TX1: Def lost REP in his mislaid phone that somebody found and opened to try and discern the owner to return it

Defendant mislaid his cell phone, and he didn’t abandon it. Nevertheless, it was available for anyone to pick up and turn in to somebody to help find him. Moreover, it wasn’t passcode protected, and it was reasonable for someone to attempt to find the owner by opening the phone. Oseguera-Viera v. State, 2019 Tex. App. LEXIS 10671 (Tex. App. – Houston (1st Dist.) Dec. 10, 2019):

Reviewing the factors in this case while giving appropriate deference to the trial court’s factual determinations as we must, we hold that the trial court did not abuse its discretion in finding that Oseguera-Viera’s subjective privacy interest was objectively unreasonable. The first factor supports Oseguera-Viera’s position. He had a possessory interest in the cell phone. At the time of the search, he had mislaid it, but he had not abandoned it. But the other relevant factors weigh against a finding of objective reasonableness. When he left the phone in the entrance to the store, Oseguera-Viera no longer exercised dominion or control over it. It became available for a customer to pick up and take to the officer. The record also supports a finding that he did not take normal precautions to maintain his expectation of privacy. The phone was unlocked and did not have a passcode. He did not mark the phone with his name or information such that access would be unnecessary nor did he secure it locked on his person so that another person could not pick it up. Oseguera-Viera left the phone where any member of the public might pick it up, and he did not password protect it to limit another person’s ability to search through it to ascertain ownership. See Lown v. State, 172 S.W.3d 753, 761 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (concluding that appellant failed to show that his expectation of privacy was objectively reasonable because, among other reasons, “there is no evidence demonstrating that appellant took any precautions (such as encryption) to protect his privacy in the information contained on the computer system”). Whatever subjective expectation of privacy Oseguera-Viera may have had in the cell phone, his objective expectation of privacy was limited by the officer’s ability to access it for the purposes of determining ownership. See, e.g., Brackens v. State, 312 S.W.3d 831, 837 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (observing that “an individual’s conduct or activity or the circumstances of the situation” may “significantly lessen the defendant’s reasonable expectation of privacy by creating a reasonable foreseeable risk of intrusion by private parties”).

Under these particular circumstances, the trial court could have reasonably inferred that in order to return the phone to Oseguera-Viera, others must have taken temporary possession of it and could access it briefly to ascertain its owner. See Miller v. State, 335 S.W.3d 847, 856 (Tex. App.—Austin 2011, no pet.) (stating trial court could reasonably infer that to return a flash drive left in computer room accessible to many, others must take temporary possession and possibly access it to determine the owner); Kane v. State, 458 S.W.3d 180, 185, (Tex. App.—San Antonio 2015, pet. ref’d) (stating court could infer individuals with access to university classroom would access unlocked flash drive in order to ascertain ownership).