ACLU San Diego Questions Law Enforcement For Keeping Protesters' Cellphones

"Based on what we know, it appears they're in clear violation of either Cal ECPA or the Fourth Amendment."

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Representatives with the American Civil Liberties Union San Diego and Imperial Counties claim local law enforcement have not returned cellphones obtained after arresting at least half a dozen protesters in downtown on Aug. 28.  

ACLU San Diego joined forces with Community Advocates for Just and Moral Governance and Singleton Law Firm to write a letter asking for an explanation as to why the cellphones have not been returned to the owners.

The letter was addressed and emailed to San Diego Sheriff William Gore, District Attorney Summer Stephan and San Diego City Attorney Mara Elliot.

“We’re very concerned that this is either an overreaction, an invasion of privacy, attempt to chill and deter protest, but again, we don’t know because they haven’t told us, and that’s part of the problem here, a lack of transparency,” said David Loy, ACLU San Diego and Imperial Counties legal director. “We understood that either police, or deputy sheriffs or both, had seized cellphones from people arrested on or about August 28.”

A lieutenant with the San Diego Sheriff’s Department told NBC 7 deputies did not collect cellphones at a protest Aug. 28 and is not holding on to phones that belong to released inmates.

An SDPD spokesperson told NBC 7 on Monday that cell phones are only confiscated when police believe they hold evidence of a crime, and said the process of determining the status of the seized cell phones could take time.

NBC 7 has not been able to confirm the specific charges facing arrestees who allegedly had their phones taken, but criminal defense attorney Marc Carlos said a cell phone shouldn't be held over an arrest on a charge like unlawful assembly and thinks the alleged crime would have to be more severe.

Police are accused of taking and not returning protesters’ cellphones and as a response, the ACLU fired off a letter regarding the matter.

However, "If they believe that the phones have evidentiary value they can hold them, but they still need a warrant to get inside the phone," Marco said.

A warrant would allow law enforcement to hold the phone for 90 days, but a judge could allow for an extension, according to Carlos. Carlos said it could take months for investigators to perform a complete download of a phone's data. SDPD said it isn't required to notify the owner of a cell phone it's searching if it receives a warrant.

"It appears, without knowing more, the police or sheriff, whoever is holding them (cell phones) is, in clear violation of the Fourth Amendment by holding the phones without obtaining a warrant or returning the phones to the owners," Loy said. “It raises very troubling questions about whether, and to what extent, law enforcement is potentially investigating people for their assembly and right to protest as opposed to other crimes they may or may have not commit.” 

According to a spokesperson with ACLU San Diego, a representative with the Sheriff’s Department responded to the letter the day it was released and asked for a list of those who claimed their cellphones were not returned to them after being arrested. San Diego Police are also, now asking for the same list of names.

Loy told NBC 7 he is working on gathering a list and added, “The burden is not on us to solve their problem. It’s their burden to solve the problem. We are investigating.”

Loy also said ACLU San Diego is not ruling out litigation if necessary. Both the district and city attorneys were named in the letter. The DA referred NBC 7 to the Sheriff's Department. A representative for the City Attorney’s office said the letter was referred to the mayor of San Diego, who oversees the police department.

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