Local attorney fired up after Lee deputies seize cell phone without warrant

Lee deputies seized cell phone after scuffle
Posted at 10:21 PM, Jul 15, 2016
and last updated 2016-07-15 22:21:49-04

LEE COUNTY - A local attorney is fired up after a Four in your Corner investigation.

Last night we showed you how Lee County deputies seized a man's cell phone after he began recording a scuffle with officers. He was just a bystander but police took the phone without a warrant and the attorney says that's against the law.

Alex Martinez says Lee County deputies used excessive force while arresting his friends this past Monday.

He says that's why he used his cell phone to record the incident, something officers apparently didn't like.

Martinez tells us the deputy, "Came up to me, he saw me recording and he smacked the phone out my hand and when I picked my phone up my whole screen was cracked."

Lee County deputies claim that phone's video may help them prosecute a man who they say kicked an officer.

But Martinez himself wasn't involved in the scuffle and deputies never provided a warrant to seize his phone.

Fort Myers attorney, Joe Viacava, who's not involved in this case, says it’s his legal opinion that deputies had no right taking the phone. He also says it doesn't surprise him.

Viacava says, "Why wouldn't you want them videotaping what you're doing? So they have no right to tell somebody not to do that, there's no legal reason to do that.”

“We have many cases like this, this is not the first time this has happened. This is a huge issue, what you're talking about is a police officer doing their job and a citizen wanting to document that, there's nothing wrong with that."

On Thursday, Martinez spoke with the Lee County detective who's holding his phone.

She told him the video he shot is evidence and she needs his pass code and authorization to access the phone and get the video.

She went on to say that if he doesn't cooperate with them she'll keep the phone until she can get a warrant sometime next week.

We asked Viacava if this sounds like a case of bullying.

Viacava told us, "It doesn't sound like they're bullying him they are bullying him, and remember, anytime a police officer asks you to do something that means they can't do it."

Martinez is now confused and is questioning whether officers even have the right to seek a warrant and seize his video.

Martinez speculates, "Unless they're scared, you know, they might find something on the video that's going to be against the officer instead of us and that's probably why they took it."

We contacted the Lee County Sheriff’s Office about this issue on Thursday but still haven’t heard back from them.