The Problem With Cops Asking For Your Smartphone is That They Don’t Really Ask

08.15.12 Joshua Rivera

If your smartphone recorded a crime, and a cop asks you to hand it over, do you have to give it to them?

Yes and no. If you happen to be at the scene when a crime occurs, and record the incident using your phone, police would naturally want it. And with a court order, they can legally confiscate your phone/recording device whether you consent or not. But without one, you can say no. But most feel like they have to consent, anyway. And officers probably aren’t too concerned with educating bystanders about this either.

A New York Times story published yesterday highlights the ambiguity of situations like this in light of Sunday’s Times Square shooting, and how unclear it all is to the average person who police might ask to hand their phones over.

In 2009, Police Commissioner Raymond W. Kelly issued an order making clear that officers cannot demand to view photos or video footage without consent, barring “exigent circumstances.” Investigators prefer to download the video themselves, rather than rely on an individual to e-mail or copy the file for them. The reason, Mr. Cunningham said, has to do with the chain of custody.

But what are “exigent circumstances”? You mean like porn, Ray Kelly? You’ll know it when you see it?

If an officer does confiscate your phone, either by consent or court order, they’re required to furnish you with a voucher, which is a receipt you can use to reclaim your property once they’re done with it. Unless of course they don’t—the Times reports that one witness, Edgar Delgado, had his phone taken by a detective, but received no voucher. He then went two days without it, until the NYPD contacted his supervisor Tuesday telling him he could pick it up.

In short, there are rules for police to follow when they want something you have, but as a rule they might not follow them. And they probably won’t tell you about them either.

(Photo: Pascal Subtil/Flickr)