Defendants lost their cell phone in a Wal-Mart. The person finding the phone looked in it to see if there was identifying information, but there wasn’t. The phone wasn’t password protected. The person handling it found what appeared to be child pornography on the phone, and she shared it with her fiance-coworker. They called the police who acquired the phone, and it took a while to get the phone to the right agency. The officer assigned the case was called as she boarded a flight to training. Over the next three weeks, she was in the office maybe one day and was in different training sessions every week. Finally she sought a search warrant, but she never looked beyond what the private search revealed. The three week delay was potentially too long, but the court doesn’t find it unreasonable on these facts. Essentially, defendants lost their reasonable expectation of privacy in the phone by not more aggressively seeking to reacquire it after being so careless to lose it. Alternatively, defendants abandoned the phone within three days. United States v. Johnson, 2015 U.S. App. LEXIS 20809 (11th Cir. Dec. 2, 2015) (2-1). See also WaPo: Orin Kerr, 11th Circuit deepens the circuit split on applying the private search doctrine to computers.
From the opinion:
Defendant-Appellants Alan Robert Johnson and Jennifer A. Sparks’s day did not start well for them. They left their cell phone at a Walmart store. But this wasn’t just any cell phone; Johnson and Sparks’s phone stored hundreds of images and videos of child pornography that they had made using Sparks’s friend’s four-year-old child-and Johnson was already a registered sex offender. So Defendants must have felt pretty relieved when they learned that Linda Vo, an employee of the Walmart where Defendants left their phone, had found it and that she agreed to return it.
But Vo decided to look at the contents of the phone, which were not password-protected, after speaking with Sparks and before actually meeting her. Upon discovering the images of child pornography, Vo resolved not to return the phone. Instead, unbeknownst to Defendants, she arranged for it to be turned in to law enforcement.
When Vo failed to meet Sparks with the phone as the two had previously agreed, Defendants knew how to find Vo to get their phone back. But Defendants did not return to their Walmart store and look for Vo. Nor did they ask for Walmart’s assistance in obtaining their phone, found in its store, by its employee. They also did not file a report with Walmart or the police complaining that Vo would not return their phone, despite their requests. Instead, they made a conscious decision to stop pursuing the phone, even though they knew how to get it back with reasonable effort.
That decision-whether because Defendants hoped that Vo would not report them if they did not continue to seek the phone or because Defendants simply thought recovery of the phone was not worth their reasonable effort-can be viewed only as a deliberate decision to abandon the phone. Because Defendants abandoned their phone within three days of having lost it, they lack standing to challenge law enforcement’s 23-day delay between recovering the phone and obtaining a search warrant to search it.
As for searches conducted within the three-day period before Defendants abandoned their interest in the phone, we find no reversible error in the district court’s denials of Defendants’ suppression motions.
. . .
C. The Effect of a Delay in Obtaining a Search Warrant on a Possessory Interest
Johnson and Sparks also challenge the district court’s conclusion that Enterline’s delay in obtaining the initial search warrant for the cell phone did not unreasonably interfere with Johnson’s and Sparks’s possessory interests in the phone.
Johnson and Sparks concede the legality of the initial seizure of the cell phone by the FMPD after it had viewed images on the phone, even though the phone was seized without a warrant. As we have discussed, the phone carried images of child pornography, which constituted contraband. “[I]t is constitutionally reasonable for law enforcement officials to seize ‘effects’ … without a warrant [when] probable cause [exists] to believe they contain contraband.” Jacobsen, 466 U.S. at 121-22, 104 S. Ct. at 1660.
