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Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor for Blue to Gold  law enforcement training, bringing you another roadside chat from the road. Right. So a lot of these I make are from the studio because of travel restrictions. Or just as more convenient to be honest with you, sometimes I make them because I get so many of these, but I'm here in Greenville, Tennessee, trying to catch up on these, these questions. And the next one is going to be from an officer in New York, right, just north of New York City. And basically, the officer is give me a scenario here, where under the lights kind of coming into the car, but it is what it is, hopefully that's not too distracting. Alright, so the question is, when officers respond to  an OD, right, and the person is is revived, they're going to go to the hospital? Can you take their cell phone as evidence and to see, you know, who the dealer is, you know, because that's that person could potentially be charged for contributing to the, to the overdose? What if the, the person, you know, ends up dying? Can you searches, you know, basically seize any cell phones and the circumstances? Here's, here's my, my feedback. Number one, obviously, without any question, taking a person's cell phone is a fourth amendment issue, right? It's a seizure on the Fourth Amendment, especially if they're alive, right? Because they're alive, and they have a possessory interest in their cell phone. Therefore, you know, the seizure has to be reasonable. Now, if it's a, if the person is being transported to the hospital, and you're going to conduct a criminal investigation to determine, you know, who sold the narcotics to the person and so forth, and seizing the phone in order to get a warrant. It's reasonable, that's, that's, you know, that's, that's gonna be reasonable, they're, you know, likely, you're gonna have probable cause. But the problem is going to be seizing it as a matter of routine, and then keeping it in the evidence locker, whatever, and not seeking a search warrant. And where do you go from there, I mean, first of all, the person can demand their phone back. And if you're not going to seek a search warrant, then you're going to get their, their phone back. And their thing is, if you don't give the phone, if you don't get the phone back, you might have a lawsuit on your hands, because I know it might be kind of minor, but, uh, you know, the attorneys gonna say, Well, you have my clients property, you're not, you're not releasing it, it's not and you're not seeking a search a search warrant. So you're, you know, you, you're deep possessing my client of the property, that's the argument, it's a good argument. So, if you're going to see if the cell phone, I think  the thing I want to see is that you're getting that search warrant as soon as possible. Right. But if you are, if your department has a has a policy, or a custom and practice of just routinely seizing people's cell phones, just because in case we might need it for people who have not died, and, and you know, they would want their cell phone, you know, their you know, especially when you're telling them on their cell phone, I see that as problematic. I see that as potentially, you know, condoning a violation of some of these fourth human rights that you're seizing their cell phone unreasonably. So that's my best advice on now, there's not a lot of cases I've seen on this, that, you know, a lot of stuff is going to be civil. But I want to see cops diligently seeking a search warrant, if they're gonna see cell phones now, if the person has died, now we have a criminal investigation. Also, you know, usually there's nobody that has standing over the phone, because the person that has standing costly and forthright standing is dead. Other people like the like, the dealer has no standing on the phone. Friends, you know, that may want the phone back the parents, you know, that's not going to be their phone for mostly, even if even if they get the property after, you know, in probate or something, that phone is evidence, but you still want to, you still want to diligently seek a search warrant? And of course, if the person died, I don't know why you wouldn't be. So actually, I thought was an interesting question I wish I had. I don't see a lot of cases on this, but I just want to give you what I'd be looking for. There could be some other stuff out there that changes a little bit, but that's what I'm looking for. So I do see it as it is an issue. Seizing phones as a matter of routine. I want to see cops diligently going to get those search warrants. Otherwise, we may have a problem. All right, look, if you like what I'm doing and these questions help, you know, they push the ball forward, move the ball forward by even by an inch. That do me a favor, hit like or comment, subscribe and share with your friends. All right. All right. Until next time, my friends stay safe.
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