The Search & Seizure Show

Can police officers search an OD victim's cell phone?


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Alright. Today's question is, can we search a deceased victim's cell phone? Right? Okay, so comes from an officer in Alabama, let me ask, let me give you the context here recently, and, you know, at overdoses, our narcotics Units unit has been wanting to seize the cell phones for the purpose of searching them. The goal is to charge a drug dealer with the death of the individual, right? As well as general information gathering, maybe they can point to the right finger in the direction of local dealers in the in the city and so forth. Now, the cop says My understanding is that since the person is deceased, they no longer have a fourth human rights in the deceased has no more issue, privacy interest in the phone, and they can perform the search without a warrant. Now, the only hiccup the officer is seeing here is that what if the family member says no, you cannot take our son's cell phone? You cannot take our daughter cell phone? We want it that's going to be ours, because we're going to inherit his property? Do they now have to get a warrant? If they do not get consent? All right? Well, look, I kind of talked about cell phones before. But let me just re address it because it's a very important issue. Generally speaking, there is no privacy interest that the drug dealer has in the phone. So even if the cops search the phone with nobodies without the famous consent, even though they may get the property in probate or whatever, right. They don't, there's the family doesn't have a most likely a privacy interest in the phone. It's the son's phone, it's his phone. Now, even if they got the phone after the death, it's not, they still have no privacy interest in the information. So we're not going to really have an issue there. Even if they had a privacy interest, even if they're the only time the Fourth Amendment is going to be implicated as if they're being charged. So if the mom, for example, says you cannot have my, my, my phone, my son's cell phone, and we find out later that she paid the bill, she has common authority over the phone, she often uses it because the sun allows you to use it, and blah, blah, blah, that's not going to come up. And that's not going to be an issue of the criminal case against the drug dealer. Unless the drug dealer is mom, right. So even if mom has a privacy interest, it's not going to come into court because the drug dealer, if it's not mom at some third party, who's dealing drugs in the in the city is not going to be able to use go through mom to try to claim that he has some privacy insure. So again, it's at the end of the day, the result is probably the same. So just a wrap up. If somebody dies, and they have a cell phone, and police, you know, then the guy has the disease no longer has a privacy interest. He's not going to complain, right, obviously. And even if they somebody else, like the family member that has some tied to the phone complains, their denial, even for warrantless search is not going to be effective, as long as they're not a defendant. Right, because but if somehow, that family member who happens to have a privacy interest in a phone, which can be rare, but they happen to have a privacy interest phone, if they start becoming a person of interest, Houston, we have a problem. They can complain if they do have a legitimate privacy, interest and phone, they can complain about a warrantless search..

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The Search & Seizure ShowBy Anthony Bandiero

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