Eileen Grench, THE CITY, Chalkbeat New York
Mar 29, 2:24pm EDT
After cops arrested a Brooklyn teen last spring, an officer at the precinct assured him police would soon return his possessions: house keys, an iPhone and $10 bill folded in its case.
“They said I can get my property back after they run me through [the system] and speak to my mom,” said the 15-year-old, whose name being withheld by THE CITY due to his age and pending case. “I said, ‘Okay, I need my phone.’”
He hasn’t seen the phone since.
The NYPD seized more than 55,000 phones in 2020, city data shows, and returned 60% of them.
And while the number of phones taken was lower than the 90,000 in the previous, pre-pandemic year, so was the percentage given back. About 70% of phones confiscated in 2019 were returned.
It’s never easy for someone to lose a phone under any circumstances.
But children, parents and juvenile justice advocates interviewed by THE CITY say that when a young person’s phone is taken during the pandemic, the toll goes beyond inconvenience and frustration — they’ve lost a lifeline.
And while recent lawsuits and City Council legislation have attempted to accelerate the return of property, many say closed courts and other coronavirus restrictions have made getting phones back harder than ever.
Meanwhile, some lawyers who represent juveniles worry police could be cracking into held cell phones for surveillance as calls questioning the expanding gang and DNA databases rise. They’re also questioning whether phones are always really needed as evidence in most cases they’re confiscated from kids.
“It’s like, you can’t even imagine what the phone has to do with the case. And it’s vouchered as ‘arrest evidence,’” said Nikki Woods of New York County Defender Services.
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The past year had already been difficult for the Brooklyn teen. His mother battled COVID-19 and other family members died of the virus. The family’s apartment was damaged, variously, by flood and fire.
Without the phone, life got even harder.
The youth, who has a learning disability, had navigated online classes with the phone and called friends when he needed homework help, his mother said.
Four siblings were now forced to share two devices — stretching their abilities to attend school. And his mother still had to make monthly payments on the confiscated phone, a burden on her home health aide salary.
The boy has struggled to connect to friends and family, he and his mother noted. Playing music on his phone, he said, helped get him through trying times. He had written his first good rap lyric on the mobile Notes app, the teen declared proudly.
“This court case just keeps going on. It’s just too much, all of this,” his mother told THE CITY. She finally bought another phone for her son after the family lost a laptop in the fire, adding to her financial challenges.
“Bills and bills and bills,” she said. “I’m going to start crying. It’s the little things that be the big things.”
A missing phone also means extra hardship for children caught up in the juvenile justice system.
“Everything they do they have to do it on the phone,” said Katherine de Zengotita, a senior trial lawyer at New York County Defender Services.
“A child who doesn’t successfully complete programming, therapy, probation monitoring, curfew checks like all this kind of stuff, that child is much more likely to get a jail sentence,” she added.
Whether a phone is vouchered as evidence is up to cops, who, some lawyers for juveniles say, sometimes make dubious decisions.
Woods cited the case of a client recently arrested for alleged possession of a weapon, connected to an incident that took place last summer. Yet a phone he’d just purchased in January 2021 was seized as evidence, she said.
A Brooklyn father said his child is in a similar situation. And he noted that he hasn’t seen any evidence a judge issued a warrant to search the device.
“I don’t understand how that is even possible,” said the father, whose name is being withheld to protect his son’s identity. “Like, was that [a law] that was passed that nobody knows? Or is this really a legal procedure?”
After his phone was seized, his son had to make sure his father — who works delivering packages — or his grandmother were home in order to be able to attend school, court and meet with probation officers.
“All you’re doing is hurting the child, man, you making it worse,” he said. “The kids need help. There’s no help.”
A Bronx teen who had his phone taken by police when he was arrested in 2019 said the lack of connectivity can be an emotional strain.
“You can’t contact nobody. Your friends can’t contact you, said the 16-year-old whose name THE CITY is withholding. “Your family can’t contact you. They don’t know you’re okay. Like, it takes a toll mentally.”
One group of privacy advocates has been fighting the NYPD in court to better understand why cell phones are seized from New Yorkers — and what happens when they are taken.
“This seems to be an area where the NYPD is systematically thwarting public oversight,” said Albert Fox Cahn, the executive director of the Surveillance Technology Oversight Project (STOP), which filed a lawsuit against the NYPD in 2019 to get answers on the use of “mobile device forensic tools.”
“And it’s, it’s deeply concerning to me.”
The suit seeks to help the public better understand how the department may be using devices that can break into and extract data from cell phones in a city with a history of tracking kids through the apps on their phones. One aspect the NYPD is fighting them on, said Cahn, is disclosing what crimes in particular are the subject of seizures and searches of cell phones.
