SC: Of course def didn’t intend to leave his cell phone at the scene of a burglary, but he did, and that’s still abandonment

Defendant lost his cell phone at the scene of a burglary. The court grants the fundamental premise that a cell phone has the “privacies of life,” but his unintentional abandonment of the phone doesn’t preclude the government from searching it without a search warrant. The officers guess his password: 1-2-3-4. Brown v. State, 2018 S.C. LEXIS 75 (June 13, 2018):

We begin our review of the trial court’s finding that Brown abandoned his phone with the factual premise of Riley, that cell phones hold “the privacies of life.” 573 U.S. at ___, 134 S. Ct. at 2494-95, 189 L. Ed. 2d at 452. Brown’s expectation that this privacy would be honored—at least initially—is supported by the fact he put a lock on the screen of the phone. As the court of appeals in this case stated, “the act of locking the container … demonstrates to a law enforcement officer that the owner of the container started out with an expectation of privacy in the container’s contents.” 414 S.C. at 27, 776 S.E.2d at 924. At least until the time of the burglary, therefore, Brown enjoyed Fourth Amendment protection for the digital information stored on his phone.

Additionally, we can presume Brown did not intentionally leave his cell phone at the scene of the crime, for he must have known that doing so would lead to the discovery that he was the burglar. Thus, it is unlikely a police officer would believe the mere act of leaving the phone at the scene of the crime was an intentional relinquishment of his privacy. For at least a short period of time after the crime, therefore, the phone might not yet have been abandoned. However, when a person loses something of value—whether valuable because it is worth money or because it holds privacies— the person who lost it will normally begin to look for the item. In this case, the phone sat in the evidence locker at the police station for six days. The record contains no evidence Brown did anything during this time to try to recover his phone. While Brown might have taken action to protect his privacy before he left it at the victim’s condominium, there is no evidence he did anything after that to retain the privacy he previously had in the phone’s digital contents. There is no evidence he tried to call the phone to see if someone would answer. There is no evidence he attempted to text the phone in hopes the text would show on the screen, perhaps with an alternate number where Brown could be reached, or perhaps even with a message that he did not relinquish his privacy in the contents of the phone.2 There is no evidence he attempted to contact the service provider for information on the whereabouts of the phone. Instead, he contacted the service provider and canceled his cellular service to the phone. And there is certainly no evidence he went back to the scene of the crime to look for it, or that he attempted to call the police to see if they had it.

We would expect that a person who lost a cell phone that has value because of the privacies it holds would look for the phone in one or more of the ways described above. On the other hand, the reason a burglar would not look too hard to find a phone he lost during a burglary is obvious. Brown put himself in the difficult position of having to balance the risk that finding the phone would incriminate him against the benefit of retrieving the private digital information stored in it. Looking at these facts objectively, any police officer would assume after six days of no efforts by the owner to recover this phone—especially under the circumstance that the owner left the phone at the scene of a burglary—that the owner had decided it was too risky to try to recover it. Brown’s decision not to attempt to recover the phone equates to the abandonment of the phone.

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