Can You be Arrested for Refusing to Let Cops Seize Your Phone?

handcuffed hands with a mobile phone on wooden background
By George Khoury, Esq. on June 26, 2019 9:00 AM

A recent arrest out of Merrimack, New Hampshire, provides a rather important lesson for people being questioned by the police: If the cops want to seize your phone, don't resist, because resisting can lead to your arrest.

At least that's what happened to a Greenfield man when officers demanded he turn over his smart phone during questioning and he refused. When he later went to use the device during the interview, he was restrained by one officer while the other secured the device, then he was arrested for obstruction of justice.

Evidence of a Crime

If police believe that a smart phone contains evidence of a crime, they will still need to secure a warrant based upon probable cause to take it from a person and to search it. That's thanks to the Fourth Amendment's ban on unreasonable searches and seizures.

However, if a person provides the officers with any inkling that they might destroy the evidence on the device, the police may be justified in securing the device before obtaining a warrant. Generally though, a warrant is still needed to actually search the device, as once it is in the authorities' possession and turned off, there is very little danger of the evidence on the device being destroyed.

Obstruction of Justice

The criminal charge of obstruction of justice varies from state to state, and can be charged as a misdemeanor or as a serious felony (particularly under federal law). When charged as a misdemeanor, typically the penalty will be less than a $1,000 fine and no more than a year in jail. When charged as a felony, defendants can be looking at 20 years behind bars.

Obstruction generally occurs when individuals lie to the police or destroy evidence. It can also encompass things like intimidating witnesses, fabricating evidence, and all those other things that make for compelling television cop dramas.

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