The law of the land is that the “search incident to arrest” exception to the warrant requirement does not apply to the contents of a cellphone. But what about seizures of cellphones? Has the rule become, “I can take your phone because I’m a cop?”
Police officers around the country take cellphones every day. But it appears the NYPD might be among the most prolific. According to a disclosure report released on March 4, 2021, and posted at www1.nyc.gov, the NYPD seized 55,511 cellphones in 2020. And almost 85% of those seizures were from people not charged with a criminal offense. In one incident, the victim of a shooting was recovering in the hospital when police took the victim’s phone, claiming it was needed for evidence.
Once the cops claim the phone is evidence, it might take months or longer to get it back because the owner must await the conclusions of all investigations and all court proceedings. But by then, presumably most people will have been burdened with the expense of purchasing another phone since they have become essential to daily life.
Besides, the NYPD created hoops to jump through in order to get a phone returned. Until a court recently ordered otherwise, citizens had to present two forms of ID to obtain their property back—even though police had seized the owner’s driver’s license. The agreement ordered by the court places strict limitations on when police may seize licenses and trims the ID requirement to one. Still, even under the settlement, phone owners have to present ID to obtain a property voucher; take the voucher to the District Attorney’s Office; then ask for a release letter. The Office has up to 15 days to respond to the request for release. But if the DA says yes, then you can reclaim your property by presenting your voucher, the release form, and a valid ID to the NYPD property clerk.
“If the DA says no, you can request a review of the decision from another DA, or try again later,” James Craven, Cato Institute legal associate, reports on cato.org.
NYPD last year was able to auction off 21,660 phones as “unclaimed property.” If it’s not for the money (the city spent $10.9 billion in 2020 to fund the NYPD—meaning the proceeds selling phones is pocket change), then why do it?
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