Legal Question in Criminal Law in Texas

First, the person needs a lawyer to represent him/her on the possession case. That lawyer can then ask for the "evidence" that is not needed in the case to be released.

Technically, unless the person is arrested with a load of marijuana which indicates that the person is dealing, then what relevance is the phone? It should not be looked at or kept. It is not evidence in the possession of a small amount of marijuana.

If the police have some information that the person is dealing, then they could keep the phone BUT they would have to get a warrant to search the phone. If they do not seek or get a warrant, then the phone should be returned because it is not evidence. And, if they go through the phone without obtaining a warrant, then any evidence they obtained they cannot use against the person. That said, they could call numbers from the phone and perhaps develop cases against others who do not have a right to privacy in the phone and would not have the right to suppress the evidence.

To get a search warrant for the phone relevant to a drug case, generally there must be evidence that the person is dealing drugs and that the person is using the phone to further his criminal activity.

And, let's say that they get a warrant to search the phone for evidence of drug activity - texts, photos, etc. If during the search they find illegal pornograph, then they immediately stop that search and get another warrant for the porno search. (Had a federal criminal case in which the police got warrant to search computer for evidence of drug dealing. They found photographs that were illegal porno. The cops tried to claim that they then continued to open each photo because they didn't know if it was going to be drug related or porno. The titles of the photos indicated that they were porno related, and the judge didn't find their efforts to lie humorous and suppressed the evidence in a large child porno case.)