Intelligent Criminal Defense For Clients Throughout McLean County

House Fire? Gimme Your Phone! ~Seizure of Personal Property Without a Warrant

by | May 16, 2023 | Firm News

Recently, an ISU student in Normal, Illinois suffered a house fire. In investigating the fire, the assigned detective with the Normal Police Department wanted to speak with the ISU student. The student chose not to speak with the detective, at which point the detective ordered other officers to seize the student’s cellular phone. The student was stranded at the Normal Police Department in the early hours of the morning and had no means to return home without her phone. When the student told NPD officers that she would not relinquish her phone unless they provided a reason, they simply stated that it was part of the ongoing investigation into the fire, but could not say why they needed her phone with any more specificity than that. When the student informed the officers that she needed her phone and that they had not provided any reason to seize it, several officers forcibly restrained the student to wrest her phone from her grip. Ultimately, the student was arrested for resisting or obstructing an authorized act and aggravated battery (for allegedly striking one of the officers). However, she was released a few hours later; all charges were dropped and her phone was returned to her.

You can refuse to talk to the police:

You have a constitutional right to refuse to speak to the police. Under the Fifth Amendment (which is applied to the States by the Fourteenth Amendment), you have a right to remain silent and to refuse to provide any information which might incriminate you. Under the Fourth Amendment, you have a right to be free from involuntary searches or seizures except in certain limited circumstances. Although police officers can ask any questions they want of a random pedestrian on the street, that pedestrian is under no obligation to answer. Only if the officer has a “reasonable, articulable suspicion of criminal activity” (whether past, ongoing, or future) can they legally detain you even for a moment. Even then, the scope of the detention is limited.

Reasonable Suspicion, Terry v. Ohio, & 725 ILCS 5/107-14: 

Both under federal constitutional law and pursuant to Illinois statute, police can briefly detain and question a person without arresting them. However, the officer must first have a “reasonable, articulable suspicion” that the person stopped is engaged, has engaged, or is about to engage in criminal activity. In Illinois, if the officer has such a reasonable, articulable suspicion, they may ask for your name, address, and a short explanation of your presence in the area. You do not have to provide a driver’s license except during a traffic stop. In any other situation only those three pieces of information must be disclosed to the officer, and only if the officer can articulate a reasonable suspicion that the particular individual is engaged in crime. “You’re in a high-crime [read: over-policed] area” is not good enough.

Resisting or Obstructing and Authorized Acts: 

First and foremost, you cannot resist an arrest in Illinois — even if the arrest is actually unlawful  — unless the police use such excessive force that you are required to defend yourself (and the judge had better agree with that assessment). For any police action short of an arrest, “suspects” are only required to comply with lawful orders by police. If an officer orders you to pay them money, to babysit their children, or to engage in criminal activity, you are free to refuse. Illinois law does allow some brief discussion with the officer about the legality of the order, and allows civilians to verbally argue with officers as long as they do not physically resist. However, “prolonged noncompliance” has supported convictions for obstruction in instances where (for example) people refused to exit their car for a long period of time after being so ordered.

Additionally, you cannot lie to police, but they can lie to you. If you provide material misinformation to an officer, and they rely on it, you can be charged with a felony offense. However, officers are allowed to lie to you about anything and everything to get you to say something incriminating. Be smart: keep your mouth shut instead.

The Student:

In the above example, police might have been authorized to seize the student’s phone if they had a reason to believe the phone held evidence of a crime and they had reason to believe that the student would destroy the evidence before they could obtain a warrant. However, upon watching the video, it is quite clear that none of the officers had any good-faith belief that the phone held any evidence. In my opinion, they were simply trying to intimidate the student into giving a statement to the detective against her wishes. Although such tactics by police are blatantly unconstitutional, they are not at all uncommon. This student may have been able to secure her release within a few hours but many people are not so lucky.

The moral of this story, if there is one, is that standing up for your rights can be a difficult and grueling experience. However, if we don’t fight for our rights then we will lose them. I encourage everyone to fight for our rights after learning what they are. Please don’t just trust some random person on YouTube; they can get you in a great deal of trouble with their ignorance. For now, we will wish this student luck in overcoming Qualified Immunity (an explanation of which will wait for a later post) and applaud her resolve.

Bryan J. McIntyre, Attorney at Law