Attorney Question of the Month
We often field questions from members about how their family or associates should notify the Network on the member’s behalf after a self-defense incident. It has been surprising how many members had contact details stored in their smart phones and had not considered that the phone could be taken by investigating police officers, making it unavailable to the member and others who might be assigned to get legal help for them.
After initiating a discussion of post-incident planning in the September editorial in this journal we reached out to our affiliated attorneys for more input on the likelihood of a personal cell phone being available once a shooting investigation has commenced. We asked our affiliated attorneys–
Is it common for investigating police officers to take cell phones from armed citizens involved in use of force in self defense, even if the armed citizen is not taken into custody after the incident? If this is common procedure in your area, how long does it usually take for retrieval of personal items seized during an investigation? How does this vary if the person is or is not charged with a crime?
The first half of our affiliated attorneys’ responses follows. So many weighed in on procedures in their locales, that we will continue with the second half of their answers in November’s journal.
Charles C. Calenda
Inman & Tourgee
1500 Nooseneck Hill Road, RI 02816-6783
401-823-9200 or 401-229-5521
In Rhode Island, it is not uncommon for investigating officers to either request that the subject of their investigation consent to the search/seizure of their cell phone or, if the evidence is there, apply for a search warrant to search and seize the phone. Many times, it can lead to useful evidence that both sides may be able to use in an eventual prosecution.
If the device is seized by consent, I have seen the contents dumped immediately and the physical device returned immediately, although that is not the norm. If a search warrant was used to obtain the device, it may not get returned without a court order, especially if charges are filed. In Rhode Island, if charges are filed, but the phone is not returned but could not be classified as “evidence,” a motion to return seized property may properly be filed by the defense attorney either during the pendency of the case or following its conclusion. However, if the phone itself is evidence, it may never get returned unless charges are dropped or the defendant is acquitted.
If no charges were ever filed, a complaint would have to be filed in a court with equitable jurisdiction for an order to return the device. In Rhode Island, that would most likely be the Superior Court. Those motions can be heard in as little as 10 days or could drag out for months, depending on how contentious the response from the other side is.
James B. Fleming
PO Box 1569, Monticello, MN 55362
Whether they do or not is totally dependent upon the circumstances, and the policies of the authorities interacting with you. Of course, the police are required to obtain a warrant to access information stored on a cell phone, in any case, following the SCOTUS decision in Riley v. California in 2014.
In Riley, the Court held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. But the question focuses upon whether they can take possession of the phone, thus depriving the owner of access to the ability to call for legal assistance.
An individual who is “taken into custody” or “arrested”–two very different legal concepts–can expect to be deprived of their cell phone while in police custody. Might that not happen? Sure, anything is possible, but counting on that possibility would be a grave mistake.
There are simply too many fact scenarios that could play out to be able to develop a general rule. The far better plan will be to assume that the phone will not be available, and to make arrangements so that contact information for your legal team can be stored at another location where your “one phone call” to the outside world can be made to someone with access to that information, who can make the calls for you.
It is important also, to remember that calls from jails can be monitored, and recorded by the police. This is a common place occurrence. Make your call to your fall back contact short, to the point, and devoid of details about your situation and what happened. “I am in custody at this location. I need you to call attorney Sally Smith and tell her where I am. I have verbally refused to provide any statement of any kind to the authorities until my attorney is present.”
If you have done your groundwork with Sally Smith, properly, that is all she is going to need to know to get to where you are as quickly as possible and begin to do her job of representing you. And then sit back, shut up, and wait for her to arrive on the scene to do her job. You have already won the fight for your life. Now is the time to begin the fight for your future.
Kelly & Chapman
PO Box 168, Portland, ME 04101
Almost all of my work in this area has been with LEOs since Riley v. California. Generally, they do NOT seize the cellphone of the LEO. I anticipate that, if there were any reason to believe evidence was on the phone, they would seize it and NOT open it unless pursuant to a warrant. Indeed, I represented an officer whose employment was terminated, in part because he opened and went thru cellphone data without warrant, exigent circumstances or consent.
I anticipate that it would be more difficult to get a warrant without PC to establish that there was either video or audio evidence on it, or evidence of calls to accomplices or the person shot (who may NOT be a victim) or something similar. Lately, tower information has proven very prominent in trials to establish locations of defendants in homicide cases. This is far less likely to be an issue in “armed self defense” cases, absent significant time lag between incident and report, or location of defendant and shot subject leading up to the event. In that case, the cellphone of the subject shot might also be seized. This would be true if threats were claimed to have been sent from that phone.
Of course, the thing most likely to be seized is the firearm, even when the subject is an officer.
Shawn A. Kollie
Kollie Law Group, PC
40 NW Greenwood Ave. Ste. 100, Bend, OR 97701
In Oregon, law enforcement will seize a cell phone if it is highly probable that evidence of a crime would be on the phone, or if a citizen consents to that seizure. If someone is not arrested for a crime, it is extremely rare for law enforcement to seize their property. It is also rare that evidence of any “crime” will be on a cell phone in these situations. Oregon also has a statute where the citizen who has had items seized may petition the court to have them returned. The law requires that they “no longer be of evidentiary value” which is somewhat nebulous. It is often helpful to have a lawyer assist with the return of property after law enforcement has completed their investigation.
Jerome M. Brown
The Law Offices of Jerome M. Brown Esq.
1628 JFK Blvd., Ste. 1000, Philadelphia, PA 19103
It is not necessarily common or uncommon. However, if you act in self defense, and are not arrested, the police should not seize your cell phone. If this is a street incident, then the cell phone is probably irrelevant to their investigation. If they do, they need a warrant to search the contents of your cell phone under Riley v. California, 134 S.Ct. 2473, 2494 (U.S. 2014). If they take your phone, then you need to get their name and badge number and hire an attorney immediately because you may never get it back.
A big "Thank You!" to our affiliated attorneys for their contributions to this column. Please return next month for the completion of this topic.
To read more of this month's journal, please click here.