Stony Brook protests: Questions over seizure of demonstrators' phones
Protesters march on campus at Stony Brook University on Wednesday. Credit: James Carbone
When campus police arrested 29 students and professors at Stony Brook University during a pro-Palestinian protest on May 2, they handcuffed them, detained them for 7 ½ hours — and, according to the protesters, took away at least a dozen of their cellphones.
They never got the phones back.
That, experts say, raises questions about whether authorities in taking and keeping the phones of protesters violated the Fourth Amendment protecting Americans from unreasonable searches and seizures.
School officials warned students protesting last week that they had to move from the grassy hill where they had camped out, saying it was needed for other events. But the demonstrators refused, triggering the arrests on disorderly conduct charges and the confiscation of the phones.
A half-dozen legal experts and criminal defense lawyers consulted by Newsday said campus police should have returned the phones, unless the devices are part of an investigation.
“The arrests don’t particularly shock me, but this does,” said Fred Klein, a professor at Hofstra University School of Law and a former chief of the Major Offense Bureau in the Nassau County District Attorney’s Office. “The holding on of the phones, I don’t see any legal justification for that.”
Civil liberties experts see the move as an attempt to intimidate protesters.
“It could be punitive, and it’s an effort to chill exercising First Amendment rights — if you come out and you engage in peaceful protest we are still going to take your devices away,” said Irma Solis, director of the Suffolk County chapter of the New York Civil Liberties Union.
Stony Brook initially referred inquiries this week to the Suffolk County District Attorney’s Office, where spokesperson Emily O’Neill said, “We are unable to comment at this time.”
But late Friday night, a few hours after Newsday published a story on its website, the university sent out a statement saying it is working on the case with the District Attorney's Office, and that “several individuals have been contacted to have their phone returned to them.”
“All legal procedures have been followed and all rules of evidence have been adhered to. No property has been or will be searched without the appropriate legal steps being taken,” the statement said.
Stony Brook University president Maurie McInnis has denied the university is stifling free speech, and says officials complied with the law.
“We fully stand by the actions we took before, during and after the events that transpired the evening of May 1st and have clearly and steadfastly stated from the beginning our belief that free speech and the right to protest are bedrock principles of Stony Brook University,” she wrote in a letter to the campus community last week.
Some faculty at Stony Brook see the seizing of the phones as part of an effort to create what they call an authoritarian police state. McInnis faces a “no confidence” vote in the Faculty Senate on Monday.
“Every American should be outraged and terrified” by the confiscation of the phones, said Josh Dubnau, one of two professors arrested. He said officials were going on a “fishing expedition” to try to find something against the protesters.
The university on Saturday did not immediately respond to questions about why the phones were taken, what crime if any was being investigated, why some phones are still being held, and whether the protesters were shown search warrants.
Legal experts said police will typically confiscate a person’s wallet, keys and other items while they are being processed for an arrest, but generally must return their property after they are released from custody.
“Our belongings are ours. There is no reason to keep it,” said Daniel Russo, a criminal defense lawyer in Suffolk County and a former assistant district attorney in Suffolk County.
However, police can and do keep people’s personal property in some cases where it may serve as evidence in a criminal case, such as a car in a drunken driving accident. If they do so, they must provide the person with a “receipt” or voucher showing why they kept the property and how they can retrieve it, said Keith Taylor, an adjunct assistant professor at John Jay College of Criminal Justice and a former NYPD sergeant.
“They have to give some sort of valid reason, because a phone is something that is vital to people in today’s society,” he said. “There has to be a level of accountability as to why a police agency is holding on to a private individual’s personal property. They can’t just hold on to things for no reason.”
Klein said “the only way they can hold on to your personal property would be if they have probable cause to believe there’s evidence of a crime involved, and they go to court and get a warrant.”
Dubnau said campus police did not give those arrested a voucher for their phones or a written explanation, or show them a warrant. They only said verbally the phones were taken “as evidence” for a “criminal investigation,” he said.
The case is especially puzzling because the protesters were charged only with disorderly conduct, which is a violation, somewhat akin to a speeding ticket, Klein said. They were not fingerprinted, photographed or arraigned before a judge.
“If they are giving somebody a summons for disorderly conduct, which is not a crime, technically they can’t even take the cellphone,” Klein said. “They are not allowed to search people if they are just giving them a summons.”
That could change, however, if police obtained a search warrant, he said. If federal authorities became involved in the case, they would have broader powers in terms of seizing phones, Taylor said.
Experts agreed that if police search a person’s cellphone, they must get a warrant from a judge and inform the person. If they don’t, it would violate the Fourth Amendment.
“They can’t just go joy riding through your phone,” Taylor said. “They are not allowed to do fishing expeditions.”
Dubnau said police did not show the protesters a warrant to search their phones and that the protesters have obtained evidence the police are doing so. Two received notification from Apple two days after the arrests that someone was using their phones, he said.
When campus police arrested 29 students and professors at Stony Brook University during a pro-Palestinian protest on May 2, they handcuffed them, detained them for 7 ½ hours — and, according to the protesters, took away at least a dozen of their cellphones.
