Can the police search your phone in Virginia? Recently, the Virginia Court of Appeals made a decision regarding the unwarranted search of cell phones. This controversial decision has residents questioning the privacy rights of Virginians and their cell phones.

Futrell v. Commonwealth

In this case, the court held that police do not need a warrant to search the digital contents of an “abandoned” cell phone. During the investigation of a shooting, police found a cell phone in at restaurant. Instead of getting a warrant to search the phone, police simply turned it on and looked through it. The information they found was used to locate and arrest the phone’s owner.

While Futrell recognized that warrantless searches are presumptively unconstitutional, and that police cannot simply search a phone as an incident to a person’s arrest, the court allowed the search because the phone was deemed abandoned. Consequently, the phone’s owner lost “any privacy interest he may have had in it or in its contents.”

Essentially, any Virginians who intentionally leave a cell phone behind can risk a court ruling that they have no privacy interest in its digital contents. There is no warrant required to search the phone and nothing inside is off-limits if a court decides that an owner abandons their phone, and gives up any expectation of privacy in its contents. The emails, apps, texts, photos, and more are all open to be searched by the government.

Privacy Violations?

This development is concerning for many people. On average, people lose one smartphone each year. However, there is a very thin line between losing a phone and abandoning one. The courts will struggle with that distinction, but the two primary factors that will be considered are 1) whether you physically relinquished the phone, and 2) whether you denied ownership of the phone.  The decision in Futrell is especially controversial because Mr. Futrell never denied ownership of the phone, but the court nonetheless ruled that he abandoned it based on the physical relinquishment factor.

Ultimately if the court rules that the phone was abandoned, neither the phone nor its digital contents receive Fourth Amendment protection.  Furthermore, this also applies to phones thrown away or traded in. Since these are almost certainly abandoned, police can collect the phones and search their digital contents without a warrant.

Abandonment Doctrine

Futrell erred in treating cell phones like other physical objects. This applied the “abandonment doctrine”. This principle of constitutional law was first articulated in 1924 in Hester v. United States. During this case, the Supreme Court allowed a warrantless search of a moonshine bottle a suspect threw away (abandoned) while fleeing police. The Supreme Court later applied the abandonment doctrine to allow warrantless searches of a pencil, drug paraphernalia left in the trash, and other physical objects and containers.

Cell Phone Considerations

Since cell phones have such large storage capabilities, the search of a cell phone involves a much deeper invasion of privacy. The immense amount of personal and private information that cell phones contain would simply have been unfathomable to the courts of 1924.

Our cell phones are used as cameras, navigation devices, web browsers, personal assistants, and so much more. No to mention cloud computing allows cell phone to access years, if not decades, of medical records, emails, location data, bank records, photos, and more. Can a person really abandon this information, even if a phone is discarded? Futrell says yes.

Legal Precedence v. Technology

In 2001, Kyllo v. United States warned against this type of “foolish” mechanical extension of Fourth Amendment doctrines to modern day technologies.

In 2014 Riley v. California said equating searches of ordinary physical items with searches of cell phones “is like saying a ride on a horseback is materially indistinguishable from a flight to the moon”.

Again in 2018 the court in Carpenter v. United States emphasized that judges should not “uncritically extend existing precedents when confronting new concerns wrought by digital technology”.

Unwarranted Phone Searches in Virginia

While the Virginia Supreme Court will have an opportunity to review the Futrell decision, anyone concerned about the legality of an unwarranted phone search should speak to an attorney. If you believe that the government has overreached by invading your digital life, please contact King, Campbell, Poretz & Mitchell.