OH5: Def didn’t abandon cell phone but it was still reasonable for officer to turn it on to see if he could ID owner

Defendant did not abandon his cell phone by leaving it charging in a vehicle (actually, it had fallen out but the charging cable was attached) where he was away from it. However, the officer reasonably could turn on the phone to determine whose it was when the owners did not return immediately. He saw child pornography on the phone and turned it off and later got a search warrant. State v. Kimes, 2021-Ohio-650, 2021 Ohio App. LEXIS 663 (5th Dist. Mar. 5, 2021):

[*P19] In the case before us the facts leading to the discovery of the phone are limited. The officer was pursuing the van, but the record does not show that the occupants of the van were aware of the pursuit. The van was legally parked on a side street and the officer came upon the van after the occupants had left the van. The phone was on the ground, still attached to the charging cable. The officer suggested that the driver exited the vehicle while the phone was on his lap or in a position such that the driver was unaware of the fact that the phone dropped to the ground. Further, the record does not allow us to identify the driver of the van with any confidence.

[*P20] Considering all the circumstances, we cannot agree that the phone was abandoned in the sense that the owner “voluntarily discarded, left behind, or otherwise relinquished his interest in the [cellphone] so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” Id. The cellphone found by the officer was not abandoned, but merely unattended by the owner. “The definition of “unattended” is similar to the definition of “lost,” which is defined as “gone out of one’s possession or control; mislaid.” Webster’s Third New International Dictionary at 1338. Therefore, we also look to case law addressing lost property to assist our analysis.” State v. Polk, 150 Ohio St.3d 29, 2017-Ohio-2735, 78 N.E.3d 834, ¶ 30.

[*P21] “Property is lost through inadvertence, not intent.” State v. Ching, 67 Haw. 107, 110, 678 P.2d 1088 (1984). Consequently, a person retains a reasonable expectation of privacy in a lost item, “diminished to the extent that the finder may examine the contents of that item as necessary to determine the rightful owner.” (Citations omitted.) Polk, supra at ¶ 30.

[*P22] We find that the cellphone was mislaid or unattended. The officer waited for the occupants of the van to return and, when they did not, he picked up the phone and pressed the home button to determine the rightful owner. The phone was activated and the officer noted evidence of child pornography and he immediately turned off the phone. Kimes did retain an expectation of privacy in the phone, but that right was diminished to the extent that the officer could examine the content of the phone to determine the owner. The officer’s activation of the home button with the intent to discover the rightful owner of the phone was not unreasonable under the circumstances, did not violate Kimes’ expectation of privacy and was therefore not a violation of Kimes’ Fourth Amendment rights.

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