TX: Is abandonment of a car also abandonment of the information in a cell phone left in it?

Dissent on denial of a petition for discretionary review: The court should decide whether fleeing a car and leaving one’s cell phone behind is abandonment. The court of appeals below held it was. Wiltz v. State, 595 S.W.3d 930, 936 (Tex. App.—Houston (14th Dist.) 2020), PDR denied, Wiltz v. State, 2020 Tex. Crim. App. LEXIS 812 (Oct. 22, 2020),* dissent:

In concluding that Appellant intentionally abandoned his vehicle and cell phone, the court of appeals noted that “[t]he video shows appellant fleeing from the vehicle on foot after having been handcuffed, passing by the wide-open door, leaving behind his vehicle and everything in it, including the cell phone.” Wiltz, 595 S.W.3d at 935. While I agree that Appellant abandoned his vehicle when he fled, the same evidence, without more, does not demonstrate that Appellant intended to abandon his cell phone and the information within it.

It is apparent that when Appellant fled, he knew his vehicle would be left behind and chose to run anyway. Appellant did not return to his vehicle. By intentionally leaving his unparked vehicle in a public parking lot, Appellant abandoned the vehicle “in such a way ‘that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'” Matthews, 431 S.W.3d at 609 (quoting McDuff, 939 S.W.2d at 616). If the question was whether Appellant had standing to challenge the search of his vehicle, I would hold that he did not.

But what is not apparent from the record is whether Appellant knew the cell phone was in his vehicle when he ran or whether he made a conscious decision to leave it behind. Based on the facts before us, it would be speculative to conclude that Appellant knew his phone was in his vehicle and intentionally left it behind when he fled just as it would be speculative to conclude that he believed it was in his pocket when he ran. The record also is silent as to whether Appellant was in possession or control of his cell phone at the time of the stop. As the Appellant suggested to the trial court, it is possible that the passenger was using the phone and had control over it when the traffic stop occurred. Again, reaching that conclusion would be speculative just as concluding that Appellant was in control of his phone at the time of the stop would be speculative. There is no evidence that would lead to an inference that Appellant intentionally abandoned the phone.

I don’t think this dissent is ever going to turn into a majority opinion. If leaving the car is abandonment of the contents, does the special status of a phone require a different result when it is left in the car? Not likely. Cell phones are abandoned all the time.