03/28/2023

Did the Normal Police Department have a right to seize Taylor Brown’s phone without a warrant and arrest her?

[Editor’s note: The author is not an attorney, and his statements should not be construed as legal advice.]

It’s been a little over a week since a now viral series of videos were released by Agitation Rising showing the violent arrest of Taylor Brown by the Normal Police Department.

Brown was at the police station to be interviewed about a fire that occurred at her residence on February 9^th, 2023. After waiting 40 minutes, Brown decided to leave and refused to consent to an interview at that time. She asked to be taken somewhere for her to sleep. As she waited in the lobby, Officer Serena Cunningham was informed by Detecting Tyler VanWynsberg to seize Brown’s phone, even though they had no warrant to do so.

Brown refused to hand over her phone, resulting in a violent confrontation between her & the police which landed her in jail. However, she was released an hour later with no charges, and her phone was returned to her. No search warrant was ever granted by a judge for the phone.

Brown has since filed a federal lawsuit alleging false arrest & excessive force.

The key question is, did the Normal Police Department have a right to seize Taylor’s phone without a warrant? There are reasons why police are able to seize property without a warrant. For instance, if while being arrested, a phone falls out of a person’s pocket and is picked up by police officers, that could be considered a seizure of the phone.

However, Taylor Brown was not under arrest at the time and was free to leave the police station.

The police could also seize something if they have a reasonable suspicion that evidence may be destroyed. If the police believed there was evidence on Brown’s phone of a crime and there was a good chance such evidence might be destroyed, then they could seize it prior to getting a warrant.

In an interview with local Insurrection Radio Cities 92.9, NPD Chief Petrilli said that police can seize property without an arrest or warrant. All that is required before seizing property is a reasonable suspicion that a crime has been committed. Therefore property is often seized to protect potential evidence. This is especially true of electronics.

After the property is seized, Police then can go and get a warrant. After getting a warrant they can search the property, which in many cases is an electronic device according to Petrilli.

Petrilli used as an example a crime scene. Police can seize an entire property and not allow even the owner or tenant back inside until they have completed their investigation. In a case like this many electronic devices can be seized along with the property itself. After the property is seized then the Police can go get a warrant before searching the property and/or items on the property such as electronic devices.

The author of the Cities 92.9 article, Kevin Woodard, told Agitation Rising:

“My main thing is we have to educate people so that they don’t get hurt or killed. People need to realize that by continuing to resist and especially by fleeing that they are putting themselves in harms way. At some point it becomes in your best self interest to just do what they say. Then you can get an attorney later.”

Kevin Woodard, Cities 92.9

In a WGLT article, reporter Charlie Schlenker interviewed two Illinois State University criminal justice scientists on their thoughts regarding the legality of the seizure & subsequent arrest: Michael Gizzi and Bill Lally.

Gizzi called the incident “troubling” and said:

“It was as if the officer was almost goading her. She was escalating conflict instead of de-escalating a situation, continually saying we’re taking the phone, we’re taking the phone, we’re seizing the phone.”

Michael Gizzi

On the other hand, Lally, also a police officer, acknowledged the repetition of the same set of words could be viewed as provocative. But he said the reason officers do that kind of thing likely came from a desire to stay on one line of dialogue. Lally said argument usually doesn’t produce a resolution, so officers do not stray from the intent. In this case, they say they needed that phone.

Lally acknowledged if officers had clarified what they were after, or tried in a different way to talk Brown down as things escalated, they might have reduced tension. But that doesn’t mean they did anything wrong at the time, according to him.

But, the officers were not only requesting the phone be handed over. They were requesting that Brown do an interview with Detective VanWynsberg without an attorney regarding the fire that occurred at Brown’s apartment. Prior to the violent seizure, Officer Cunningham asked in some form or another ten times whether Brown would do an interview with Detective VanWynsberg, though Cunningham made it cleared the phone would be seized regardless. After Brown was in cuffs, Detective VanWynsberg asked Brown another seven times whether she would do an interview with him without an attorney. Both Detective VanWynsberg & Officer Cunningham made clear Brown would still be charged with Aggravated Battery of a Police Officer and Resisting a Police Officer even if she did the interview.

Chief Petrilli told Woodard that officers go through high levels of training and that when they are in situations like this they refer to their training. What seems clear is that officers were attempting to coerce Brown into an interview without an attorney. Now, if this went in front of a judge, would a judge rule they attempted to coerce her? No. As Chief Petrilli said, his officers are well-trained in exactly what to say when leveraging state power against an individual to achieve their ends without running afoul of judicial review.

However, Brown was released from jail without any bond or any charges. No warrant was ever obtained for her phone, and the police returned it to her.

A State’s Attorney has ENORMOUS prosecutorial discretion when it comes to filing charges. Based on the video footage and the incident reports, Brown physically made contact with at least two officers. That’s two class C felony counts.

The State’s Attorney could have easily charged Brown with those offenses, and Brown would likely have had little recourse until her first pre-trial hearing which could be up to a month after the incident. The State’s Attorney could also have dropped the charges at a later date. The point is to leverag state power against a person in an attempt to coerce them into cooperating with an investigation.¹

Yet, the State’s Attorney has not chosen to do this. If charges were not filed and a warrant was not granted, then the whole incident was unlawful,² and Brown was defending herself from police abuse.

As ISU professor Gizzi stated: “To me, the true lesson is, and it’s unfortunate one but, I would never, under any circumstances go to a police department for any interview at all without an attorney present. Because you have no idea what the reason is and what they are thinking as to why they want to question you.”

Gizzi’s statement is excellent advise. You have a constitutional right to an attorney. But, if you don’t have the kind of expendable income to have a lawyer on retainer or hire one last minute, in many ways this right can appear meaningless. One cannot call the public defender’s office and ask them to be present for a police interview. In fact, public defenders offices usually won’t even talk to you until a judge has officially assigned them to you.

This clearly wasn’t the case regarding Taylor Brown. Brown says–in a TicTok video about the incident–that her mother is a Chicago Police Detective, and she comes from means.

But, there’s a very real class-based burden to upholding your constitutional rights if you are working class.

Taylor Brown has not been charged with any crime as of the publication of this article. Should she be charged, she is innocent until proven guilty.

FROM BLONO WITH LOVE

AGITATION RISING NEWS

1. Of course, the State’s Attorney could still indict Brown on those charges as the statute of limitations on a Class C Felony is three years.
2. At least, it should be considered legally unlawful.