LEO seizure of your assets and information needs to be anticipated and prepared for, says Fairfax criminal

LEO seizure (law enforcement officer seizure) of arrestees’ assets and information is commonplace. As a Fairfax criminal lawyer, I know that even innocent property owners can be harmed in the process. Ask yourself soon, not later, what you will do to reduce the harm of such seizures. Police often seize arrestees’ and suspects’ cellphones, computers and digital storage devices, and obtain court orders permitting them to search those devices. Many police departments love seizing cars and other assets that are arguably related to illegal drug activity and other illegal activity for seeking to get the property forfeited and then owned by the government. If you have substantial cash with you when arrested for alleged drug trafficking, that substantial cash may be used as evidence that you were trafficking and not simply using, and may be seized in asset forfeiture proceedings (and the Supreme Court in Culley v. Marshall, No. 22–585, ___ U.S. ___ (2024) has rejected giving you an opportunity to challenge such a seizure right away in court, unless otherwise provided by statute.) Backup your cellphone, computer and digital data, and save it in a safe and retrievable place or places. Be careful whom you let drive your automobile or whom you allow into your home, to minimize becoming the innocent owner of property that gets put into forfeiture proceedings. Beware carrying more cash than you can afford to be without.

Be ready to pursue court intervention to retrieve your cellphone or computer data caught by LEO seizure

Do not expect police nor prosecutors voluntarily to provide you a copy or original of your digital data after a LEO seizure. Moreover, if the police investigation or prosecution alleges possession or distribution of child pornography or obscenity, do not expect the court to require the police to provide you a backup copy of the lawful part of your data, to avoid the risk that the backup copy will include unlawful images. Your best best for convincing a Virginia trial judge to order the original seized data or a copy thereof to be returned to the defendant is to show the extent to which the data is needed for defending against the criminal charges. At the very least, make sure you know essential phone numbers and have access to other vital data for your personal and work affairs. Moreover, even without law enforcement seizure of your digital data, you need to be ready for what to do if your cellphone, Ipad or laptop computer get lost or stolen.

Beware having your computerized hardware seized on returning to the United States

Think twice before leaving the United States with any electronic devices other than what holds the bare necessities of data and information. Beyond LEO seizure risks, United States Customs authorities will sometimes seize and thoroughly search through that data. Do not expect automatic relief against such searches, and do not expect such searches to take less than a few days or longer. If you do or may have child pornography or obscenity on your computer, watch out not only for United States authorities to find such imagery on your return to the United States, but also watch out for what happens with authorities in other countries. Be aware that any child pornography or obscenity that you see on your device gets saved onto the device by way of imagery or other data.

How do I pay for a Virginia criminal lawyer after police take possession of my assets?

Despite your Sixth Amendment Constitutional right to effective assistance of a criminal defense lawyer, degrading that right is the ease with which LEO seizure of your assets and property can turn into risking losing your property through civil asset forfeiture laws, that do not require more than probable cause to link designated criminal activity to the seized assets. Remember that before you decide to have much cash anywhere but your bank account, and before you decide to sink substantial funds and loan money to cars, real estate and other big ticket items. When the seized assets’ owners do not want to risk losing those assets to forfeiture proceedings nor waiting for a forfeiture hearing, sometimes the seizing agency will agree to sell them back their property for less than the property’s value, which more immediately lines government agency coffers, thus underlining why so many police departments and prosecutors’ offices place a high priority on seeking asset forfeiture.

Beware allowing your cellphone passcode to be bypassed by facial recognition, thumbprint, or telling your password to police in order for you to make a phone call

Absent exigent circumstances or consent, the Supreme Court requires a search warrant for police to search your cellphone obtained through LEO seizure. Riley v. California, 134 S. Ct. 2473 (2014). Even after police obtain such a search warrant, LEO still needs to deal with any passcodes on your device, whether by obtaining that from you or by obtaining a court order for you to provide the passcode to LEO (which you may or may not be able to successfully challenge on Fifth Amendment or other grounds). Think twice about programming your cellphone to bypass any passcode through facial recognition or a fingerprint, which will enable police to access your cellphone data after obtaining a search warrant. Also beware telling police your cellphone passcode in exchange for police to permit you to call or text a friend or family member to let them know you have been arrested and/or to seek a criminal defense lawyer. Once you provide your passcode, the police can simply keep manipulating  your cellphone to avoid needing to input a password once a search warrant is obtained for your device.

Fairfax criminal lawyer Jonathan Katz relentlessly fights for your best defense against Virginia DUI, felony and misdemeanor prosecutions. Call 703-383-1100 ,email info@BeatTheProsecution or text 571-406-7268 to secure your free in-person confidential consultation with Jon Katz about your court-pending prosecution.