W.D.Va.: Leaving cell phone outside fed courthouse under ashtray, where CSOs commonly recommended hiding phones, was a waiver of REP in phone, albeit not abandonment

Defendant came to the federal courthouse because his mother was being arrested, and DHS officers invited him there. He did not know that he had an arrest warrant, too. When he got to the courthouse, he was told he couldn’t bring his cell phone in, and the CSO recommended taking it back to his car or hiding it under an ashtray outside, which was common for them to suggest. The court recognizes that defendant did not abandon the phone, but he left it in such a way to completely undermine his reasonable expectation of privacy in it. United States v. McTague, 2017 U.S. Dist. LEXIS 2588 (W.D. Va. Jan. 9, 2017):

It bears mentioning that Felix Chujoy and Gladys Chujoy left their phones under an ashtray, in public, outside the front door of the Harrisonburg federal courthouse. Unlike in most cases that find abandonment absent an explicit disavowal of ownership, Felix Chujoy does not appear to have left his phone in order to shield it from discovery; rather, he left it for convenience, to allow him to enter the courthouse. Further complicating the analysis is that Felix Chujoy apparently left his cell phone outside the courthouse at the suggestion of the CSO who later retrieved it for Agent Ketcham. Nonetheless, the fact remains that the phone was left, unguarded, in public. This is strong evidence of abandonment. E.g., United States v. McFillin, 713 F.2d 57, 58 (4th Cir. 1981); Clemons, 1995 U.S. App. LEXIS 34732, 1995 WL 729479, at 3.

Moreover, Felix Chujoy left his phone where anyone could see, touch, or even remove it without him knowing. “[His] ability to recover the [phone] depended entirely upon fate and the absence of inquisitive (and acquisitive) passers-by.” United States v. Davis, No. 4:12-CR-00267-RBH, 2012 U.S. Dist. LEXIS 162396, 2012 WL 5511783, at *3 (D.S.C. Nov. 14, 2012) (unpublished) (finding abandonment where a defendant left a bag on the side of the road hoping to recover it later). Strangers’ ability to access property also suggests abandonment. E.g., California v. Greenwood, 486 U.S. 35, 40, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988); Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960); United States v. Jackson, 728 F.3d 367, 375 (4th Cir. 2013). No party presented testimony from the CSO, and there is no indication that the CSO provided any assurance to Felix Chujoy that he would monitor the ashtray. Rather, the fact that the CSO suggested so slapdash a receptacle suggests that he was advising Felix Chujoy of a common practice among visitors, rather than supplying him with a secure place to stash his phone.

The complicating factor in this case is the role of the CSO, both in suggesting the ashtray as a place where courthouse visitors could stash their phones, and in retrieving Felix Chujoy’s cell phone for Agent Ketcham. While the court does not believe that CSOs should be engaged in either of these activities, the involvement of the CSO does not change the result in this case. Regardless of the suggestion of the CSO, Felix Chujoy made the decision to put his cell phone under an ashtray on the front steps of the federal courthouse rather than secure it elsewhere, such as in a car. Having done so, it was fair game for anyone who happened along. Placing one’s cell phone under an ashtray in so open a place as the steps of a federal courthouse and leaving it there is not consistent with an objectively reasonable expectation of privacy. Under these circumstances, Felix Chujoy has not met his burden of establishing that he retained an objectively reasonable expectation of privacy when he left his cell phone under an ashtray on the courthouse steps and walked away, entering the building.

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