M.D.Pa.: Giving cell phone to another for use in drug deals is waiver of reasonable expectation of privacy

Giving one’s cell phone over to another to use for drug dealing was a loss of any reasonable expectation of privacy in it. United States v. Brewer, 2015 U.S. Dist. LEXIS 62260 (M.D.Pa. May 12, 2015):

Here, as the phone’s subscriber, Brewer may have had some unknown property interest in the phone. But, considering the other relevant factors, it is clear to us that Brewer has failed to satisfy his burden of demonstrating that he manifested a subjective expectation of privacy in the phone. First, at the time the phone was seized, it was in the possession of Jamell Smallwood. Second, Brewer produced no evidence to demonstrate that, despite Smallwood’s possession, he maintained the ability to exclude others from the phone or took precautions to maintain his privacy in the phone. To the contrary, the evidence shows that Brewer voluntarily turned the phone over to Smallwood, who subsequently claimed complete ownership and control. See Coates, 462 F. App’x at 203. Therefore, by his conduct, Brewer did not exhibit an actual expectation of privacy in the phone. Accordingly, we find that Brewer had no legitimate expectation of privacy and thus lacks the capacity to challenge the search of Smallwood’s phone.