But “a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment’s prohibition on ‘unreasonable searches.'” Id. at 124, 104 S. Ct. at 1662. So if, after seizing an item, law enforcement unreasonably delays obtaining a warrant to search the item, a reasonable seizure can become unreasonable. United States v. Mitchell, 565 F.3d 1347, 1350 (11th Cir. 2009). Usually, “the reasonableness determination will reflect a careful balancing of governmental and private interests.” Soldal v. Cook Cty., 506 U.S. 56, 71, 113 S. Ct. 538, 549 (1992) (quotation marks and citation omitted); see Illinois v. McArthur, 531 U.S. 326, 331, 121 S. Ct. 946, 950 (2001)
Here, the district court employed this balancing approach and concluded that the delay in obtaining the search warrant for the cell phone was reasonable. First, the district court opined that “[l]aw enforcement was not particularly diligent in pursuing its investigation of the images on the cell phone” because attending training is not typically a sufficient justification for a three-week delay in obtaining a warrant and because the “search warrant application was not complex or time-consuming.”
But it weighed these determinations against its finding that Johnson’s and Sparks’s possessory interests in the phone were “greatly diminished” for a number of reasons: (1) the phone had been lost and retrieved by a private person; (2) the phone was not password protected; (3) two private citizens and several law-enforcement officials had already viewed images contained on the phone; (4) from that point forward, neither defendant would have been able to retrieve the phone because it contained contraband and was itself derivative contraband; and (5) the defendants replaced the cell phone within a couple of days. Based on the weighing of these factors, the court concluded that the government’s legitimate interest in holding the cell phone that it had already determined contained contraband outweighed Johnson’s and Sparks’s interests in the phone.
Johnson and Sparks contend that the district court erred in finding that the 23-day delay between law enforcement’s seizure of the phone and its obtaining of a search warrant was not unreasonable. In support, they rely on United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009)-where we held that a 21-day delay was unreasonable-and attempt to distinguish United States v. Laist, 702 F.3d 608 (11th Cir. 2012)-where we held that a 25-day delay11 was reasonable.
We do not reach the issue of whether the 23-day period between the seizure of the phone on June 4 and the obtaining of a search warrant for it on June 27 was unreasonable. Johnson and Sparks lost standing to contest the length of the 23-day delay because they abandoned their possessory interests in the phone by, at the latest, June 7, 2012.12 And the, at most, three-day period during which they had standing to contest the length of the delay was not unreasonable under the circumstances of this case.
. . .
[Abandonment]
Besides Johnson’s and Sparks’s complete abandonment of their efforts to obtain the phone after Vo did not appear at the designated time and place, Johnson and Sparks engaged in affirmative acts further demonstrating their intent to abandon the phone. Within a few days of losing the phone in question, Johnson purchased an upgraded phone for himself, filed an insurance claim for the lost phone, and obtained and provided a replacement phone to Sparks. The replacement phone that Johnson gave Sparks was the same model as the seized phone.
Under the facts in this case, Johnson’s and Sparks’s replacement of the phone further signified the finality of their earlier calculated decision to abandon the seized phone and cease seeking its return from the known finder. Indeed, even had Vo decided to keep the phone for herself, the only reasonable conclusion from this record is that Johnson and Sparks had no intention to do anything further to recover it. And if a person’s decision to leave a sinking ship to save his own life can be viewed as abandonment, see Edwards, 644 F.2d 1, we cannot see how a considered and voluntary choice over a three-day period to allow a total stranger to keep a phone containing personal information does not constitute abandonment, when Johnson and Sparks easily could have instead chosen to retrieve the phone with minimal, or at most, reasonable effort.
To be clear, we do not suggest a Fourth Amendment jurisprudence of “finders keepers; losers weepers.” Loss is not the same thing as abandonment. And loss alone cannot support a finding of abandonment. Nor does the filing of a claim for a lost item and the replacement of that item with the resulting insurance money, in and of itself, demonstrate an intent to abandon. Instead, we must view all of the facts and consider the totality of the circumstances to determine whether an intent to abandon may objectively be discerned.
Where, as here, the purchase of a replacement phone follows the ceasing of efforts to recover the original phone despite knowledge of how to obtain the return of the original phone through reasonable efforts, those actions provide further confirmation of a deliberate decision to abandon the original phone. Nor, under these circumstances, can Johnson and Sparks’s initial efforts at recovering the phone insulate them forever from a finding of abandonment when their later actions leave no other reasonable conclusion to be drawn.