They never got the phones back.
That, experts say, raises questions about whether authorities in taking and keeping the phones of protesters violated the Fourth Amendment protecting Americans from unreasonable searches and seizures.
School officials warned students protesting last week that they had to move from the grassy hill where they had camped out, saying it was needed for other events. But the demonstrators refused, triggering the arrests on disorderly conduct charges and the confiscation of the phones.
WHAT TO KNOW
- Stony Brook University is facing questions for confiscating and keeping the cellphones of some of the 29 students and professors arrested last week in a pro-Palestinian protest.
- Legal experts say the move may have violated Fourth Amendment protections against unreasonable searches and seizures and is aimed at intimidating protesters.
- The university says it has followed the law and that free speech is a “bedrock” of its beliefs.
A half-dozen legal experts and criminal defense lawyers consulted by Newsday said campus police should have returned the phones, unless the devices are part of an investigation.
“The arrests don’t particularly shock me, but this does,” said Fred Klein, a professor at Hofstra University School of Law and a former chief of the Major Offense Bureau in the Nassau County District Attorney’s Office. “The holding on of the phones, I don’t see any legal justification for that.”
Civil liberties experts see the move as an attempt to intimidate protesters.
“It could be punitive, and it’s an effort to chill exercising First Amendment rights — if you come out and you engage in peaceful protest we are still going to take your devices away,” said Irma Solis, director of the Suffolk County chapter of the New York Civil Liberties Union.
Stony Brook initially referred inquiries this week to the Suffolk County District Attorney’s Office, where spokesperson Emily O’Neill said, “We are unable to comment at this time.”
But late Friday night, a few hours after Newsday published a story on its website, the university sent out a statement saying it is working on the case with the District Attorney's Office, and that “several individuals have been contacted to have their phone returned to them.”
“All legal procedures have been followed and all rules of evidence have been adhered to. No property has been or will be searched without the appropriate legal steps being taken,” the statement said.
Stony Brook University president Maurie McInnis has denied the university is stifling free speech, and says officials complied with the law.
“We fully stand by the actions we took before, during and after the events that transpired the evening of May 1st and have clearly and steadfastly stated from the beginning our belief that free speech and the right to protest are bedrock principles of Stony Brook University,” she wrote in a letter to the campus community last week.
Some faculty at Stony Brook see the seizing of the phones as part of an effort to create what they call an authoritarian police state. McInnis faces a “no confidence” vote in the Faculty Senate on Monday.
“Every American should be outraged and terrified” by the confiscation of the phones, said Josh Dubnau, one of two professors arrested. He said officials were going on a “fishing expedition” to try to find something against the protesters.
The university on Saturday did not immediately respond to questions about why the phones were taken, what crime if any was being investigated, why some phones are still being held, and whether the protesters were shown search warrants.
Legal experts said police will typically confiscate a person’s wallet, keys and other items while they are being processed for an arrest, but generally must return their property after they are released from custody.
“Our belongings are ours. There is no reason to keep it,” said Daniel Russo, a criminal defense lawyer in Suffolk County and a former assistant district attorney in Suffolk County.
However, police can and do keep people’s personal property in some cases where it may serve as evidence in a criminal case, such as a car in a drunken driving accident. If they do so, they must provide the person with a “receipt” or voucher showing why they kept the property and how they can retrieve it, said Keith Taylor, an adjunct assistant professor at John Jay College of Criminal Justice and a former NYPD sergeant.
“They have to give some sort of valid reason, because a phone is something that is vital to people in today’s society,” he said. “There has to be a level of accountability as to why a police agency is holding on to a private individual’s personal property. They can’t just hold on to things for no reason.”
Klein said “the only way they can hold on to your personal property would be if they have probable cause to believe there’s evidence of a crime involved, and they go to court and get a warrant.”
Dubnau said campus police did not give those arrested a voucher for their phones or a written explanation, or show them a warrant. They only said verbally the phones were taken “as evidence” for a “criminal investigation,” he said.
The case is especially puzzling because the protesters were charged only with disorderly conduct, which is a violation, somewhat akin to a speeding ticket, Klein said. They were not fingerprinted, photographed or arraigned before a judge.
“If they are giving somebody a summons for disorderly conduct, which is not a crime, technically they can’t even take the cellphone,” Klein said. “They are not allowed to search people if they are just giving them a summons.”
That could change, however, if police obtained a search warrant, he said. If federal authorities became involved in the case, they would have broader powers in terms of seizing phones, Taylor said.
Experts agreed that if police search a person’s cellphone, they must get a warrant from a judge and inform the person. If they don’t, it would violate the Fourth Amendment.
“They can’t just go joy riding through your phone,” Taylor said. “They are not allowed to do fishing expeditions.”
Dubnau said police did not show the protesters a warrant to search their phones and that the protesters have obtained evidence the police are doing so. Two received notification from Apple two days after the arrests that someone was using their phones, he said.
