Monday, November 8, 2010

More on Abandoned Cell Phones

More follow-up to the question about whether police can lawfully search the contents of an abandoned cell phone.

A January recent case out of the South Dakota Supreme Court illustrates this issue. State v. Thunder, 777 N.W.2d 373 (S.D. 2010).

In this case, the defendant lived in a room in a house rented by others. He had a bed, a television, and other personal items in this bedroom. There was no key to the lock to his room; instead he opened the lock using a wire hanger. He was asked to leave the home on several occasions. After the final time, the tenants used a wire hanger to open the door to the defendant's room to clean it out. There, they found an old cell phone that the defendant had been using as an alarm clock and camera. The tenants took the phone and activated it. While using the phone, they found images and videos that appeared to depict the sexual abuse of girls from the area.

The police were notified, and an officer viewed the videos on the phone. The defendant was subsequently convicted of rape and the production of child pornography.

The Fourth Amendment issue is whether the police could view the images and videos on the cell phone without a warrant. The defendant argued that "he had a reasonable expectation of privacy in the cell phone because he kept it amongst his personal belongings in a locked bedroom." However, the court rejected this argument, in part because he had abandoned the phone. (The Court also relied upon the fact that the Defendant did not have permission to use the phone in the first place.)

I remain troubled by an analysis that finds there is no expectation of privacy in the contents of abandoned cell phones. Experience suggests that people maintain a reasonable expectation of privacy in the contents even in lost or abandoned cell phones. The South Dakota Court did not really address this aspect of the issue.


  1. You seem to have failed to comment on the aspect that non-State actors may have breached the expectation of privacy, and then reported what they learned to the police. I'm under the impression that the Fourth Amendment constrains the State, and not private individuals (provided they aren't intentionally working in cahoots with the police). So in the South Dakota case, Thunder was out of luck.

  2. Thanks for the comments. Keep 'em coming.

    The "civilians" in this case never watched the videos, I believe. When they saw the incriminating evidence, they called the police. So I wanted to focus on the police actions dealing with an abandoned cell phone, and whether the expectation of privacy survives the abandonment.

    Imagine this situation: I claim there is evidence of a crime on your cell phone. Does that alone give the police the ability to conduct a warrantless search of your phone? Clearly, no. It may be enough to get a warrant depending on the circumstances.

  3. Warrant-less search may be conditioned on the "exigency" of the crime reported, obviously. And getting a warrant would be dependent on the police convincing a judge that the informant was credible and the information provided by the informant be persuasive. Both are fairly low barriers.