Let’s say that you are a witness to a confrontation involving police officers in the Dallas-Fort Worth area, and you record the confrontation on your smartphone. What you saw at the time of the incident was chaotic, so you aren’t sure if the law enforcement officers were exceeding their authority or merely using necessary and legitimate force. Then, let’s say that you are spotted, and a police officer tells you that your phone will be needed as evidence.

Should you simply hand over your phone? Do you have any right to refuse? Can law enforcement officers seize your phone against your will if you’ve committed no crime? Like almost everything else in the law, the answer is “it’s complicated” and “it depends,” so in the Dallas-Fort Worth area, you’ll probably want to discuss any specific case of cell phone seizure by the police with an experienced Dallas criminal defense attorney.


Back in 2013, Kern County, California sheriff’s deputies found David Sal Silva, a 33-year-old father of four, passed out on the pavement. When they roused him, he was – according to a press release from the Kern County Sheriff’s Office – “uncooperative,” and a struggle ensued. Maria Melendez was across the street and took video of the incident. Silva, 33, was repeatedly struck by batons and bitten by a police dog. The autopsy, however, determined that Silva died accidentally from hypertensive heart disease.

Ms. Melendez and her daughter’s boyfriend both recorded the episode on their phones, but detectives from the Kern County Sheriff’s Office seized the phones before obtaining a warrant, Ms. Melendez told the New York Times. California defense attorney Michael Lukehart told the newspaper that the seizure of phones in the Silva case was unique in his years of working in Kern County. “I haven’t seen situations where they go to various and sundry witnesses’ homes and knock on the door and take the property of uninvolved citizens because they may have seen something,” Lukehart said.


Ms. Melendez and her daughter’s boyfriend both said they were held against their will in their homes while deputies obtained search warrants for their phones. Kern County Sheriff Donny Youngblood disputed that allegation and said the witnesses were allowed to leave at any time but were not allowed to take their phones with them, as deputies believed the phones contained evidence. Search warrants were obtained, and the phones handed over to the Bakersfield Police Department, but some accused law enforcement officers of trying to cover up the incident.


Attorney Lukehart told the Times that no one has a right to resist the police when they are legally and legitimately conducting an investigation. He added that police officers must adhere to regulations regarding privacy rights and the collection of evidence. The law is evolving along with the technology, and some of the murkier areas of the law should become clear as the courts examine cases and render decisions. “On the other hand, it’s still a free country last I looked,” Lukehart explained. “You don’t have to talk to anybody you don’t want to, you don’t have to cooperate with law enforcement and you don’t have to surrender your personal property.”


According to Bakersfield police Sgt. Joe Grubbs, police officers consider a number of variables in these kinds of circumstances. If the Bakersfield police believe that someone has recorded a crime on his or her phone, Sgt. Grubbs says they will ask for the phone and try to work with the person in order not to seize it as evidence. “In most cases we ask for consent,” he said, adding that if someone voluntarily surrenders his or her phone, an officer can usually upload what he or she needs quite quickly and return the phone promptly.

However – at least in Bakersfield and Kern County, California – if someone refuses to surrender his or her phone and law enforcement officers are persuaded that it holds evidence of a crime, then officers may seize the phone without a warrant. A warrant is not required to seize a phone in such a circumstance, but a warrant will be required before anything can be downloaded from a phone. And a seized phone will take longer to return than a phone handed over voluntarily.


Case law across the United States has varied widely regarding police officers searching cell phones without warrants. In a recent Boston case, the First U.S. Circuit Court of Appeals overturned the conviction of a defendant whose phone was searched without a warrant after his arrest. In U.S. v. Wurie, a 2014 U.S. Supreme Court decision, the justices determined that searching a suspect’s phone without a warrant violates the Fourth Amendment unless law enforcement officers can justify the search by offering exigent circumstances or some other legitimate exception to the requirement for a warrant.


But in other cases – such as U.S. v. Damian Antonio Murphy – judges have ruled that police officers may conduct a warrantless search of a cellphone when there is a “manifest need … to preserve evidence.” In U.S. v. Young, the U.S. Fourth Circuit Court of Appeals said the police may download information without a warrant from a phone seized during an arrest. Clearly, at least for now, these cases will be decided on a case-by-case basis as judges determine what is and isn’t an “exigent circumstance” or a legitimate exception to the requirement for a warrant.

Gary Bostwick, a criminal defense attorney in the Los Angeles area, told the Huffington Post that taking phones as evidence is a “very murky area” of the law. Bostwick has been involved in cases where police officers seized cellphones without warrants because – they said – they believed the phones held key evidence that the owner might destroy. In the Dallas-Fort Worth area, if the police seize your phone against your will – or search it without a warrant, whether or not you’ve been taken into custody – you should probably speak to an experienced Dallas criminal defense attorney about your rights and legal options.

Of course, it would help if lawmakers could create a comprehensive law that spells out precisely what law enforcement officers can and cannot do in particular situations. The problem, of course, is that every situation the police is “particular.” California attorney Gary Bostwick concluded, “It would be really difficult to write a law and still maintain the state’s right and duty to collect evidence.”