Court Upholds Warrantless Search of Abandoned Cell Phone

by | June 28, 2018

State v. Brown, (S.C. 2018)

A man and his girlfriend returned home after a nice holiday dinner, intending to open Christmas presents that he had lovingly arranged on the living room table. As his girlfriend was opening presents, the man heard a strange cell phone ringing in his bedroom. Going to the bedroom to investigate, he found that his window was broken and the apartment had been burglarized. His television, his laptop computer, two of his roommate’s laptops and some jewelry had been taken.

But a strange cell phone had been left behind. A responding officer seized the cell phone. Some time later, a detective applied his best detecting skills to crack the security code. Knowing that Apple wouldn’t help him, he set out to apply the trial-and-error cryptology method.

The detective defeated the owner’s best efforts to keep the phone locked by trying the code “1-2-3-4.” The phone opened instantly, displaying a photo of a man in distinctive dreadlocks. Using the phone directory, the detective found an entry for “Grandma.” A database check of Grandma’s phone number led to the name of Keith Brown living at the location to which Grandma’s phone number was registered.

A driver license photo for Brown matched the phone screen photo. The detective went to the house and spoke to Brown. Brown immediately identified the phone as his, but claimed he’d lost it. Brown was arrested and charged with burglary.

Brown sought to have the phone evidence suppressed, claiming the detective unlawfully searched his phone. Brown argued that the Supreme Court decision in Riley v. California (134 S.Ct. 2473 (2014)) substantially raises the privacy bar for the search of a modern cell phone. The court agreed with Brown on the Supreme Court’s point that, for many Americans, cell phones hold “the privacies of life,” including Grandma’s phone number and Brown’s dreadlock photo. Notwithstanding, Riley did nothing to alter the property analysis of abandoned property. Brown’s abandonment of his cell phone (or apparent attempt to find it by calling it) not only extinguished any reasonable expectation of privacy, but provides Brown with evidence that he may want to consider another line of work. We catch the dumb ones.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

More Posts
Share this post:

The Briefing – Your source for the latest blog articles, leadership resources and more