D.S.D.: No reasonable expectation of privacy in the cell phone of another in the defendant’s possession

There is no reasonable expectation of privacy in the cell phone of another in the defendant’s possession. United States v. Clinton, 2012 U.S. Dist. LEXIS 150171 (D. S.D. October 4, 2012):

Clinton’s mere possession of the cell phone, without more, is insufficient to establish a Fourth Amendment right to privacy in its contents. Salvucci, id., 448 U.S. at 91-92. In United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) the Fifth Circuit held that the defendant had a privacy interest in a cell phone which was subscribed to his employer but which was issued to him and which his employer allowed him to use. The Court reasoned that “although [the defendant’s] employer issued the phone, [the defendant] maintained a property interest in the phone, had a right to exclude others from using the phone, exhibited a subjective expectation of privacy in the phone, and took normal precautions to maintain his privacy in the phone.” Id.

The Courts hold that persons who merely possess a cell phone subscribed to a third person, however, do not have a Fourth Amendment privacy interest sufficient to challenge a warrantless search. See United States v. Skinner, 2007 WL 1556596 (E.D. Tenn.) [*9] (Defendant lacked standing to challenge use of cell phone information because the cell phone in question was subscribed to a third person); United States v. Davis, 2011 WL 2036463 (D. Or.) (sex trafficking case; “defendant’s mere use of the telephone number is insufficient to create a legitimate privacy interest in the cell phone records. Defendant was not the registered owner or subscriber of the phone, and he was not registered as a permissible user. Defendant has presented no evidence that he had the permission of the subscriber …”); United States v. Suarez-Blanca, 2008 WL 4200156 at * 7 (N.D. Ga.) (Defendant failed to demonstrate an expectation of privacy in cell phone found on his person, but to which he was not the subscriber “society is not prepared to recognize a privacy interest for individuals who hold cell phones that are not linked to the subscribers of those cell phones.”). See also, Christensen v. County of Boone, Illinois, 483 F.3d 454, 461 (7th Cir. 2007) (“[Defendant] had no legitimate expectation of privacy in a cell phone belonging to someone else.”). The only record evidence indicates the cell phone seized from Clinton upon his arrest belonged to a third party. Clinton presented no evidence that he possessed or used the cell phone with permission of the third party. Because Fourth Amendment rights are personal and cannot be asserted vicariously, therefore, Clinton failed to carry his burden “of proving he had a legitimate expectation of privacy that was violated by the challenged search.” United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995).