MI: Taking and searching def’s cell phone after DA’s interview was not by consent

Defendant was questioned under a prosecutor’s subpoena, and they decided to take his phone to search it. The state’s argument of consent fails because he was told they were taking it and had probable cause but they didn’t. People v. Frisbie, 2025 Mich. App. LEXIS 4130 (May 23, 2025) (unpublished):

The totality of the circumstances reflect that defendant did not voluntarily consent to the search and seizure of his cell phone. After the prosecutor finished questioning defendant, she told defendant that they were “taking [his] phone.” Before defendant consented, the prosecutor told defendant that: (1) she had probable cause to “just get the search warrant”; (2) defendant was “gonna give [his phone] to the detective”; (3) defendant did not “have a choice” in whether he gave up his phone; and (4) defendant could not leave. Defendant then became upset, firing off expletives regarding his frustration with not having his phone for work and telling the prosecutor that he wanted to be paid for the work that he was going to miss while they held his phone. Defendant only consented after the prosecutor told him that he would get his phone back “in a day” if he consented, but that he would likely not get it back for about a week if she had to obtain a search warrant. Therefore, the prosecutor’s statements that defendant’s choice to consent was “totally up to [him]” does not align with the interaction that actually took place. Additionally, although defendant signed a consent form for the search of his cell phone, the form was signed just two minutes after the aforementioned examination concluded, and there is no evidence that defendant’s outrage was lessened or that defendant was properly informed of his rights before signing the form.

Because defendant was told that he could not leave, that he did not have a choice in giving his phone up, and that he was going to give his phone to the detective, defendant’s consent was not “freely and voluntarily given” under the totality of the circumstances, and the consent exception to the warrant requirement was not met. Mahdi, 317 Mich App at 460. Accordingly, the trial court clearly erred by denying defendant’s motion to suppress. See Id. at 457. Suppression of the unlawfully obtained evidence and any of its products or results is the correct remedy for this illegal search and seizure. See Cartwright, 454 Mich at 557-558.

Notably, plaintiff argues that exigent circumstances existed for the seizure of defendant’s cell phone, reasoning that “the risk of imminent destruction of evidence supported the seizure of Defendant’s phone”; therefore, defendant only needed to consent to the search of his phone. But, for the reasons previously stated, defendant’s consent to the search of his cell phone was coerced, and therefore, invalid. Accordingly, any argument regarding exigent circumstances would fail on its face.