Warrantless Searches of Mobile Phones Incident to Arrest

It has long been established that police may conduct warrantless searches of people lawfully arrested, as well as the personal effects on or about their persons.  The underlying rationale behind this policy is to ensure that the person being arrested does not possess weapons, and to prevent the destruction of evidence.  However, with the ever-increasing prevalence of mobile phones and “smart devices” amongst the populous, warrantless searches of these devices incident to arrest has generated a great deal of controversy.  Importantly, police can now ascertain not only the owner’s call log, but also photographs and videos, text and social networking messages, email, and even a history of the phone’s previous locations.   While such information is obviously of great value to investigators, it implicates serious concerns about both the phone owner’s right to privacy, as well as that of anyone who may have communicated with that person via any number of formats.

Nationally, courts are divided as to whether warrantless searches of mobile phones and smart devices should be construed differently than that of any other personal effect an arrestee may possess.  Considering these devices cannot be employed as a weapon, and that the police may obtain a search warrant for any device which they have reason to believe contains incriminating evidence, they should not be subject to the same treatment as other personal effects under Fourth Amendment of the Constitution.  House Bill 1897, which goes before the Virginia General Assembly this session, seeks to proscribe warrantless searches of devices which transmit electronic data.  Such legislation is crucial in protecting citizens from these sorts of searches until the appellate courts reach a consensus on this issue.