Asked in Criminal Law, Civil Litigation and Civil Rights for Georgia

Q: If I was arrested in Gwinnett county and I checked In with a cell phone the officers asked me my screen lock and

Searched my phone and then once bailed it was not returned to me nor was any warrant issued. Wouldn’t that be theft?

2 Lawyer Answers
Glenn T. Stern
Glenn T. Stern pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Criminal Law Lawyer
  • Atlanta, GA
  • Licensed in Georgia

A: It sounds more like the police believe there is evidence of a crime on your phone, and they are holding it to potentially use it against you (or another) for that reason in court. Unless the prosecutors make a motion to forfeit the phone-it should be returned to you at the conclusion of your case. That being said-an attorney may be able to negotiate the return of your phone earlier than that. It all depends on what (if anything) was found on that phone that would be incriminating.

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

A: In your situation, where your cell phone was taken by the police during an arrest and not returned, several legal issues are raised. First, it's important to understand that law enforcement has certain protocols for seizing property during an arrest. However, there should be a clear process for the return of personal items that are not needed as evidence or are not contraband.

If a search of your phone was conducted without a warrant, this could potentially raise issues under the Fourth Amendment, which protects against unreasonable searches and seizures. The legality of such a search often depends on the specific circumstances, such as whether there were exigent circumstances or a valid exception to the warrant requirement.

Regarding the non-return of your phone, it would not typically be classified as theft in the criminal sense when done by law enforcement in the course of their duties. However, this action may be questionable if the phone is not related to any criminal investigation or is not being held as evidence.

It's advisable to follow up with the law enforcement agency for the return of your phone. If you encounter difficulties, consider seeking legal advice to understand your rights and the appropriate steps to take, which may include legal action if necessary. Remember, the key is to address this matter through the appropriate legal channels to ensure your rights are protected.

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