State v. Brown, South Carolina Supreme Court, Filed June 13, 2018: No Search Warrant Necessary for an Abandoned Cell Phone

In State v. Brown, decided last week, the SC Supreme Court held that, when a burglar drops their cell phone at the crime scene and does not attempt to recover it, they no longer have a reasonable expectation of privacy in its contents and police do not need to get a warrant before searching the phone.

The alleged victims realized that their home had been burglarized when they heard a cell phone ringing in a bedroom – when they looked, they found broken windows, missing property, and a stranger’s cell phone ringing on the bedroom floor…

Six days later, a police detective unlocked the phone (the password was set to 1,2,3,4) and found identifying information about its owner, leading them to arrest the defendant.

When do Police Need a Warrant to Search a Cell Phone?

In Riley v. California, the US Supreme Court found that police cannot seize a cellphone and search it without first getting a search warrant from a judge. Cell phones are different than other items that may be found on a suspect’s person, because:

• “[M]any of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate;”
• “Data on a cell phone can also reveal where a person has been… and can reconstruct someone’s specific movements down to the minute… within a particular building;”
• “[A] cell phone search would typically expose to the government far more than the most exhaustive search of a house;” and
• “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.”

But, what if the cellphone was abandoned?

A Search Warrant is Not Necessary for Abandoned Property

The Court held that Brown abandoned his cellphone (no doubt chuckling softly to themselves as they wrote the opinion), because:

• He did not try to recover his phone, which was sitting in a police evidence locker;
• He did nothing to protect his phone’s privacy after he left it at the crime scene;
• He did not try to call the phone to see who answered;
• He did not try to text the phone to provide alternate contact information for himself;
• He did not text his phone with a message stating that he did not relinquish his right to privacy in the contents of his phone;
• He did not contact his service provider to get help finding his phone;
• He did not go back to the crime scene to look for his phone; and
• He did not call the police to see if they had his phone.

Although they recognized the difficult situation a burglar may be in when faced with the choice of searching for a cellphone left at the scene of a crime or losing their right to privacy in the phone’s contents, the Court ultimately held that “Brown’s decision not to attempt to recover the phone equates to the abandonment of the phone.”