Police Search of an Abandoned iPhone Ruled Unconstitutional

I have posted warnings about not abandoning your cell phone.  Believe it.

A new example is found in a Colorado opinion, People v. Schutter.  But in this case, the court found that the phone was not abandoned and that a police search was, therefore, unconstitutional.

The defendant in this case was charged with various felony drug offenses.  The evidence was obtained after his home was searched pursuant to a warrant that relied on information discovered during an examination of his iPhone. 

The defendant had accidently locked his iPhone in a convenience store restroom.  When he approached the store clerk and asked for help in retrieving his cell phone, the clerk said that he was too busy at that time and that the defendant would have to come back later.  An hour later, when the defendant had not returned, the clerk turned the phone over to police officer. 

The officer answered incoming calls and reviewed text messages.  When the defendant when to the police station to try to retrieve the phone, the police refused.  The police later obtained a warrant to conduct a more complete search of the phone. 

The court first observed that the police would be justified in conducting at least some limited inspection of lost property to discover the owner's identity.  However, in this case the defendant's iPhone was neither abandoned, lost, nor mislaid such that the police would have had any need to identify the owner.  Rather, the police knew that the owner had inadvertently left the iPhone in a restroom, knew precisely where it was, and sought its return from both the clerk and the police. 

The dissenting judge challenged these facts, writing:  “the defendant left the store without making any arrangements with the clerk for recovering the phone. He did not ask the clerk to retrieve the phone, nor did the clerk make such a promise. He did not inquire into when the clerk would no longer be busy. He did not leave his name or a way in which he could be contacted if the phone were retrieved. Nor did he ever return to the convenience store. In sum, the defendant left the convenience store despite the fact that his phone was in a public space that was only temporarily locked.” 

The take away?  The Defendant in this case was successful in a close case.  If the defendant had a passcode on the iPhone, for example, this would be a much clearer case.  But everyone should be aware that if a phone is left behind, the finder may look through the contents (sometime legitimately).