By Elizabeth Wong, Associate Director

After CNN reported this week that police departments across the country are conducting warrantless searches of cell phones confiscated from arrestees, I began to wonder if this were happening in Virginia.

It is hard to know how often this occurs since it may rarely be reported, but I came across an intriguing case in Culpeper.  In March 2008, Nathan Newhard was arrested for driving under the influence and other misdemeanors.  While he was in custody, police searched the contents of the cell phone he was carrying, where they found nude pictures of Newhard’s then-girlfriend, Jessie Casella.

According to a civil lawsuit that Newhard and Casella filed against Culpeper police, the officer who searched the phone not only viewed the photos but also shared them with other officers.  Newhard and Casella alleged that the police had violated their privacy rights, as well as their Fourth Amendment rights against unreasonable searches.

In 2009, a federal district court judge dismissed the lawsuit, holding that Casella did not have an expectation of privacy because she had voluntarily given her phone with the photos to Newhard, and that his privacy rights were not violated because the photos were not of him.   The judge also noted that a federal appeals court had ruled in an earlier case that police may search the content of pagers belonging to arrestees, so cell phones would logically be subject to the same rules.

The issue here is “searches incident to arrests.”  While searches generally require a warrant under the Fourth Amendment, police are allowed to conduct warrantless searches of the immediate possessions of persons who have been arrested in order to confiscate weapons and to prevent destruction of evidence.

The question, then, is whether cell phones fall under the rules for warrantless searches or the rules for most other searches where a warrant is required.

And, there is no definitive answer.

In California, for example, the state Supreme Court recently ruled it was legal for police to search the contents of an arrestee’s cell phone without a warrant (People v. Diaz, 51 Cal. 4th 84).  Since the cell phone was found on the arrestee’s body, the court said, it could be searched in the same way that the pockets of clothing could be searched.

Similarly, a Florida appellate court upheld a lower court’s decision allowing police to search a cell phone found on an arrestee because it was a ‘container.’ The court likened the cell phone to a pack of cigarettes, which could be searched for contraband (U.S. v. Robinson, 1973).

However, the Ohio Supreme Court recently ruled against warrantless cell phone searches, reasoning that searches incident to arrests apply only to protect law enforcement officers’ safety and the preservation of evidence.  In the instance of cell phones, the court said, safety is not a factor, and if there is reason to believe there is evidence on the phone, the police can simply go to a judge, explain why a search is necessary, and get a warrant.

In the age of iPhones, Blackberries and Droids, cell phones are more than devices to speak with someone else.  While in some circumstances they may contain evidence related to a crime, they also can also contain years of a person’s life history in the form of emails, pictures, videos, text messages, voice mails, social networking access and other revealing information, such as the apps they’ve loaded on the device.

After someone is arrested for a crime, police may wish to search that person’s home.  But they can’t do that without first convincing a judge that the search is likely to yield evidence related to the crime and obtaining a warrant.  Today, one’s cell phone may contain as much information as his or her home and should be equally protected from government searches.

With the courts up in the air on this, it makes sense for Virginia’s legislators to set things straight by passing a law that prohibits warrantless searches of cell phones.  It’s as simple as that, and there’s no reason such a bill can’t get bipartisan support since it should appeal to the entire spectrum of political philosophies.

We suggest you contact your state legislators now, and ask them to introduce such a bill in the 2012 General Assembly session.