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Posted Dec. 2, 2013

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

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Aaron 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.

Contact: Brian McNeill

"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. (More)

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."

Government Seizure of Assets

Second-year law student Sean Welsh's independent research project explores how courts have approached the forfeiture of assets, such as money, cars or property, in cases involving illegal activity.

Welsh's project, which is being supervised by Professor Brandon Garrett, focuses on the "tracing requirement" in asset forfeiture cases brought by the United States. Under the tracing requirement, the government must show that an asset is traceable to the alleged illegal activity in order for it to be seized.

"There are relatively easy cases that can be directly traced and present no issue," Welsh said. "For instance, if a known drug dealer deposits $50,000 in cash from drug sales into a bank account, and then uses that bank account to purchase a vehicle for $40,000, both the $10,000 left in the bank account and the vehicle represent proceeds of the drug activity."

Yet the courts have disagreed on how to deal with the tracing requirement when assets become commingled, he said.

"If the drug dealer deposits $50,000 into an account that contained $50,000 worth of clean money and then purchased a vehicle for $40,000, does the vehicle represent the proceeds of the drug trafficking?" he said. "Was the vehicle paid for with clean money or dirty money, and how can you trace once commingling has occurred?"

In interpreting the tracing requirement, some courts, notably the 2nd U.S. Circuit Court of Appeals, have adopted the "lowest intermediate balance rule" (LIBR) from trust law and what has been renamed the "drugs-in, last out rule" in the forfeiture context, Welsh found.

"Essentially, in [an] account with commingled funds, as long as the balance does not go below the amount of the tainted funds that were deposited, the court assumes the tainted funds remain in the account," he said.

Even though some courts have rejected the use of LIBR in forfeiture proceedings, Welsh agreed with the 2nd Circuit's interpretation that courts should adopt LIBR as the accepted method for tracing assets to illegal activity, finding support in comparisons to tracing in other contexts, such as money laundering cases.

As he has researched forfeiture, Welsh said he has found it to be a "fascinating and complex area of the law" and a powerful tool of law enforcement to stop criminals and criminal organizations.

"Criminals can go to jail for a number of years, but the real punishment is when the fruits of their criminal activities are taken away," he said. "I’ve heard stories of criminals willing to take 10 years in jail but pleading with prosecutors to not take away their Lamborghini and multimillion-dollar home."

Welsh said he hopes his research paper will add to the conversation and clarify a point of law in asset forfeiture, which he hopes to practice as a prosecutor in the future.

Can You 'Impoverish Yourself' to Qualify for Medicaid?

Third-year law student Abigail Freidman is working on an independent research project under Professor Alex Johnson, in which she is investigating the use of asset protection trusts that can be used to manipulate a person's wealth in order to qualify for Medicaid.

"In order to qualify for Medicaid, a program that has the purpose of providing medical care to the poor, one cannot have more than a specified level of assets," Friedman said. "This is where asset protection trusts come in. In order to qualify for Medicaid, one can potentially transfer all of his or her assets into an asset protection trust, if a court deems the trusts valid and enforceable."

By moving assets into the trust, she said, a person who would not otherwise be eligible for Medicaid could obtain free medical and long-term care and would not have to reimburse the Medicaid program for any of the care received.

As part of her paper, Friedman considers not only the viability and effectiveness of using asset protection trusts to qualify for Medicaid, but she also weighs the ethical and moral implications of the strategy.

"The use of asset protection trusts to 'impoverish' oneself to qualify for Medicaid encourages dishonest and deceitful behavior through legalized fraud," she said. The practice represents "poor public policy and should not be enforced."

Asset protection trusts are available in only 15 states, and Virginia only began allowing them in 2012, Friedman found.

Friedman said she became interested in the topic while taking Trusts and Estates, in which Johnson discussed the potential use of asset protection trusts to qualify for Medicaid and sparked a classroom debate about the ethics of the idea.

She wanted to follow up that classroom debate with an independent research project, she said, because it is an emerging topic with implications for the future of the Medicaid system.

"I also wanted to investigate this topic because I had seen elderly relatives struggling to afford long-term care," she said. "I wanted to find out if there were any legal means for them and others in their situation to be able to qualify for the benefits of Medicaid."