In July, the Virginia Court of Appeals gutted the privacy rights Virginians have in their cell phones. The decision is misguided as a constitutional matter — and concerning as a practical matter.
In Futrell v. Commonwealth, the court held that police do not need a warrant to search the digital contents of an “abandoned” cell phone. Police found a phone at a restaurant while investigating a shooting. Instead of getting a warrant to search it, police turned it on, went to its settings and looked for information. They used what they found to locate and arrest the phone’s owner.
Although Futrell recognized that warrantless searches are presumptively unconstitutional, the court allowed the search because the cell phone was supposedly “abandoned” — i.e., intentionally left at the restaurant. As a result, the phone’s owner lost “any privacy interest he may have had in it or in its contents.”
In short, according to Futrell, Virginians who “abandon” a cell phone have no privacy interest in its digital contents. No warrant is required to search the phone. Nothing is off limits. Emails, photos, apps and texts are all open to the government’s prying eyes.
That is troubling. According to Lookout Mobile Security, people lose an average of one smartphone a year. There is a thin line between “losing” and “abandoning” a phone. Courts struggle with that distinction. But under Futrell, so long as police reasonably believe a phone is abandoned, neither it nor its digital contents receive Fourth Amendment protection.
The same applies to phones thrown away or traded in. These phones are almost certainly “abandoned.” So, under Futrell, police can collect the phones and search their digital contents without a warrant.
Futrell erred in treating cell phones like other physical objects. It mechanically applied the “abandonment doctrine,” a principle of constitutional law the U.S. Supreme Court first articulated in 1924. In Hester v. United States, 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 and drug paraphernalia left in the trash.
Cell phones are different. They have massive storage capabilities. A search of a cell phone involves a much deeper invasion of privacy. The depth and breadth of personal and private information they contain was unimaginable in 1924.
We use cell phones as cameras, personal assistants, navigation devices, web browsers, and everything in between. And with advances in cloud computing, cell phones can access years — if not decades — of bank records, medical records, emails, location data, and other sensitive information. Can anyone really “abandon” this information, even if they discard a cell phone?
Futrell said “yes” without considering the unique aspects of cell phones. Its constitutional analysis was superficial. It treated cell phones like other physical objects, ignoring that we have a much stronger expectation of privacy in our cell phones than people did of moonshine bottles in 1924.
In 2001, the U.S. Supreme Court in Kyllo v. United States warned against this type of “foolish” mechanical extension of Fourth Amendment doctrines to modern day technologies. Similarly, in 2014, the Court in 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.” And 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.”
Futrell did not heed these warnings.
The Virginia Supreme Court soon will have an opportunity to review the Futrell decision. Anyone concerned with potential governmental overreach into their digital lives should hope the court intervenes — and recognizes that cell phones are not moonshine bottles.
Brandon L. Boxler is an attorney in Richmond who specializes in appellate litigation and constitutional law.
