If arrested on an alleged drug charge, is it legal for officers to confiscate your phone demand passcode and not return

Question

No warrant for the contents of said mobile device was presented at time of confiscation or any time after.

David A. Cincotta · Answer

The question you pose is one that requires an analysis under the Fourth Amendment with the detailed facts of your encounter with the police. Unfortunately, the detailed factual account that is needed should not be communicated over this forum. Because you were arrested on an alleged drug charge, I strongly encourage you to ask this question of the attorney you hire to represent you to defend against those allegations.   
 
I can tell you that law enforcement has authority, in limited circumstances, to seize or confiscate property belonging to an individual at the time of making an arrest. That authority does not always require a warrant. If they seize a phone that is locked, law enforcement must generally apply for, and obtain, a warrant before conducting a search of the phone (assuming they will be able to access the data on the phone without the passcode). One exception (and it is not the only exception) is if they have the consent of the person to whom the phone belongs. Your statement indicating they demanded the passcode raises concerns. However, without having all of the facts, it is not clear whether anything they did was legally improper, and, even if it was, whether their actions will result in evidence being excluded at trial.

Q: If arrested on an alleged drug charge, is it legal for officers to confiscate your phone demand passcode and not return