Criminal Defense Blog NYC

Don’t Surrender Your Smart Phone

Posted by Bruce Yerman on January 21, 2018

Don't Surrender Your Smart Phone

Don’t Do It!

Given the choice, don’t surrender your smart phone.

For example, when you turn yourself in at a police station or a district attorney’s office, don’t bring your smart phone with you. When police arrest you at home, don’t make a point of grabbing your phone, along with your wallet and keys, before they cart you away.

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Whether you’re arrested in your car, on the street, or anywhere else, if the police allow it, immediately hand over your phone and other valuable property to someone you trust.

The reason for this is simple: your phone contains a ton of information.  Your phone possibly contains evidence that could be used against you to prove that you’ve committed crimes.  If police believe that your phone might contain evidence, they will hold onto it until prosecutors get a warrant to download every last shred of data.

When you’re arrested, possessing your phone won’t help you in any way.  You won’t be able to call family or friends.  You won’t be able to play Angry Birds on it.  You won’t have access to to your phone while you’re in custody.  So please, don’t bring it with you.

On the other hand, your phone contains millions of pieces of information.  There’s a pretty good chance that at least one of those pieces could hang you.

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What’s in There?

Think about what your smart phone contains:

  1. A history of recent calls made to and from your phone. This includes the date and time of each call, the duration of each call, and perhaps each caller’s identity.
  2. Phone conversations that you’ve recorded.
  3. Voice messages that you’ve received.
  4. Text messages that you’ve written or received, including attachments.
  5. Email that you’ve written or received, including attachments.
  6. Access to Facebook and your other social media accounts, which might contain more damaging evidence than what’s inside your phone.
  7. Photos taken with your phone’s camera, plus the dates, times and locations of the photos.
  8. Videos taken with your phone’s camera, plus the dates, times and locations of the videos.
  9. Browser histories referencing each web page that you’ve visited.
  10. Documents, photos, videos and other media that you’ve downloaded from the internet.
  11. Apps that identify banks and other financial institutions with which you do business.
  12. The names and phone numbers of everyone in your contacts app.
  13. Your phone’s serial number, which might link it to a previous owner who reported it stolen.

Investigators can also download deleted data from your phone.

Because prosecutors use evidence recovered from smart phones to prove almost every crime imaginable, DON’T voluntarily give your phone to the police.

Don’t Volunteer – But Don’t Interfere

To be clear, don’t interfere with the police.  Don’t physically resist a police officer’s attempt to take your phone from you.  Don’t block police from entering your home to execute a search warrant.  Don’t block a warrantless search either.  Don’t destroy your phone.  Such actions inevitably lead to police brutality, along with charges of obstructing governmental administration, assaulting a police officer, and evidence tampering.  If you believe an officer’s actions are illegal, sort it out in the courtroom, not on the street.

Bottom line: don’t make it easy for police by voluntarily handing over your phone.

Don’t Consent to a Search of Your Phone

Also, don’t give police permission to view your phone’s contents.

Your phone contains your life history from the moment you took your phone out of the box.  Things that you’ve forgotten, or never remembered to begin with, are on there.  The data on your phone is more accurate and detailed than your memory.  Even if it doesn’t tell the whole story, it tells enough to hurt you – bad.

If police ask for consent to take your phone, or to search it, your answer must be, “I want to speak with a lawyer.”  If police ask for your phone’s password, your answer must be, “I want to speak with a lawyer.”  If police ask for your consent 1,000 times, then you must answer 1,000 times, “I want to speak with a lawyer.”  (After the first five times, just say, “Lawyer.”  They’ll know what you mean.)

Even if you think you have nothing to hide, or believe that withholding consent will cause the police to arrest you, your answer must be, “I want to speak with a lawyer.”  (If police have probable cause to arrest you, they’ll arrest you after you consent to them taking and/or searching your phone.  If police lack probable cause, your refusal to consent won’t give them probable cause.

If police ask for your consent to take or search your child’s phone, your answer must be, “No.”  Even if you’re furious because you think your child broke the law, your answer must be “No.”

Don’t Lose Control of Favorable Evidence

On the flipside, your phone might not damn you.  It might be your salvation.  Your phone might contain evidence that proves you’re innocent.  If it does, your ability to access its content will be compromised if the police possess it – at best, delayed; at worst, destroyed.  Yet another reason not to voluntarily give your phone to police.

If you have the choice, don’t get arrested with your smart phone.  Never consent to police taking your phone and searching it.


Bruce Yerman is a New York City criminal defense attorney.  If you would like to discuss arrest and arraignment, contact Bruce for a free consultation:

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Topics: Smart Phone, Arrest, Voluntary Surrender