant, or without your consent, and then try and use what they found in a criminal case against you, then you would have a realistic, if not a really good shot, at trying to get that evidence suppressed because, particularly the last couple of years the laws have changed and strengthened for the criminally accused as it relates to cell phones. As we currently stand, they can certainly seize a cellphone for a number of reasons. The issue is, can they go through your cell phone, without your consent or without a warrant? One of the cases is called Riley, it's out of California actually, and in south San Diego in particular, so we're pretty familiar with that out in San Diego. The other issue is, again going through with that, what happens if you have a pass code, and there's a warrant for them to go through your phone, but you don't give them your pass code. Can a judge order you to reveal your pass code? That's sort of an unsettled area of law, which I'm sure is going to change by the time we do some more of these Q and A's about this topic in a couple of months or a couple of years down the road. So it's an ever-changing law, but to answer your question, I believe they can seize your phone. The issue is, can they go through it without your consent or without a warrant?

- [Host] Excellent! Well, if you have any other questions David on this topic, just post in the comment section below, and he's agreed to get back to you. Thanks, David.

- [David] I definitely will. And I can be reached, again, at 619-295-3555.

[lowend]

Can they seize a minor’s phone without a warrant? Or parents present??

[nickabel]

The fact we can be punished without being Proven guilty...

[TheDrumPitt]

Can a officer/detective delete messages off your cell phone while it is in evidence? Thank you

[willbill]

I saw a cop take someones phone, ask for the password then started guessing until the phone locked up because they refused.

[themeans]

What if I took your phone while you're recording to try to keep from being recorded and recorded stop 2 different phones and 2 different videos I started they took one and then they're like wool word that other 1 come from because I pulled it out of my pocket

[larryjanson]

I will not just hand over my phone.
I will not give them any passwords.
I will ask if i am free to go. if i am then i want my property given back to me right now.
if not free to go. I will ask if i am under arrest.
if so then i will shut up till after i talk to my lawyer.

[iamlove]

Also I cannot find anywhere on YouTube if a police can give your number to people who hit you in an accident …. Where is that info?

[andersonbrent]

Look up the privacy protection act of 1980

[meyou]

So if they find not they didn't infringe your rights? F that you lawyers can't help really