The Abandonment of Digital Devices – North Carolina Criminal Law

The Abandonment of Digital Devices – North Carolina Criminal Law

Our cell phones and laptops normally are subject to a reasonable expectation of privacy, meaning that police cannot search them without a search warrant or an applicable exception to the warrant requirement. But when a person abandons a digital device, he or she relinquishes that expectation of privacy and police may examine the device without a warrant or an exception. This post discusses when a device has been abandoned and explores several common fact patterns.

Abandonment generally. “The law is well established that a person who voluntarily abandons property loses any reasonable expectation of privacy in the property and is consequently precluded from seeking to suppress evidence seized from the property.” United States v. Leshuk, 65 F.3d 1105 (4th Cir. 1995). See also State v. Williford, 239 N.C. App. 123 (2015) (applying the abandonment doctrine to uphold the retrieval and forensic examination of a cigarette butt). Whether property has been abandoned – as opposed to being lost or simply temporarily placed somewhere – is largely a question of the owner’s intent. However, like other Fourth Amendment determinations, a court’s inquiry into abandonment is not a subjective one. Rather, a court seeks “objective evidence of the intent of the person who is alleged to have abandoned the place or object.” United States v. Ferebee, 957 F.3d 406 (4th Cir. 2020) (cleaned up).

Common fact patterns involving digital devices. An owner may abandon a digital device just as with any other property. However, most phone owners can attest that it is common for an owner to misplace a digital device without intending to abandon it. The Fourth Circuit has noted this fact and has cautioned that “[a]bandonment should not be casually inferred” and that “the simple loss of a cell phone does not entail the loss of a reasonable expectation of privacy.” United States v. Small, 944 F.3d 490 (4th Cir. 2019). See also State v. Valles, 925 N.W.2d 404 (N.D. 2019) (a phone was not abandoned when it was found in an apartment parking lot, turned in to police, and its owner did not file a police report or attempt to retrieve it within a day of its disappearance). Nonetheless, courts have found abandonment in a number of common fact patterns as described below.

Leaving a phone at a crime scene. Criminals apparently misplace their phones as often as everyone else. Unfortunately for them, sometimes they put their phones down or drop them in the midst of a crime. After an offender leaves the scene and realizes that he or she no longer has his or her phone, he or she may be reluctant to return to attempt to recover the device. If the criminal doesn’t promptly return, has he or she abandoned the phone?

Probably so, although the exact moment of abandonment may be hard to discern. The Supreme Court of South Carolina discussed this fact pattern in State v. Brown, 815 S.E.2d 761 (S.C. 2019), and held that a burglar who left his phone in a victim’s home had abandoned it by the time police searched it without a warrant several days later:

[Presumably] Brown did not intentionally leave his cell phone at the scene of the crime, for he must have known that doing so would lead to the discovery that he was the burglar. Thus . . . the mere act of leaving the phone at the scene of the crime [wasn’t] an intentional relinquishment of his privacy. . . . However, when a person loses something of value—whether valuable because it is worth money or because it holds privacies—the person who lost it will normally begin to look for the item. . . . The record contains no evidence Brown did anything during this time to try to recover his phone [such as returning to the crime scene, calling or texting the phone, or seeking information from the service provider].

See also Tolbert v. State, 274 So.3d 325 (Ala. Ct. Crim. App. 2018) (an armed robber inadvertently left his phone in victim’s car, thereby abandoning it, citing Edwards v. State, 497 S.W.3d 147 (Tex. Ct. App. 2016)); United States v. Quashie, 162 F.Supp.3d 135 (E.D.N.Y. 2016) (a phone was abandoned when left inadvertently at a crime scene and the perpetrators chose to leave it there rather than to return, retrieve it, and risk getting caught). But cf. State v. Peoples, 378 P.3d 421 (Ariz. 2016) (in a case in which the defendant was charged with sex crimes against his girlfriend and/or with her dead body, committed at her home, the court held that the defendant did not abandon his phone when he left it in the girlfriend’s bathroom briefly while he came out of the home to direct paramedics).

Leaving a phone in a car after a wreck. Car wrecks feature in quite a few criminal cases, whether as a direct result of criminal activity – such as driving while impaired – or as a result of a suspect’s efforts to elude apprehension. When a suspect wrecks his or her car, then jumps out and runs but leaves his or her phone behind, has he or she abandoned the device?

In Small, supra, the Fourth Circuit answered that question in the affirmative. In that case, a carjacking suspect fled from police, crashed his vehicle, then sought to escape on foot. Officers found a phone on the ground near the crash site. They examined the phone and found a number for “my wife.” They called the number and spoke to the defendant’s wife, who identified the defendant as the phone’s owner. The defendant contended that the warrantless search and use of his phone was improper, but the district court found that he had abandoned it and the Fourth Circuit agreed. The evidence suggested “a fleeing suspect tossing aside personal items while attempting to evade capture.” The court found that the items “were purposefully removed and tossed aside,” and that the defendant may have discarded the phone in particular to avoid the risk that the police would track him via his phone.

Other cases in a similar vein include United States v. Crumble, 878 F.3d 656 (8th Cir. 2018) (holding that the defendant “abandoned [a] vehicle and its contents, including [a] cell phone” when he wrecked the vehicle after a shootout and then fled on foot), and Harrison v. State, 32 N.E.3d 240 (Ind. Ct. App. 2015) (ruling that the defendant “fled into the woods . . . as [an officer] approached to investigate the wreck of the [defendant’s vehicle, so the defendant] cannot now claim that he had a protectable interest in the abandoned mobile phone [that was left in the car]”).

