On June 13, 2018, the Supreme Court of South Carolina decided State v. Brown[i], in which the court discussed whether a burglary suspect, who apparently dropped his cell phone at the scene of a burglary, abandoned his Fourth Amendment reasonable expectation of privacy in the contents of the phone. The facts of Brown, taken directly from the case, are as follows:
On December 22, 2011, one of the victims and his girlfriend returned from dinner to his condominium on James Island in the city of Charleston. The victim testified they went straight to the living room because “I had arranged all of her Christmas presents . . . on the center coffee table.” While she was opening the presents, he heard a phone ringing down the hall toward the bedrooms. Initially, he assumed the phone belonged to his roommate or her boyfriend. After the phone rang a few times, he saw a light and feared it might be someone with a flashlight. He testified, “I got a little nervous so I got up and told my girlfriend to stay in the living room and I walked down the hall and [saw] the ringing phone . . . on my bedroom floor.” When he turned on his bedroom light, he realized his home had been burglarized. His “window had been broken out” and there was “glass everywhere.” The burglar stole his television, his laptop computer, two of his roommate’s laptops, and some of her jewelry.
The victim called the police. The first officer on the scene took the cell phone to the police station and secured it in a locker in the evidence room. Six days later, Detective Jordan Lester retrieved the cell phone and was able to observe “a background picture of a black male with dreadlocks.” Considering the phone to be “abandoned property,” he guessed the code to unlock the screen—1-2-3-4—and opened the phone without a warrant. Detective Lester looked through the “contacts” stored on the phone and found a person listed as “Grandma.” He entered “Grandma’s” phone number into a database called Accurint and identified a list of her relatives, which included a man matching the age of the person pictured on the background screen of the cell phone—Lamar Brown. Detective Lester then entered Brown’s name into the South Carolina Department of Motor Vehicles database and looked at Brown’s driver’s license photograph. After comparing the photographs, Detective Lester determined Brown was the man pictured on the screen of the cell phone.
Detective Lester sent other officers to Brown’s home to question him. The officers showed Brown the cell phone and informed him it was found at the scene of a burglary. Brown admitted the phone belonged to him, but claimed he lost it on December 23rd—one day after the burglary occurred. Brown also admitted that no one else could have had his cell phone on December 22nd. After questioning Brown, the police charged him with burglary in the first degree.[ii]
Brown filed a motion to suppress and alleged the warrantless search of his phone violated the Fourth Amendment. The trial court denied the motion and held that Brown abandoned the phone and had no reasonable expectation in its contents. The court of appeals affirmed the decision of the trial court. Brown filed a petition to the Supreme Court of South Carolina.
The issue before the court was whether Brown abandoned his cell phone for Fourth Amendment purposes when he left it at the scene of a burglary that he committed.
The court first discussed the legal principals involved in Browns case and stated
The Fourth Amendment guarantees us the right to be free from unreasonable searches and seizures. U.S. CONST. amend. IV; see also S.C. CONST. art. I, § 10. “Abandoned property,” however, “has no protection from either the search or seizure provisions of the Fourth Amendment.” State v. Dupree, 319 S.C. 454, 457, 462 S.E.2d 279, 281 (1995) (citing California v. Greenwood, 486 U.S. 35, 40-41, 108 S. Ct. 1625, 1628-29, 100 L. Ed. 2d 30, 36-37 (1988)). Under a standard abandonment analysis, “the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy.” Dupree, 319 S.C. at 457, 462 S.E.2d at 281 (quoting City of St. Paul v. Vaughn, 237 N.W.2d 365, 371 (Minn. 1975)). As the Fourth Circuit has described it, “When a person voluntarily abandons his privacy interest in property, his subjective expectation of privacy becomes unreasonable . . . .” United States v. Stevenson, 396 F.3d 538, 546 (4th Cir. 2005); see also id. (“‘[T]he proper test for abandonment is . . . whether the complaining party retains a reasonable expectation of privacy in the [property] alleged to be abandoned.'” (quoting United States v. Haynie, 637 F.2d 227, 237 (4th Cir. 1980))). In any Fourth Amendment challenge, “defendants must show that they have a legitimate expectation of privacy in the place searched.” State v. Missouri, 361 S.C. 107, 112, 603 S.E.2d 594, 596 (2004) (citing Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387, 401 (1978)). When the reasonable expectation of privacy is relinquished through abandonment, the property is no longer protected by the Fourth Amendment. Dupree, 319 S.C. at 457, 462 S.E.2d at 281.[iii] [emphasis added]
Brown argued that the United States Supreme Court case, Riley v. California[iv] impacts the abandonment analysis because the court held that cell phones today are different from other containers a person may carry in that they house nearly every aspect of a person’s life, from mundane to intimate, and hold the privacies of life.
