Well what were the circumstances that cause them to take it? Without more information, it's impossible to tell. The answer could be yes, no, or maybe, but it all depends on the facts. I practice in Alameda County - feel free to contact me for a free consultation if you would like to discuss your case further.
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Police officers cannot seize you property for no reason. What was it about your phone that the officer took interest in. I suspect that there must be more to this story.
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People v. Nottoli 199 Cal.App.4th 531 (2011) The Nottoli court goes into an analysis of search and seizure law, starting with Chimel, then Belton, then Thornton, and Arizona v. Gant (2009) 129 S.Ct. 1710, and ends with the following understanding: that vehicles and their compartments can be searched incident to an arrest (even if the arrestee is already in custody) when “it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” Id. at 1714. They searched a phone and found incriminating evidence.
In your case, consider that they saw everything in your phone that was not password protected.
If it was taken as evidence, it was logged into evidence. Officers don't generally steal.
You need to ask for the phone to be returned to you.
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