Disclaiming ownership of a phone. Suspects regularly disclaim ownership of personal property. If police find a bag that contains contraband in a bus luggage compartment, the suspect cries out, That’s not my bag! If police find a phone sitting on a table next to stolen property, everyone in the room says, That’s not my phone! When a suspect disclaims ownership of a digital device in this way, may an officer conclude that the suspect has abandoned the device?

Under some circumstances, probably so. For example, in United States v. Escamilla, 852 F.3d 474 (5th Cir. 2017), the defendant was stopped by Border Patrol officers and disclaimed ownership of a phone found in the truck he was driving. A warrantless search of the phone helped to connect the defendant to drugs found in the vehicle, and the court ruled that when he “expressly disclaimed ownership of the phone and left it in the possession of [federal] agents [the defendant] abandoned the phone.” See also State v. Copley, 660 S.W.3d 31 (Missouri Ct. App. 2023) (an officer stopped the defendant for a traffic violation and saw a phone plugged into the vehicle; the defendant, a registered sex offender, said that the phone was not his; the officer searched it and found child pornography; the reviewing court found that “by affirmatively disclaiming any ownership or interest in the phone at the time it was discovered, Defendant abandoned any legitimate expectation of privacy in the contents of that phone as if he had thrown it out the window”).

However, there are also cases suggesting some limitations on that general rule. In United States v. Lopez-Cruz, 730 F.3d 803 (9th Cir. 2013), Border Patrol officers stopped the defendant’s vehicle, suspecting he might be involved in alien smuggling. There were phones in the vehicle, and an officer asked whose they were. The defendant said that the car and the phones belonged to a friend. The officer proceeded to do a consent examination of the phones, then – according to the court – exceeded the scope of the defendant’s consent by answering one of the phones when it rang and impersonating the defendant. The government sought to justify the officer’s actions by arguing that the defendant abandoned the phones when he denied ownership of them, but the court found otherwise. Although the defendant denied owning the phones, he contended that he was using the phones with the consent of their owner and accordingly had an expectation of privacy in them.

State case law also suggests that a denial of ownership is not always conclusive evidence of abandonment. In State v. Cooke, 54 N.C. App. 33 (1981), a suspect denied ownership of a suitcase but his traveling companion said it belonged to the suspect and the suspect’s name was on it. Under those facts, the court of appeals indicated the suspect’s disclaimer of ownership did not establish abandonment.

Leaving a phone in a former residence. Among the foundational abandonment cases is Abel v. United States, 362 U.S. 217 (1960). The facts of the case sound like they come from a movie. The FBI suspected the defendant of espionage. After the defendant checked out of a hotel, agents searched the room and found a “hollowed-out pencil [containing microfilms] and [a] block of wood containing a cipher pad” in the trash can. Although the agents didn’t have a warrant, the Court found that the search of the room and the seizure of the articles was lawful as the defendant had vacated the room and left the items in the trash. In other words, the defendant “had abandoned these articles.” Might this same reasoning apply when a suspect leaves a digital device behind in a hotel room, or at a prior residence?

Indeed it might. In United States v. Gregg, 771 Fed. Appx. 983 (11th Cir. 2019) (unpublished), the defendant was under investigation for child pornography offenses. During the investigation, he moved out of the apartment he had shared with his girlfriend. He took some of his personal property but left other items behind, including an old, broken cell phone that was in a bedside table. Despite her requests that he retrieve his remaining possessions, he did not do so. After several weeks, she provided the old phone to the police, who searched the phone and found incriminating evidence. Both the trial and appellate courts determined that the phone was abandoned when the defendant moved out and failed to take it with him or to retrieve it promptly, even after being reminded to do so.

Even closer to Abel is United States v. Washington, 536 Fed. Appx. 810 (10th Cir. 2013) (unpublished), where officers arrested a defendant in a motel room in connection with drug offenses. The officers went back later, after checkout time, and searched the room. They found a phone “under the bathroom sink, its screen smashed, in a crevice near the wall,” and located incriminating evidence on the phone. The trial court found that the defendant “clearly abandoned the phone under the sink, smashing the screen and making it unusable, and he apparently intended that it remain there after his rental period for the room expired,” and the Tenth Circuit affirmed, noting that the trial court’s inference regarding the defendant’s intent was perhaps debatable on these facts but was not clearly erroneous. See also Kelso v. State, 562 S.W.3d 120 (Tex. Ct. App. 2018) (the defendant moved out of the home she shared with her husband and left two phones behind, making no effort to retrieve or recover them; she thereby abandoned them).

Conclusion. At least one commentator has argued that phones should be exempt from the abandonment doctrine due to the volume of personal information they contain. See Abigail Hoverman, Note, Riley and Abandonment: Expanding Fourth Amendment Protection of Cell Phones, 111 Nw. U. L. Rev. 517 (2017) (arguing that “the abandonment theory should not apply to cell phones because the nature of the information contained in a phone is completely different than the information that can be gleaned from trash, illegal drugs, or weapons left behind in traditional abandonment cases both in sensitivity and quantity”). Whatever the merits of that suggestion, it isn’t current law. The abandonment doctrine remains relevant to a number of common fact patterns involving searches of digital devices.

Post Comment