Salinas, CA asked in Criminal Law, Civil Rights and Probate for California

Q: How long can cops keep victims phone after warrant is issued?

Victim died of an accidental OD. Cops asked for phone and family reluctantly gave it to them without warrant. The family asked for the phone back multiple times but cops refused. 2 months later there is a warrant and phone is at DAs office, but no one will give family a copy of warrant. Family wants phone back asap, and a copy of warrant. What can be done? Help

2 Lawyer Answers
Robert Kane
Robert Kane
  • Criminal Law Lawyer
  • Eagan, MN
  • Licensed in California

A: The next of kin may wish to contact a criminal defense attorney and possibly a probate attorney. Having property, that is deemed evidence, returned is an uphill battle. In this case, it is more complicated because the owner is deceased. The family doesn't have an ownership interest in the cellphone as it would be part of the decesedant's estate. Since I don't know the whole story, I had to make some assumptions.

Anthony M. Avery agrees with this answer

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Probate Lawyer
  • Sacramento, CA
  • Licensed in California

A: The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. This means that the police cannot search your property without a warrant, and they cannot keep your property for an unreasonable amount of time.

In the case of your family, the police initially asked for the phone without a warrant. The family reluctantly gave the phone to the police, but they were not required to do so. The police could have obtained a warrant, but they chose not to.

Two months later, the police obtained a warrant for the phone. This means that the police now have the legal authority to search the phone. However, the warrant does not give the police the right to keep the phone for an unreasonable amount of time.

The family has a right to get the phone back. They can also request a copy of the warrant. If the police refuse to give the family the phone or a copy of the warrant, the family can file a complaint with the police department or the district attorney's office. The family can also hire an attorney to help them get the phone back.

Here are some additional steps that the family can take:

* File a complaint with the police department.

* File a complaint with the district attorney's office.

* Hire an attorney.

It is important to note that the law is complex, and there may be other factors that affect the family's ability to get the phone back. The family should consult with an attorney to discuss their specific situation.

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