CA4: Police could warrantlessly seize CSLI for cell phone abandoned in flight from the police

Defendant consciously was abandoning his property as he was trying to elude police who were chasing him on foot. He tossed everything, including his cell phone. Getting the CSLI for the abandoned phone without a warrant was reasonable, too. United States v. Small, 2019 U.S. App. LEXIS 36246 (4th Cir. Dec. 6, 2019):

Abandonment should not be casually inferred. People lose or misplace their cell phones all the time. But the simple loss of a cell phone does not entail the loss of a reasonable expectation of privacy. Thus, such ordinary mishaps do not constitute “abandonments.” Rather, as the district court noted, “[t]here has to be some voluntary aspect to the circumstances that lead to the phone being what could be called abandoned.” J.A. 41. Here there clearly was.

The evidence before the district court depicts a fleeing suspect tossing aside personal items while attempting to evade capture. Small fled on foot after crashing through the NSA gates, leaving his vehicle and its contents behind. Search personnel would continue to find Small’s personal items strewn about during the manhunt. At 1:45 am, officers located a bloody shirt and hat in the vicinity of the crashed car. The obvious conclusion is that these items—or, at the very least, the shirt—were purposefully removed and tossed aside. Several hours later, around 5:00 am, officers located a cell phone only fifty yards from the shirt and hat. The phone was found in a grassy area, not on a sidewalk or “a place where [someone] normally might be.” J.A. 43.

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