Attorney Question of the Month
In recent discussions with Network members about preparing their family members to notify the Network on the member’s behalf after a self-defense incident we’ve been surprised how many members had contact details stored in their smart phones and had not considered that the phone could be taken by law enforcement after a shooting. 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?
So many weighed in on procedures in their locales, that we now continue with the second half of our Affiliated Attorneys’ responses, having published the first half in October’s journal.
John I. Harris III
Schulman, LeRoy & Bennett PC
501 Union Street, 7th Floor
PO Box 190676, Nashville, TN 37219
The issue of whether and to what extent law enforcement officials can seize electronic devices (cellular phones, iPads, etc.) as part of a criminal investigation is an unsettled yet evolving area of the law nationally and in Tennessee. It is clear that trial courts, attorneys and citizens have been arguing over this issue as these devices have become commonplace in society. The problem frequently involves what is the reasonable expectation of privacy that an individual has with respect to their personal devices and data that may be intentionally or even unintentionally (GPS tracking data) stored on them.
The United States Supreme Court held in Riley v. California, 134 S. Ct. 2473 (2014) that law enforcement must have a search warrant to seize the device and search it. That decisions sets a threshold standard applicable nationally but some states may have higher standards that must be met.
Tennessee enacted Tennessee Code Annotated § 40-6-110 which provides no “law enforcement officer shall search, examine, extract or duplicate any cellular telephone data, even if incident to a lawful arrest, unless: (1) The officer has obtained a search warrant issued pursuant to this part or Rule 41 of the Tennessee Rules of Criminal Procedure; (2) The owner of the cellular telephone or the person in possession of the cellular telephone at the time it is seized gives the officer informed consent for the officer to search the cellular telephone; or (3) Exigent circumstances exist at the time of the seizure requiring the officer to search the cellular telephone.” At this time, there are no reported cases in Tennessee that address two key topics to this statute – what is required to obtain the search warrant and alternatively what constitutes exigent circumstances under this statute.
The statute does prohibit any law enforcement use of the device or data, including information discovered as a result of such access, if the protections in the statute are violated. It is also notable that the statute in Tennessee only protects a “cellular telephone” which suggests that other non-cellular electronic devices like “Fitbits,” smart watches, iPads, etc., may not be protected under this statute.
In Tennessee at present there is no affirmative duty on law enforcement to assess whether an incident is justifiable self defense. Under Tennessee law, the concept of “self defense” is actually a statutory defense to a charge of a violent crime and it is one that is not required to be considered until the trial of the case. Thus, a citizen could be exposed to tens of thousands of dollars in legal expenses and court hearings in which the issue of self defense is legally irrelevant. Efforts to legislatively change that law and to require law enforcement to evaluate on the front end the issue of self defense have been rejected by the Republican controlled Tennessee legislature (for more information please check the legislative reports issued by the Tennessee Firearms Association at tennesseefirearms.com).
If any item is seized by law enforcement, whether the person is a witness, a victim or the accused, it is not uncommon that law enforcement can and will retain possession of the item until the criminal proceedings are finally concluded if it is possible that the item may be evidence of or relating to a crime. That could span years in Tennessee.
John R. Monroe
John Monroe Law, PC
9640 Coleman Rd., Roswell, GA 30075
It is almost universal that a phone would be seized from someone who was arrested, but pretty rare to seize someone’s phone without a warrant. In order to seize the phone, the police would have to have probable cause to believe it is evidence of a crime, yet they have not made an arrest (even though they presumably know who the shooter was). If there is not sufficient evidence to make an arrest, the phone is not likely to contain anything to push the quantum of evidence over the edge. They always can get phone records and texts later.
Kevin L. Jamison
2614 NE. 56th Terrace, Kansas City, MO 64119
If the person is arrested, the cell phone is always confiscated. If the person is not arrested it will almost certainly be confiscated. In both cases a warrant is required to access the phone. The person will be asked to give written permission. Government hackers will open the phone lacking permission. It will take longer if permission is not given. Anything found on the phone will be evidence of something and it should be kept clean of secrets and vices.
The phone will be kept as long as it might possibly be needed. Even if there is no charge it can easily be held for six months or a year. It may take the prosecution that long to decide.
At the end of the festivities the detective must tell the property room that it is no longer required. This does not happen automatically. It must be requested of the detective.
When buying a cell phone, see if the insurance policy’s definition of “lost” includes confiscation. As a practical matter it does.
Alex Ooley and Mike Ooley
Boehl Stopher & Graves
400 Pearl Street, Suite 204, New Albany, IN 47150
Whether or not your cell phone is taken is going to depend greatly on the apparent credibility of your self-defense claim and also on the jurisdiction where the act of self defense takes place. In southern Indiana, where we are located, most prosecutors recognize the legitimacy of the right to self defense with a firearm. This means that, in many counties in southern Indiana, you are unlikely to be arrested where self defense seems apparent. In situations where you are not arrested, it is unlikely that your cell phone will be taken.
In fact, when I spoke to one of the local prosecutors about this subject, he indicated that it is not standard practice to take cell phones where self defense seems apparent. However, if the self-defense claim is questionable, the investigating officers will keep your cell phone until further investigation is completed. They will keep the cell phone until the prosecutor decides not to file charges or, if charges are filed, until the charges are dropped, a plea is entered, or a trial is concluded. The cell phone would be given back immediately after a finding of not guilty or a dismissal of the charges. However, achieving the dismissal can sometimes take a long time.
Obviously, the particular circumstances surrounding the incident will determine whether self defense seems “apparent” or “questionable” as dictated by the local prosecutor or law enforcement. That is why it is very important to have a firm grasp of how to handle the aftermath of a self-defense encounter. How you handle the aftermath will have a great impact on whether your self-defense claim seems credible or not. There are many things you can do to support the credibility of your claim of self defense, including how you handle the 9-1-1 call, how you handle interactions with potential witnesses, how you handle interactions with the responding officers and so forth. Many of these topics are covered by Network educational materials and other attorney question responses and are extremely important to understand.
For those of you who are worried that your cell phone will be taken and lose important contact information, you should take the advice given by Gila Hayes in her September article, Good Planning for Bad Times, which details the importance and contents of an “In Case of Emergency” file for you and your loved ones in the event you do lose your cell phone. This file should contain all of the important information you would have saved on your cell phone. By the way, it also is extremely important to make sure your cell phone is encrypted.
A big "Thank You!" to our affiliated attorneys for their contributions to this column. Please return next month when we have a new topic of discussion to take up with our affiliated attorneys.
To read more of this month's journal, please click here.