Both the United States and Missouri Supreme Courts require a search warrant for a police officer to search a cell phone, except in certain circumstance. One well-recognized exception to this rule is exigent circumstances, defined as “whether the facts… would lead a reasonable, experienced officer to believe that there was an urgent need to render aid or take action.”
Are there other exceptions? An Eighth Circuit Court of Appeals opinion recently held that the police do not need a search warrant in order to search an abandoned cell phone.
In this case police officers in St. Paul, Minnesota received a report of two vehicles exchanging gunfire and were dispatched to a scene where a Buick crashed into a house. The wrecked Buick had bullet holes along its passenger side and a shot-out rear window. The officers noticed a key in its ignition and a handgun on the driver’s side floorboard. A witness informed the officers that after the crash the other vehicle’s shooter continued to fire at the Buick. The two male occupants of the Buick fled on foot leaving behind a cell phone. The officers found a man matching the description hiding behind a shed, a block and a half away, who was identified as Prentiss Crumble.
The police then obtained a search warrant for the cell phone left in the car and then conducted a search of the phone finding a video of Crumble on the phone brandishing his handgun similar to one that was recovered from the abandoned vehicle. The cell phone video was recorded shortly before the shooting. Crumble was then charged with a felony possession of a firearm. He then moved to suppress the evidence recovered from the cell phone. The federal district court concluded that the evidence from the cell phone was admissible because Crumble had abandoned his cell phone. Crumble appealed to the Eighth Circuit Court of Appeals.
The Eighth Circuit noted that the Fourth Amendment protects citizens “against unreasonable searches and seizures.” In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he or she personally has a “reasonable expectation of privacy in the place searched․” The Opinion starts with the premise that a defendant does not have a reasonable expectation of privacy in abandoned property; therefore, the police had the right to search the cell phone without a warrant. The Court noted that case law strongly supports the proposition that a “… warrantless search of abandoned property does not implicate the Fourth Amendment, for any expectation of privacy in the item searched is forfeited upon its abandonment.”
So what does this mean or more specifically when have you abandoned your cell phone? After all emails, text messages, pictures, calendar, photos, call records, contacts, music, and other important personal matters can be found on our cell phones. Surely when you lose your cell phone have not abandoned it. In fact, if you’ve ever lost your cell phone, as I have, your anxiety level is high and I guarantee you that you are frantically searching for your cell phone.
It seems pretty clear to me that the Eighth Circuit has teed this case up for review by the Supreme Court because the opinion does not rely upon the fact that the police officers obtained a search warrant. The search warrant is simply a backup in case the abandonment theory fails. If this case stands, it would be a major victory for law enforcement. Since our entire lives seem to be tied up with information stored on our cell phones I would be very cautious about this opinion because courts will be very careful in laying down guidelines as to when a cell phone has been abandoned. I expect that the court will be very cautious in determining that losing a cell phone constitutes abandonment. Stay tuned.
Howard Wright© 2018
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