{"id":7521,"date":"2023-10-27T15:33:33","date_gmt":"2023-10-27T15:33:33","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=7521"},"modified":"2026-09-17T06:40:28","modified_gmt":"2026-09-17T13:40:28","slug":"seizing-cellphone-of-o-d-victim","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=7521","title":{"rendered":"Seizing Cellphone of O.D. Victim"},"content":{"rendered":"

Anthony Bandiero here, bringing you another question and answer.<\/p>\n

This one is from an officer in New York.\u00a0 The question is, when officers respond to an OD, and the person is revived, can you take their cell phone as evidence?<\/strong><\/p>\n

You want to see who the dealer is, because that’s the person who could potentially be charged for contributing to the overdose.\u00a0 What if the person ends up dying?\u00a0 Can you search or seize any cell phones?\u00a0 Here’s my feedback.<\/p>\n

Is taking a cell phone a seizure under the Fourth Amendment?<\/h2>\n

Number one, obviously, without any question, taking a person\u2019s cell phone is a Fourth Amendment issue.\u00a0 It’s a seizure under the Fourth Amendment, especially if they’re alive, because if they’re alive, they have a possessory interest in their cell phone.\u00a0 Therefore, the seizure has to be reasonable.<\/p>\n

Now, if the person is being transported to the hospital, and you’re going to conduct a criminal investigation to determine who sold the narcotics to the person, seizing the phone in order to get a warrant is reasonable.\u00a0 You’re going to have probable cause<\/a>.<\/p>\n

What happens if you seize a phone and never get a search warrant?<\/h2>\n

But, seizing it as a matter of routine, and then keeping it in the evidence locker and not seeking a search warrant presents a problem.\u00a0 Where do you go from there?\u00a0 First of all, the person can demand their phone back.\u00a0 And if you’re not going to seek a search warrant, then you’re going to have to give their phone back.<\/p>\n

If you don’t give the phone back, you might have a lawsuit on your hands.\u00a0 I know it might be kind of minor, but, the attorney is going to say, \u201cWell, you have my client\u2019s property, you’re not releasing it and you’re not seeking a search a search warrant.\u00a0 So you’re de-possessing my client of their property.\u201d\u00a0 That’s a good argument.<\/p>\n

So, if you’re going to seize the cell phone, the thing I want to see is that you\u2019re getting that search warrant as soon as possible.\u00a0 But if your department has a policy, or a custom and practice of just routinely seizing people’s cell phones, I see that as problematic.\u00a0 I see that as potentially condoning a violation of some Fourth Amendment rights; that you’re seizing their cell phone unreasonably.<\/p>\n

There are not a lot of cases I’ve seen on this, and a lot of it is going to be civil.\u00a0 But I want to see cops diligently seeking a search warrant if they’re going to seize cell phones<\/a>.\u00a0 Now, if the person has died, we have a criminal investigation.\u00a0 Also, there is usually nobody that has any standing over the phone, because the person that had forthright standing is dead.<\/p>\n

Who has standing over the phone after the overdose victim dies?<\/h2>\n

Other people, like the dealer, have no standing over the phone.\u00a0 Friends, or the parents that may want the phone back, that\u2019s not going to be their phone.\u00a0 Even if they get the property afterwards, in probate or something, that phone is evidence, and you still want to diligently seek a search warrant.\u00a0 And of course, if the person died, I don’t know why you wouldn’t be.<\/p>\n

So actually, I thought was an interesting question.\u00a0 I don’t see a lot of cases on this, but I just want to give you what I’d be looking for.\u00a0 So I do see it as an issue; seizing phones as a matter of routine.\u00a0 I want to see cops diligently going to get those search warrants. Otherwise, we may have a problem.<\/p>\n

Thank you for the question, and keep them coming!<\/p>\n

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