E.D.Va.: Def doesn’t lose REP in cell phone by loaning it out while he’s in jail

The government obtained defendant’s cell phone from somebody else using it while he was in jail, and they sought a search warrant which was denied. Later they searched the phone and claimed defendant had no standing. The court finds defendant did have standing; however, he loses because the possessor of the phone had complete access and the ability to consent, which she did. United States v. Perry, 2019 U.S. Dist. LEXIS 163218 (E.D. Va. Aug. 19, 2019), adopted, 2019 U.S. Dist. LEXIS 162516 (E.D. Va. Sept. 23, 2019). The Katz-Jones dichotomy is worth reading:

The government first contends that Defendant lacked a legitimate privacy interest in the HTC phone, thus removing this matter entirely from the ambit of the Fourth Amendment. See United States v. Davis, 690 F.3d 226, 241 (4th Cir. 2012) (“When there is no reasonable expectation of privacy, the Fourth Amendment is not implicated.”). Defendant asserts two theories to support his privacy interest. The first is based on the Katz “reasonable expectation of privacy” test as described above. He describes the other as based on “the common-law trespassory test,” as applied in Jones. Def.’s Second Mot. Suppress 5-6 (quoting United States v. Jones, 565 U.S. 400, 409 (2012)).

The Jones test is a poor fit here. In Jones, government agents attached a GPS tracking device to the underside of the petitioner’s vehicle while it was in a public parking lot and used it to monitor the vehicles movements for 28 days. 565 U.S. at 403. The Court held that such actions constituted a Fourth Amendment “search,” notwithstanding the petitioner’s lack of “reasonable expectation of privacy” in his publicly visible location. Id. at 404, 406. Jones thus reiterates the Fourth Amendment’s applicability when the government “physically occupie[s] private property for the purpose of obtaining information.” Id. at 404.

Courts have largely rejected efforts to expand the trespassory test applied in Jones, mostly because the Katz test covers a greater variety of contexts. Indeed, the Supreme Court devised the reasonable expectation of privacy test in Katz largely because the narrow trespassory test failed to encompass all those instances in which people expect to be free from government intrusion. See Katz, 389 U.S. at 351 (“[T]he Fourth Amendment protects people, not places.”); see also Jones, 565 U.S. at 404-09 (describing Katz as a deviation that added to, rather than supplanted, the historical “property-based approach” to the Fourth Amendment). The two tests are not necessarily mutually exclusive, but neither are they strict alternatives available in all cases. See Davis, 690 F.3d at 241 n.23 (limiting applicability of Jones to cases involving physical intrusion on private property).

Stretching Jones is ultimately unnecessary, as this Report concludes Defendant had a legitimate expectation of privacy under the Katz test. The Supreme Court has acknowledged the substantial privacy implications of ubiquitous cell phone usage today. …