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Ever forget where you left your phone?  One has to wonder what the defendant in a recent case thought after he left his cell phone at the scene of the crime. When the investigating officer used the cell phone to trace the robbery back to the defendant, the defendant sought to suppress the officer’s warrantless search of the phone.  The Alabama Court of Criminal Appeals wasn’t buying it.

The defendant was rummaging through a car when he was confronted by the owner.  The defendant reportedly pointed at gun at the owner and made off with the owners cell phone, computer, and some other items.  Apparently, while he took the owner’s phone, the defendant in the excitement of fleeing the scene, left his own cell phone in the owner’s car.

Unsurprisingly, the cell phone contained pictures, call histories, and other information which allowed the defendant to be identified by the investigating officer.  The investigating officer asked whether he needed a warrant and was told that he did not need one.  Therefore, it was a warrantless search of the phone that uncovered the information that connected this defendant to the robbery.

The Fourth Amendment to the United States Constitution protects against warrantless search and seizures where there is a reasonable expectation of privacy.  The expectation of privacy is strongest in the home, but it extends to our cars, our person, and our cell phones.  So, where someone is stopped or even arrested, their cell phone cannot typically be searched without a warrant.

There is, however, no expectation of privacy in an abandoned cell phone, and therefore no warrant requirement.  When the defendant left his cell phone behind, he left with it his reasonable expectation that it could not be searched by a police officer.

There was no indication that the phone was protected by a password or that it was otherwise encrypted.  Had the defendant encrypted the information on his phone, he might still have retained that expectation of privacy.  As it was, the Alabama Court of Criminal Appeals had no difficulty rejecting the defendant’s appeal.

In its decision, the Court seems to adopt a broad definition of “abandoned cell phone” to include something “voluntarily discarded, left behind, or otherwise relinquished.”  In other areas of property law, abandoned can sometimes includes finding that there was no intent to retrieve the abandoned item.  Where it’s applied, the item is not abandoned until the (former) owner stops searching for it.  That standard was neither incorporated nor discussed in this case.  Of course, “abandoned” in the context of whether a warrant is required to search a phone is whether the defendant abandoned their expectation of privacy, not – as in other abandonment cases – whether the owner abandoned their claim to ownership.  In this case, the defendant is still the owner of the cell phone (unless seized in some other proceeding not dependent on abandonment.)

Read the Alabama Court of Criminal Appeals opinion here and contact the lawyers of Browne House Law about your criminal defense or appeal.