Policy Text
JACKIE LACEY
DISTRICT ATTORNEY LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE
ONEMINUTE
BRIEF
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NUMBER : 2020-34 DATE : 10-08-20 BY: Devallis Rutledge TOPIC : Cell-phone Seizure
Thanks to : Mike Enomoto
ISSUE : When may law enforcement officers lawfully make a warrantless seizure of a
person’s cell phone to prevent the destruction or loss of evidence ?
Law enforcement officers may not generally make a warrantless search of someone’s
cell phone i n the absence of a recognized exception (such as consent, exigency or specific
probation/parole/PRCS/supervision search term). Riley v. California and US v. Wurie (2014)
573 US 373; PC § 1546.1; see 1MBs 2014 -13, 2016 -X1. A warrantless seizure might also b e
justified by a recognized exception, including consent, search term, incident to arrest,
instrumentality, or an exigency —such as preventi ng the loss or destruction of evidence .
● Searches and seizures implicate different Fourth Amendment interests . “Whereas a
search implicates a person’s right to keep the contents of his or her belongings private , a
seizure only affects their right to possess the particular item in question. Consequently, the
police generally have greater leeway in terms of conductin g a warrantless seizure than they
do in carrying out a warrantless search .” People v. Tran (2019) 42 Cal.App.5th 1, 8.
“We have found no case in which the Court has held unlawful a temporary seizure that
was supported by probable cause and was designed to prevent the loss of evidence while
the police diligently obtained a warrant in a reasonable period of time.” Illinois v. McArthur
(2001) 531 US 326, 334.
“Where law enforcement authorities have probable cause to believe that a contain er
holds contraband or evidence of a crime , … the Court has interpreted the [Fourth] Amendment
to permit seizure of the property, pending issuance of a warrant to examine its contents, if the
exigencies of the circumstances demand it or some other recogniz ed exception to the
warrant requirement is present.” US v. Place (1983) 462 US 696, 701.
This information was current as of publication date. It is not intended as legal advice. It is
recommended that readers check for subsequent developments, and consult legal advisors to ensure
currency after publication. Local policies and procedures regarding application should be observed.
LADA ONE -MINUTE BRIEF NO. 20 20-34 PAGE 2
“[A] camera is a type of container . It contains digital images. … Thus, the threat that
evidence will be destroyed or lost before the officer can obtain a warrant is a valid exigent
circumstance justifying the officer’s immediate seizure of the evidence.” Tran, supra, 42
Cal.App.5th at 9, 15 (upholding seizure of a dashcam from a suspect whose reckless driving
caused a near -fatal crash, and who had removed the dashcam and hidden it in a backpack).
Even in Riley -Wurie, where the court invalidated the warrantless search of arrestees’
cell phones, the court noted that “Both Riley and Wurie concede that officers could have seized
and secured their cell phones [incident to arrest] to prevent the destruction of evidence while
seeking a warrant. That is a sensible concession .” Riley, supra, 573 US at 388.
And the court subsequently cited Riley for the proposition that “police may seize and hold
a cell phone to prevent the des truction of evidence while seeking a warrant.” Los Angeles
v. Patel (2015) 576 US 409, 422 .
► However , before police may seize a cell phone to prevent the destruction or loss of
evidence, there must be articulated reasons to believe that someone with access has a
motive or intention to destroy what’s recorded there, or else there is no exigent need to
prevent the destruction of evidence. Tran, supra, 42 Cal.App.5th at 10.
► Where cell phone video is being taken by a detainee or a third-party bystander
who has no apparent reason to delete what s/he has just gone to the trouble of recording
(presumably for the purpose of creat ing and preserv ing a lasting record of events), a seizure
could not be justified on the ground of preventing the destruction of evidence.
● As long as individuals do not obstruct or delay official duty, they generally have both a
First Amendment and a statutory right to record whatever they can see, while in a place where
they have a right to be. Fordyce v. Seattle (9th Cir. 1995) 55 F.3d 436, 439; PC §§ 69(b), 148(g);
see 1MB 2016 -10. All the same,