The police took my phone as 'evidence' and they won't return it

"The police took my phone as 'evidence' and now they won't return it, saying they are going to keep it until after the trial for use as 'evidence.'

This is a very common tactic which is often employed by police as an unstated threat that your phone may lead to additional charges or evidence of your guilt to be used against you. Unless you know exactly what you are charged with (and you cannot since the charges can be changed very easily) and exactly what is on your phone (and you cannot since apps store the strangest bits of information in the strangest places even after the app has been deleted), it is never a good idea to consent to the police accessing your phone.

If the police have reason to believe that there is evidence on your phone their remedy, usually their only proper remedy, is to take their belief to a judicial officer to get a search warrant to access your phone. Both the U.S. Supreme Court and the Supreme Court of Virginia have held that a warrant is normally required to access a person's phone.

Without a search warrant, you are entitled to the return of your phone and to the exclusion of any evidence which the police may have gathered from it.

If you are in this situation and would like to speak with an attorney, please feel free to contact my office to arrange for a free consultation.

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"This page is not an advertisement; it is a blog. The views and opinions expressed on this blog are solely those of attorney Robert Lorey. The purpose of these articles is to inform the public regarding various issues involving the criminal justice system and should not be construed to suggest a similar outcome in any other case. The outcome of any case depends on a myriad of factors which are well outside this blog post."

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