In United States v. Johnson, the U.S. Court of Appeals for the Eleventh Circuit held that the defendants’ lost cell phone was abandoned, for Fourth Amendment purposes, despite evidence that the phone’s owners made repeated attempts to retrieve it.
The defendants inadvertently left their smartphone in a Florida Walmart where it was discovered by an employee. Having made contact with the employee, they arranged to meet the employee in order to retrieve the phone. However, between finding the phone and the scheduled meet-up time, the Walmart employee discovered what she believed to be images and videos containing child pornography.
The employee’s husband took the phone to police who viewed multiple images already seen by the employee’s husband as well as a video which the husband had not viewed. The police turned the phone off and placed it into evidence, awaiting a search warrant which was obtained more than 20 days later. During this time, the defendants continued to call and text the phone in attempts to recover it from the Walmart employee.
At pre-trial hearings, the defendants filed motions to suppress the evidence obtained from the phone on the grounds that the warrantless viewing of the images by the police constituted an illegal search. They also contended that the 23-day delay between seizing the phone and obtaining a search warrant was unreasonable since it interfered with their possessory interest in the phone.
The Court of Appeals looked first at law enforcement’s initial, warrantless search of the cell phone. The defendants specifically contended that the police exceeded the scope of the Walmart employee’s private search when they watched a video not previously viewed by the employee and her husband. Because information about this video was used in obtaining a search warrant, the defendants argued that this invalidated the warrant.
While the Court of Appeals agreed that law enforcement exceeded the scope of a private search when they watched the video, it did not agree that the warrant was invalid. Instead, the Court reasoned that the offending video had no effect on the Magistrate’s determination of probable cause.
Regarding the 23-day delay in obtaining the search warrant, the Court of Appeals did not decide whether the delay was unreasonable but rather held that the defendants had abandoned their phone and had no standing to challenge the search of it.
The Court conceded that the defendants had initially just lost their phone, which would not normally be grounds for a finding of abandonment. However, the Court noted that after three days of attempting to retrieve the phone, the defendants gave up and that this amounted to a relinquishment of their possessory interest in the phone.
Of particular importance to finding abandonment was what occurred after the Walmart employee failed to show up when scheduled to hand over the phone. The Court explained that the defendants knew where the employee worked and could have, with minimal effort, attempted to call someone at the store or even go there to look for the employee. The defendants also failed to file a complaint with the store or make a report with the police concerning the phone.
Additionally, the Court of Appeals thought it was especially telling that there was no evidence of further texts or calls from the defendants to the phone after it was turned off by the police, and that both defendants had obtained new phones within a few days.
Although these circumstances were persuasive to the majority, Judge Beverly Martin argued in her dissent that modern phones are no longer just modes of communication. Instead they contain “vast troves” of unique and personal information which cannot simply be replaced. Replacing the lost phone with another communication device does not evidence an intent to relinquish possession of the unique information contained inside the lost phone.
Attorneys for the defendants are preparing an application for certiorari to the U.S. Supreme Court on both the search and abandonment issues. We will continue to follow this case and hope that the high court will agree to hear this important issue regarding the expectation of privacy in our cell phones.
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