NY1: No due process violation in telling def he could bring cell phone to precinct house where it was ultimately seized

The state didn’t deny due process by telling defendant he could bring his phone with him to the precinct to talk with the officers because he would “probably be coming back.” Instead, they seized his phone then obtained a search warrant for it. The search warrant was valid, and there was no due process violation. People v. Simmon, 2019 NY Slip Op 02952, 2019 N.Y. App. Div. LEXIS 2959 (1st Dept. Apr. 18, 2019)*:

A detective told defendant that he would “probably be coming back” from the precinct and that he could bring his cell phone with him if he wished to do so. This was deceptive, because the detective actually intended to arrest defendant and hoped defendant would have the phone on his person so it could be seized. However, the deception was not “so fundamentally unfair as to deny due process” (People v Tarsia, 50 NY2d 1, 11, 405 N.E.2d 188, 427 N.Y.S.2d 944 [1980]), because it did not undermine the voluntariness of defendant’s actions. The detective only suggested that defendant might want to bring his phone, and the deception was not of a type that would compel him to do so (see People v Abrams, 95 AD2d 155, 465 N.Y.S.2d 208 [2d Dept 1983]). Thus, we find no basis to suppress the contents of the phone, which was seized incident to a lawful arrest, and searched after the police obtained an undisputedly valid search warrant.

This entry was posted in Cell phones. Bookmark the permalink.

Comments are closed.