Can Police Search Your Cell Phone? UVA Law Students Tackle Emerging Legal Questions with Independent Study Projects

By Brian McNeill | University of Virginia School of Law

Gober-Sims

University of Virginia law student Aaron Gober-Sims is working on an independent research project that will result in a paper, “From Cigarette Cartons to Cell Phones: Technology Continues to Advance, but the Search Incident to Arrest Doctrine Remains Dormant.”

Third-year University of Virginia law student Aaron Gober-Sims was surprised to read in a newspaper not long ago that police officers might have the authority to search the cell phone of anyone they arrest — without the need for a warrant or justification.

“I was like, ‘Wow, that doesn’t sound right,'” Gober-Sims said. “Cell phones often contain an infinite amount of personal information, and I imagine that most citizens would be surprised to learn that being arrested allows police officers to search through their cell phones without a warrant.”

Gober-Sims decided to take a closer look at the topic through an independent research project under the supervision of Professor Anne Coughlin, which will culminate in a paper, “From Cigarette Cartons to Cell Phones: Technology Continues to Advance, but the Search Incident to Arrest Doctrine Remains Dormant.”

In the paper, Gober-Sims examines whether the “search incident to arrest doctrine” — which allows police officers to perform a warrantless search of the arrestee, the area immediately around the arrestee, and any items found on the arrestee — should apply to an arrestee’s cell phone.

Gober-Sims’ effort is one of a number of independent research projects undertaken by UVA Law students each year, providing them with an opportunity to explore a cutting-edge legal topic with real-world implications, often resulting in a published article.

“Our independent study program allows students to work side by side with professors on a detailed topic of personal interest,” said UVA Law Vice Dean George Geis. “It is a wonderful way to customize your legal education while also building close professional relationships with the UVA faculty.”

Independent research projects at UVA Law involve a substantial amount of research under the supervision of faculty members and are available to second- and third-year law students. Students may earn one, two or three credits for their projects, depending on the length of the paper produced.

In the process of working on his paper, Gober-Sims found that the question over cell phone searches has split the circuit courts and two appeals are pending before the U.S. Supreme Court.

“State and federal courts dealing with this issue are applying different rationales and reaching different conclusions, which is at odds with the Supreme Court’s history of creating bright-line rules in the context of the Fourth Amendment,” Gober-Sims said.

Some courts, he said, have held that U.S. v. Robinson allows cell phones to be searched, without further justification, as long as the cell phone is taken from the arrestee’s person.

Other courts, even after considering Robinson, require police to show that the search was necessary to preserve evidence or protect officers because Robinson, which dealt with the searching of a crumpled-up cigarette carton found on the arrestee, cannot be applied to searching cell phones, he said.

Yet another court went further and held that cell phones can never be searched without a warrant under the search incident to arrest doctrine because it ruled that the government can never show an adequate justification for officer safety or evidence preservation.

In his paper, Gober-Sims concludes that police officers should have to justify warrantless cell phone searches under a theory of officer safety or evidence preservation, as the Supreme Court has recently reaffirmed the need for officers to meet one of these rationales. This justification might be hard to formulate, he said, which would protect the rights of people who are arrested.

“First, searching the data of a cell phone can never be justified under a theory of officer safety,” Gober-Sims said. “Second, when police officers search a cell phone after a lawful arrest, they are often searching for evidence, not preserving it.”