{"id":7248,"date":"2023-10-26T15:43:28","date_gmt":"2023-10-26T15:43:28","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=7248"},"modified":"2026-09-17T06:38:10","modified_gmt":"2026-09-17T13:38:10","slug":"seizing-a-victims-cellphone","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=7248","title":{"rendered":"Seizing a Victim\u2019s Cellphone"},"content":{"rendered":"

The question: Can officers routinely seize a victim\u2019s cell phone if they’re the victim of a drive by shooting?\u00a0 <\/strong><\/p>\n

He goes on to say, \u201cLook, I’m an officer here, working at CHP.\u00a0 And we’ve had a lot of shootings that occur in my area, right?\u00a0 So we get out there, and we have some victims on-scene.\u00a0 And their vehicle has been shot out, maybe they’re shot, maybe they go to the hospital and so forth.\u00a0 It is our routine, to seize their cell phones, to get in and get a warrant and download the cell phone from the victims.\u00a0 Sometimes the cell phone is not searched until a while later.\u00a0 They also routinely seize the motor vehicle as evidence as well.\u00a0 What do you think about that?\u201d<\/p>\n

Can you seize a cell phone under plain view?<\/h2>\n

So basically, what’s going on here is when you seize a cell phone, it’s occurring under plain view<\/a>.\u00a0 Plain view is a doctrine that allows you to seize something when you have probable cause<\/a> to believe that it’s evidence or fruits of a crime.<\/p>\n

Now, plain view doesn’t handle getting access to the items.\u00a0 So what I mean by that is, if you see a piece of evidence inside a car and you’re outside the car, and let’s say the car is in a parking lot, that’s plain view. But plain view doesn’t allow you to get into the car.<\/p>\n

What lets you reach into a car to seize evidence?<\/h2>\n

In order to get into the car, you need another doctrine.\u00a0 And use or exigency is going to be the motor vehicle exception<\/a>.\u00a0 But the point is,\u00a0plain view and plain view seizure are two different things.\u00a0 So if the officer is on-scene, and they believe that there’s evidence that can help solve this crime on the cell phone, then they are allowed to seize the cell phone under plain view.\u00a0 That is, if they have access to it, like they can see it in the person’s hand, and so forth.\u00a0 If the phone is inside a purse, then they need to also articulate exigency to grab the cell phone.<\/p>\n

Do you have probable cause just because they are the victim?<\/h2>\n

I also want to talk about; do we normally have probable cause on the drive-by shooting scenes and the victims?\u00a0 The answer is probably yes.\u00a0 But don’t think it’s automatic.\u00a0 So you have an investigator out there saying,\u00a0 \u201cHey, we get to just seize the victim’s cell phones as a matter of routine. That’s all you need.\u00a0 Because of the fact that they’re a victim, we can seize their cell phone.\u201d<\/p>\n

That is incorrect.\u00a0 When you seize somebody’s property, that’s a Fourth Amendment intrusion.\u00a0 And all Fourth Amendment intrusions have to be justified with consent, some kind of recognized exception, like plain view and exigency and so forth, or a warrant.\u00a0 So you can’t do it just because they’re the victim of a crime.\u00a0 It doesn’t make any sense.<\/p>\n

What do you have to articulate before seizing a phone?<\/h2>\n

So if you ask me, \u201cAnthony, I seized Jane Doe’s phone.\u00a0 She was the victim of a drive by shooting.\u00a0 Was it lawful?\u201d\u00a0 Before I can answer the question I have to ask you, \u201cWhy do you believe that there’s evidence of the shooting on Jane DOE’s phone?\u00a0 Why do you believe that information on that phone can help your investigation?<\/p>\n

\u201cAnthony, I believe that I can get location information because it’s unclear exactly where she was when the shooting occurred. And I can get that information because she called 911.\u00a0 After the shooting, she kept driving, she doesn’t quite know where the shooting occurred.\u00a0 Our detectives can get that location information from the phone, based on when the phone call was made.<\/p>\n

If you talk like that, I say, \u201cgood.\u201d\u00a0 That’s what I need to hear, right?\u00a0 Or they were recording something or they recorded the suspect vehicle.\u00a0 Just give me something more than, \u201cHey, we just do it as a matter of routine.\u201d<\/p>\n

What if you find evidence against the victim on the phone?<\/h2>\n

Because the problem is that you may find evidence on the phone against the victim.\u00a0 Let’s say you find child porn and you charge that person.\u00a0 And now this defendant, the victim originally, but now the defendant, goes to court and puts you on the stand and says, \u201cYou had no reason, you had no probable cause to even seize my cell phone in the beginning.\u00a0 You just seized it because you were told to do that and you just do it as a of matter routine.\u00a0 Isn’t that true?\u201d<\/p>\n

Officer (you) says, \u201cYeah, that’s pretty much true.\u00a0 I didn’t have anything specific as to your phone at the time I seized it.\u00a0 I just seized it.\u00a0 That’s a problem for you.<\/p>\n

You’ll say,\u00a0 \u201cBut Anthony, then if they go get a search warrant won\u2019t the search warrant save the evidence?\u201d\u00a0 Maybe.\u00a0 But If an appellate court believes that the search warrant was so facially invalid, that no reasonable officer would have believed that he had probable cause to begin with, then that defeats the search warrant. So just because you have a signature of a judge does not mean that it’s foolproof. you can still attack a search warrant, even though it is difficult.\u00a0 As far as seizing their cars, it sucks to be a victim of crime in California. \u00a0 You lose your phone, and you lose your car, right?<\/p>\n

Look, if the detectives need that car and have a good reason for it, then it is what it is, right?<\/p>\n

Can you detain a shooting victim who wants to leave?<\/h2>\n

I actually have to tell you one more thing.\u00a0 The writer also talks about\u00a0 detaining these victims, or at least implies that these victims are not free to leave, until the investigators show up.\u00a0 I just want you to know that, constitutionally, you’re definitely allowed to freeze the scene and, render aid and see who the witnesses are, who the victims are.\u00a0 But at some point, you may have a victim who is like, \u201cI\u2019ve got to go, I’m late for work, or I’m going to miss my flight, I ain’t going to cooperate.\u201d\u00a0 You can’t just detain these people against their will.\u00a0 They are not suspects in a crime.<\/p>\n

Now, if you believe that they could be suspects, and they might be in a gang shooting, that’s a different story.\u00a0 Then you can have reasonable suspicion.\u00a0 But if you believe that they’re purely a victim, and they just don’t want to give a full statement right now and they want to leave, I have to tell you, constitutionally, what you’re supposed to do is identify them and let them go.\u00a0 Try to earn their cooperation, try to convince them that the best thing for keeping the community safe is their cooperation.<\/p>\n

But look, I’m just telling you, there is no constitutional authority to detain a victim against their will. There is no legal authority in any state that says if you’re a victim of a crime, you don’t get to go anywhere.\u00a0 We get to keep you as long as we need to.\u00a0 That’s not how that works.\u00a0 So keep those things in mind as well.<\/p>\n

So that’s pretty much what I have for you.\u00a0 Hopefully, it helps.\u00a0 Use good judgment here.\u00a0 All right, Guys, I hope this helps you get it right every single time.\u00a0 Keep the questions coming at:\u00a0 bluetogold.com\/show.<\/p>\n

Related from Blue to Gold<\/h2>\n