{"id":23144,"date":"2016-07-31T00:07:25","date_gmt":"2016-07-31T05:07:25","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=23144"},"modified":"2016-07-31T07:00:00","modified_gmt":"2016-07-31T12:00:00","slug":"wa-while-cell-phones-are-certainly-private-affairs-theres-no-special-abandonment-rule-for-cell-phones","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=23144","title":{"rendered":"WA: While cell phones are certainly “private affairs,” there’s no special abandonment rule for cell phones"},"content":{"rendered":"

Cell phones are the \u201cprivate affairs\u201d of Washingtonians under their state constitution, merely stating the obvious, but they can be abandoned like anything else, and the court declines to adopt a cell phone exception to abandonment. State v. Samalia<\/a>, 2016 Wash. LEXIS 837 (July 28, 2016):
\n<\/p>\n

II. Cell phones and the information they contain are \u201cprivate affairs\u201d under article I, section 7 of the Washington Constitution<\/strong><\/p>\n

\u00b612 We hold that cell phones and the information contained therein are private affairs because they may contain intimate details about individuals’ lives, which we have previously held are protected under article I, section 7. In determining whether something is a private affair (meaning \u201cthose privacy interests which citizens of this state have held, and should be entitled to hold, safe from government trespass absent a warrant,\u201d see Myrick, 102 Wn.2d at 511), we consider both \u201cthe nature and extent of the information which may be obtained as a result of the governmental conduct\u201d and the historical protection afforded to the interest asserted. State v. Miles, 160 Wn.2d 236, 244, 156 P.3d 864 (2007); see also Hinton, 179 Wn.2d at 868-69; State v. Jorden, 160 Wn.2d 121, 126, 156 P.3d 893 (2007).<\/p>\n

A. Cell phones may contain vast amounts of intimate, personal information<\/strong><\/p>\n

\u00b613 For the private affairs analysis under article I, section 7, we first \u201clook at the \u2018nature and extent of the information which may be obtained as a result of the government conduct.\u2019\u201d Hinton, 179 Wn.2d at 869 (quoting Miles, 160 Wn.2d at 244). A government search of a cell phone has the potential to reveal a vast amount of personal information. The United States Supreme Court recently described the intimate and personal details that cell phones may contain in Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). The Riley Court’s detailed analysis on the nature and extent of private information that cell phones may contain is persuasive for our private affairs analysis.<\/p>\n

\u00b614 The Riley Court observed that \u201cmany [cell phones] are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.\u201d Id. at 2489. The Court then continued on the ramifications of the large data storage capacities of cell phones: a cell phone typically contains far more personal information than a person would normally carry in written form; searching a cell phone discloses prior searches for information by the cell phone owner, suggesting private facts about the owner; and cell phone applications, or apps, collect information on specific subjects. Id. at 2489-90.<\/p>\n

\u00b615 As described in Riley, cell phones may contain many intimate details of a person’s life. This is certainly sufficient to satisfy the first step of the private affairs inquiry\u2014that the search may reveal intimate or discrete details of a person’s life. We turn then to the second step of the inquiry\u2014whether we have historically protected this information under article I, section 7.
\nUnited States v. Lustig, 2016 U.S. App. LEXIS 13807 (9th Cir. July 29, 2016)<\/p>\n

. . .<\/p>\n

III. The abandonment doctrine applies to Samalia’s case<\/strong><\/p>\n

\u00b620 Samalia argues that the abandonment doctrine should not apply to cell phones or that there should be at least a heightened showing of intent to abandon. We hold that the abandonment doctrine applies to cell phones and that the trial court appropriately found that Samalia abandoned his cell phone.<\/p>\n

\u00b625 Neither Riley nor Hinton can be read for the proposition that the abandonment doctrine should not apply to cell phones or should be limited in its application to cell phones. The Riley holding that cell phones may not be searched incident to arrest without a warrant was based on the fact that such cell phone searches do not fall into the particular justifications for the search incident to arrest exception. Hinton was predicated on the fact that revealing some information in one’s cell phone to third parties as a means of modern communication has become a common practice. But in this case and for the abandonment doctrine, there has been no advancement in technology to cause one to abandon property in stolen vehicles while attempting to flee from police. Moreover, the rationale driving the abandonment doctrine fits cell phone searches. When an individual voluntarily abandons an item, not as a facet of modern communication but to elude the police, that individual voluntarily exposes that item\u2014and all information that it may contain\u2014to anyone who may come across it. Cell phones are no different in this respect than for any other item; the abandonment doctrine applies to all personal property equally.<\/p>\n

\u00b626 Therefore, we decline to find an exception to the abandonment doctrine for cell phones. We consider, then, whether the trial court properly found abandonment under these facts.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Cell phones are the \u201cprivate affairs\u201d of Washingtonians under their state constitution, merely stating the obvious, but they can be abandoned like anything else, and the court declines to adopt a cell phone exception to abandonment. State v. Samalia, 2016 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[48,5],"tags":[],"class_list":["post-23144","post","type-post","status-publish","format-standard","hentry","category-abandonment","category-cell-phones"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/23144","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=23144"}],"version-history":[{"count":2,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/23144\/revisions"}],"predecessor-version":[{"id":23157,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/23144\/revisions\/23157"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=23144"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=23144"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=23144"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}