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Technically, if you film police while they are performing their duties out in public, an officer could potentially be justified in taking your cell phone. However, that would be limited to situations where either you were personally being arrested for a crime, or where your video captured another person's crime. Fortunately, courts have consistently ruled that recording police performing their duties in public is completely legal, so long as you don't get in their way.
When investigating a crime, at the time of arrest, and immediately after an arrest, officers can seize evidence found at the scene. If your cell phone contains a video of an individual committing a crime, that video, and your cell phone, could very well be evidence. Barring these limited scenarios, and often in these scenarios, an officer cannot legally take your phone. Unfortunately, refusing to comply can be dangerous and result in arrest.
Unless you are willing to face an arrest, if an officer wants to take your phone, you probably have to acquiesce. However, asserting your rights, politely, could potentially make an officer think twice. You can do so by asking questions like:
As stated above, unless you are willing to be arrested, refusing to comply with any police demands is never a good idea. Additionally, officers will need a warrant, or a court order, to unlock a password protected phone, so make sure you password protect your smart phone.
If law enforcement officers took your phone due to you video recording their activities in public, you can request that your phone be returned. However, law enforcement can sometimes be hesitant to do so, as seen in the case of Latasha Nelson. Ms. Nelson had her phone taken because she recorded the arrest of her two sons. In her case, officers would only agree to return her phone if she deleted the video she took of her sons' arrests. Nelson could likely file a civil rights action against the police for refusing to return her phone and violating her First and Fourth Amendment rights.
If your phone has been confiscated and police are refusing to return it, contacting a civil rights attorney is probably a good idea.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.