How to handle police who seize your cell phone

The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested, ruled a unanimous Supreme Court on June 25, 2014. Riley v. California, No. 13-132 and No. 13-212. 06/25/2014. http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

The court said that a warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendment’s warrant requirement. The Fourth Amendment contained in the Bill of Rights provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The court explained that a search incident to arrest be limited to the area within the arrestee’s immediate control where it is justified by the interests in officer safety and in preventing evidence destruction. The court pointed out that digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. The police may examine the phone’s physical aspects to ensure that it will not be used as a weapon, but the data on the phone can endanger no one.

Police seized Riley’s cell phone as an incident to an arrest for a traffic violation and accessed the information on the phone which linked him to a gang.

This decision has “turned the tide in protecting people’s rights,” said Noel Tipon, a partner in Bilecki and Tipon, the Premier Law Firm defending military service members in the Pacific Rim. Noel Tipon was featured in Forbes Magazine as one of America’s Premiere Experts on Health, Wealth & Success.

“This is a major victory for citizens. Before this decision, ordinary citizens, not even criminals, were being stopped, their cell phones taken, and they never saw them again. The Supreme Court put a stop to this practice,” said Tim Bilecki, one of the Top 40 Trial Lawyers in the Country under 40 Years Old, and a partner in Bilecki and Tipon. The partners devoted an hour to discussing the cell phone case on The Tipon Report, which Noel Tipon co-hosts on KNDI radio station in Honolulu.

So what do you do when the police stop you while driving and demand that you surrender your cell phone?

Should you tell him: “Nuts”, like American General Anthony Clement McAuliffe when German General Heinrich Freiherr von Lüttwitz demanded their surrender because the Germans had surrounded them during the Battle of the Bulge? (When the Germans asked what “Nuts” meant, McAuliffe’s aide said: “In plain English, Go to hell.”) S.L.A. Marshall, Bastogne: The First Eight Days.

Or should you tell the cop: the U.S. Supreme Court has ruled that you cannot take my cell phone without a search warrant. Here is a copy of the Supreme Court decision. Do you have a search warrant?

Or should you meekly surrender your cell phone without saying anything?

The most sensible approach, to avoid being a victim of false charges of resisting arrest, obstruction of justice, etc., is to do what the cops want you to do, but politely tell them that you do not agree. Then, according to Tim Bilecki, you immediately call an effective and fearless lawyer who is not afraid to tell the police that they did something wrong [not the “abogado de plead guilty”] who will file a “suppression motion,” cite the Supreme Court decision, and ask the Judge to throw out the evidence illegally seized, under the doctrine of the “fruit of the poisonous tree” (evidence obtained through illegal search and seizure must be excluded because it is the “fruit” of an illegal act. See Silverthorne Lumber Co., Inc. v. United States - 251 U.S. 385 (1920)).

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)