The South Carolina Supreme Court acknowledged that Riley is an important case regarding warrantless searches of cell phones; however, the court also stated that Riley does not alter the abandonment analysis under the Fourth Amendment. Rather, the court should use Riley as a consideration in the abandonment analysis.
The court then set out to examine facts relevant to the issue of abandonment in Brown’s case. At the outset, the court stated that they would presume that Brown did not intentionally leave his phone at the scene of the burglary. The court also stated that it was unlikely that a police officer would believe that the act of leaving one’s phone at crime scene was an intentional relinquishment of the reasonable expectation of privacy. The court then stated
For at least a short period of time after the crime, therefore, the phone might not yet have been abandoned.[v]
The court then noted that when a person loses something of value, they will typically look for it, whether it is worth a lot of money or whether it contains the privacies of life. However, in Brown’s case, his phone was recovered by a police officer from the crime scene and held at the police station for six days. Brown made no attempt to locate his phone or contact the police department to inquire regarding his phone. The court stated that there was no evidence that he tried to call or text the phone to locate it, and no evidence that he called his service provider to attempt to locate the phone. Rather, Brown called his service provider and cancelled the cellular service to the phone.
The court then stated the rule regarding expectations of privacy under the Fourth Amendment as follows:
A legitimate expectation of privacy is both subjective and objective in nature: the defendant must show (1) he had a subjective expectation of not being discovered, and (2) the expectation is one that society recognizes as reasonable.” Missouri, 361 S.C. at 112, 603 S.E.2d at 596 (citing Oliver v. United States, 466 U.S. 170, 177, 104 S. Ct. 1735, 1741, 80 L. Ed. 2d 214, 223 (1984)).[vi] [emphasis added]
The court next applied the facts of Brown’s case to the expectation of privacy test above. As to the first prong of the test, the subjective (or personal) expectation of privacy, the court stated
Brown’s decision to forego looking for his phone demonstrates he did not expect to maintain his privacy in the information stored on his phone. In addition—although it is not clear Detective Lester knew this when he opened the phone—Brown told the officer who first interviewed him that he canceled cellular service to the phone when he realized “someone has [my] phone.” Considering these facts, Brown clearly had no “subjective expectation” that his privacy in the digital information on the phone would be preserved.[vii]
After concluding that the first prong concluded that that Brown did not possess a subjective (or personal) expectation of privacy, the court set out to determine the second prong, particularly whether the expectation of privacy is one that society would recognize as reasonable. While Riley held that, because cell phones contain such private information, even when the expectation of privacy is diminished, a search warrant must be obtained to search within the contents of the phone. However, the Supreme Court of South Carolina stated
In our abandonment analysis, however, the question is not whether Brown’s expectation of privacy was “diminished.” Rather, the question before us is whether Brown could reasonably expect to maintain any privacy interest in his phone after he chose to cancel cellular service and stop looking for it…The idea that a burglar may leave his cell phone at the scene of his crime, do nothing to recover the phone for six days, cancel cellular service to the phone, and then expect that law enforcement officers will not attempt to access the contents of the phone to determine who committed the burglary is not an idea that society will accept as reasonable.[viii]
As such, the court held that Brown did not possess a reasonable expectation of privacy in the cell phone because he left the phone at the scene of a burglary (albeit accidentally), made no attempt to locate the phone, and cancelled service to the phone, thereby abandoning the phone. The court then concluded by stating
Modern cell phones are not just another item of property, and the extent to which they “differ in both a quantitative and a qualitative sense from other objects” is an important factor to be considered in any abandonment analysis. Nevertheless, the standard abandonment analysis applies to cell phones. There is evidence in the record to support the trial court’s finding that Brown abandoned his cell phone. The decision of the court of appeals is AFFIRMED.[ix]
[i] Opinion No. 27814 (S.C. 2018)
[ii] Id. at 2-3
[iii] Id. at 3
[iv] 134 S.Ct. 2473 (2014)
[v] Brown at 5
[vi] Id. at 6
[viii] Id. at 7
[ix] Id. at 7-8