How do we get a cell phone back from the police?

My son loaned his cell phone, which I own, to a friend to use. While they had the phone, they were in a vehicle with someone who was carrying a lot of drugs unknown by anyone in the car. They were all arrested and charged with a felony. The friend was searched but no drugs, etc. were found. The police took the phone and have not released it. Additionally, they were not allowed a phone call and no one knew where they were for 24 hours. They also had a preliminary hearing without an attorney present. Is this legal to not allow a call and can

we get his phone back?

Asked on May 27, 2016 under Criminal Law, Pennsylvania

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

You have several different questions..so I'll answer each in different paragraphs.  They seized the phone because they believe that some one was using it to make drug dealing transactions.  Your son's friend got looped in because the nature of being in the car made the drugs potentially accessible to all of the occupants in the car. 
So...to get the phone back, you will need to hire a criminal attorney to file a motion to get it back. However, you need to visit with the attorney first and see if you even want the phone back under these circumstances.  Until you look at your phone bill, you do not really know who your son's friend called and if he was involved or not.  You do not want to file a motion for the return of property and thereby get yourself involved as a potential suspect.
With regard to the phone call... they are allowed to make a call at some juncture, but it's not a bright line that will result in the supression of any evidence.  The boys can only really complain if they were completely denied a call... which they were not. 
The preliminary hearing is just an arraignment.  Very little happens at this hearing and attorneys are not automatic because it is at this hearing where they learn whether or not a defendant wants to request a court appointed attorney.  They are also advised of the charges against them.  A defendant is not required to make a statement or enter a plea.  It's main purpose is to inform a defendant of what their rights are so that they can invoke those rights.


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