STOP represents the tech-justice nonprofit Upturn, which recently released a report, titled “Mass Extraction,” on efforts to understand how police agencies nationwide use the devices. The NYPD was one of the agencies that refused to turn over data, according to the report.
An NYPD spokesperson refused to say what percentage of phones held as evidence were ever opened with a warrant, or what kind of training officers receive on vouchering evidence.
The patrol guide is missing the pages for the procedure regarding “Prisoner Cellular Telephone(s).” A fully-intact 2013 version of the NYPD guide online stated that cell phones should be invoiced for “‘safekeeping’ unless the circumstances regarding the arrest indicate that [it] should be invoiced as ‘investigatory evidence’ or ‘arrest evidence.’”
The NYPD did not answer THE CITY’s follow-up requests for the missing section of the patrol guide.
The law McRorie cited states that an investigating officer can sign off for release of a phone if it’s merely being held for “safekeeping.”
But defense attorneys say cops routinely classify cell phones as evidence even when they have nothing to do with the case. That means that prosecutors then have to give the OK for release.
As juveniles’ phones are held, the Fourth Amendment right against unlawful surveillance isn’t only at risk, said Johanna Miller, director of education policy at the New York Civil Liberties Union — so is the right to a decent education.
“I think we’re seeing that over and over and over, like, as an institution, [the NYPD] are in no way equipped to meet the needs of kids or the education system,” Miller said.
Because so many phones are seized — more than 135 a day on average, for adults and children alike — defense lawyers say they are inundated with calls from kids and parents asking for help getting their phones back.
“The way that that whole system was set up was for it to be a temporary seizure, not a permanent one,” said Niji Jain, an attorney at The Bronx Defenders.
The organization in 2016 filed two lawsuits, both settled two years later, against the NYPD and the Bronx District Attorney’s Office to help streamline the return of property and increase transparency around the process.
Still, Jain said, “The problem is that there aren’t safeguards in place to prevent people’s stuff falling into a black hole, because nobody is doing the steps necessary to give it back when that time is right.”
When a child is arrested, cops will take personal property and issue a voucher — whether the items are marked for safekeeping or as evidence.
Property taken for safekeeping usually can be retrieved from the precinct.
Items marked as evidence are held until the end of a case, or until a prosecutor writes a letter allowing their release.
But the onus is on the family to initiate the process. This leads to what de Zengotita described as a “wild goose chase” sending parents variously to police precincts, district attorney’s offices and the city Law Department.
“In ‘normal’ times, a phone getting inexplicably vouchered as arrest evidence and remaining unobtainable until the completion of a months-long case is hardship enough,” de Zengotita told the City Council’s Committee on General Welfare in February.
“But in a time when that phone represents a young person’s entire ability to engage with family, school, work, and, most relevant here, court appearances and obligations, and when cases are dragging on for many months longer than usual, that confiscation is completely unjust and unacceptable,” she added.
Oren Yaniv, spokesperson for the Brooklyn district attorney, said that decisions to release phones are made on a case by case basis. His counterparts in Queens said they return almost all of the property they get requests for — reporting that since 2019 all but 7% of 4,700 requests were granted and others were deferred for legal reasons.
But they could not say whether the returns were before or after court proceedings concluded, or how many search warrants had been issued to crack mobile devices.
Representatives for The Bronx, Manhattan and Staten Island district attorneys did not respond to requests for comment.
Before cases involving juveniles are either transferred to or filed in Family Court, the case has to go through the probation department for review. The process means minors whose phones are vouchered as evidence face an additional delay of up to 90 days until the case is handed off to prosecutors before being able to request a letter of release.
The Law Department, which represents the city in Family Court understands “the increased significance of cellphones and other devices in meeting the need of families to access school and services during this difficult time,” Family Court Division Chief Jennifer Gilroy Ruiz said in a statement.
The office has set up a process in each county to “streamline the ability of attorneys on individual cases” to figure out whether property is needed as evidence or not, Ruiz wrote.
The teen from Brooklyn is still waiting for his own case to move forward.
He got his house keys back from the precinct, but not his $10.
He and his lawyers are also still waiting for the release for his phone — and news of whether it was searched for evidence.
“I just feel like [the police] don’t care because it’s not their situation,” the teen said. “They don’t care that my mom has to pay every month just for something I don’t even have in my hands. Nobody cares.”
And while he used to write lyrics on his phone, he’s stopped trying to make music. His mother said she’s trying to buy him a computer to compose new rhymes, but he said that wouldn’t help.
“I’m just never writing nothing else, because I ain’t getting nothing taken from me.”
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