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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 26765
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My 17 year old daughter was arrested of. She is a great kid

Customer Question

My 17 year old daughter was arrested for possession of weed. She is a great kid just at the wrong place and the wrong time. The police kept her cell phone. I want the phone back and they will not give it back until they get all the data off the phone. In the state of ND what are my rights in this situation. They kept the phone without having a search warrant, they said it could be days until they get the warrant. How can they keep her phone without a warrant?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.


The police can take the phone without a warrant on a search incident to a lawful arrest. That's an exception to the warrant requirement. Thanks to a recent US Supreme Court ruling, however, they cannot search the contents of the phone without a warrant. They can hold it, however, and obtain such a warrant if they have a reasonable basis to believe that the phone may contain evidence of illegal activity.

Inasmuch as the phone may contain evidence of this or other related crimes, police do not have to return it at this time. If it turns out it is is being used to further illegal activity they do not have to give it back at all. If the phone contents have no evidentiary value, the police should return the phone. If they don't, your daughter could ask her lawyer to get the DA to issue a release for the phone, or if you're the one paying for the phone and the account, you may be able to claim the phone yourself as its innocent owner once the state no longer needs it.

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