Court Says Password Protection Doesn't Restore An Abandoned Phone's Privacy Expectations

Privacy

from the 1.-throw-in-ditch-2.-go-to-Mexico-3.-move-to-suppress? dept

In a decision reached recently by a Florida federal court, a person has no expectation of privacy in a phone that was thrown away. [h/t Orin Kerr] In this case, the defendant was sought in connection with a missing child investigation. He was questioned by police and released. A few days later (when he was supposed to be meeting detectives at his house), the defendant (allegedly) went for a walk in the rain and got lost. He discovered his phone was wet and, according to his testimony, threw the phone in a ditch because he believed the wet phone was completely useless.

The defendant’s phone was recovered by someone else. The police traced the phone back to the phone’s (temporary) new owner. The phone was then subjected to a warrantless search. Police were hoping to find information about the missing child as phone records obtained earlier showed the defendant’s phone had been in the area. (They also exposed inconsistencies in the defendant’s assertions about where he had and hadn’t been.)

Instead, the police found something else: child porn. The defendant moved to have the evidence suppressed, arguing that while he may have abandoned the phone, he did not abandon his privacy interest in the phone’s [contents]. From the decision [PDF]:

Although the abandonment doctrine has long been in place, Defendant argues that this case does not align with current precedent. This is because, according to him, the item discarded was a passcode-locked cell phone. To be clear, Defendant concedes that he ditched the physical cell phone on May 31. But he argues that he still had a reasonable expectation of privacy in the phone’s contents because the phone was password-protected and because he would not have discarded it but for his belief that the phone was broken. (Doc. 56 at 13). In other words, he asserts that even if the phone worked when he discarded it, the contents were not accessible without his passcode, and thus he maintains standing to challenge the search of his phone’s contents.

The court calls this argument “novel,” and it sort of is. As the decision states, abandoned items — including containers — lose their privacy interest immediately. But not every court has seen it this way when it comes to password-protected cellphones. The court notes the Supreme Court’s Riley decision, which instituted a warrant requirement for cellphone searches because the vast amount of information stored in today’s cellphones makes them more analogous to a person’s house than the contents of a person’s pockets (as the government argued).

But the argument isn’t completely novel, as the Florida state appeals court arrived at the opposite conclusion late last year.

While we acknowledge that the physical cell phone in this case was left in the stolen vehicle by the individual, and it was not claimed by anyone at the police station, its contents were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it. Indeed, the password protection that most cell phone users place on their devices is designed specifically to prevent unauthorized access to the vast store of personal information which a cell phone can hold when the phone is out of the owner’s possession.

The court here cites the state court decision, but ultimately abandons it. (It has no precedential value in a federal court anyway, seeing as the state court decision didn’t rely on Florida state law, but rather a Supreme Court decision.) As it notes, that decision was one of several related to abandoned cellphones, but it was the only one to arrive at this expectation of privacy conclusion.

Defendant urges this Court to adopt the logic of K.C. and the dissenting opinions in Brown and Samalia. The Court respectfully declines to do so. To start, K.C. is not binding on this Court. And for the reasons previously stated, the Court does not agree that the reasoning in Riley for why cell phones should not be subjected to a warrantless search incident to arrest applies to abandoned cell phones with or without a passcode. Recall that the Supreme Court was concerned about the capacity to store private information on a cell phone that far exceeds that of other physical objects. But abandonment is about intent, and when a person abandons a physical object, he maintains no right of privacy in the contents. This is fundamentally different from a search incident to arrest, and the decision in K.C. does nothing to persuade this Court otherwise. Also telling, the Supreme Court in Riley did not require law enforcement officers to obtain a warrant to search every phone that falls into their possession.

The court goes on to note that the phone being thrown in a ditch simply for being wet isn’t a very credible assertion. First, the defendant made no effort to retrieve his phone, not even after he knew who had recovered it and that it was in working condition. Other testimony indicated several calls went unanswered before the phone was literally ditched by the defendant because it was too wet to use. And the court gives testimonial credit as to the phone’s condition to the person who found the phone since he didn’t know the defendant or have any details about the investigation. Then there’s the defendant’s apparent attempt to leave the country, which was uncovered by investigators.

In contrast to the state court ruling the federal court has no obligation to adopt, the defendant’s phone wasn’t merely left behind, but rather an affirmative effort made by the defendant to distance himself from his cellphone by throwing it into a ditch while “lost” in the rain (and apparently avoiding detectives coming to speak to him).

Chances are, this might have gone a little more the defendant’s way if he hadn’t tossed his phone out, immediately replaced it, and hightailed it towards Mexico. The court doesn’t sound like it’s making an across-the-board ruling on cellphone privacy, but rather responding to the circumstances of this particular case and the defendant’s lack of credibility.

Filed Under: 4th amendment, abandoned phone, passwords, privacy