NC: If def was an innocent owner of a stolen cell phone, he’d have standing; remanded because no findings on that

Defendant had a cell phone removed from him in a search incident that was searched without a warrant. It was determined that the phone was stolen. Defendant asserted an innocent owner defense that the trial court did not resolve, and, if he was an innocent owner, he’d have standing in the cell phone. State’s consent argument waived. State v. Clyburn, 2015 N.C. App. LEXIS 269 (April 7, 2015):

The State appeals from an order granting in part defendant Kenneth E. Clyburn’s motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on defendant’s person which, as a result of the search, was determined to have been stolen. On appeal, the State argues that the trial court erred in granting the motion because defendant did not have a reasonable expectation of privacy in the GPS and, therefore, cannot show that his Fourth Amendment rights were violated. Alternatively, the State argues that even assuming that the defendant did have a privacy interest in the GPS, the search was valid because (1) defendant consented to the search and (2) the search was justified as a search incident to arrest.

Because the State did not raise the consent argument below, we decline to address it. We hold that the United States Supreme Court’s recent decision in Riley v. California, ___ U.S. ___, 189 L. Ed. 2d 430, 134 S. Ct. 2473 (2014), applies to the search of the digital data stored on a GPS device, and affirm the trial court’s conclusion that the search incident to arrest exception does not apply in this case. With respect to defendant’s privacy interest in the stolen GPS, we hold that a defendant may have a legitimate expectation of privacy in a stolen item if he acquired it innocently and does not know that the item was stolen. At the suppression hearing, defendant presented evidence that, if believed, would allow the trial court to conclude that defendant had a legitimate possessory interest in the GPS. Because the trial court failed to make a factual determination regarding whether defendant innocently purchased the GPS, we reverse and remand for further findings of fact.