Monday, March 23, 2015

The Stolen Car, the Abandoned Cell Phone and Privacy

After Adrian Samalia was convicted of possessing a stolen motor vehicle in violation of Washington state law, he appealed.  State v. Samalia, 2015 WL 968754 (Washington Court of Appeals 2015).  The court begins its opinion by explaining how the prosecution arose:
Yakima Police Officer Ryan Yates was on patrol when his vehicle license plate reader indicated he had passed a stolen vehicle. Yates confirmed the vehicle was stolen by radio and then followed the vehicle that stopped shortly thereafter. The driver got out of the vehicle and faced towards Yates. The driver would not obey Yates' command to get back in the vehicle and fled. Yates pursued the male driver but he got away.

Yates returned and searched the car, partly to help identify the driver. He found a cell phone on or in the center console. Not knowing who the phone belonged to, he called some phone numbers found in the cell phone's contacts section. He spoke to Deylene Telles who agreed to meet him.

Yates reported to his sergeant what happened and gave the phone to him. The sergeant met with Telles and called her cell phone from the abandoned cell phone. Her cell phone displayed Samalia's name and picture. The sergeant gave the name to Yates, who located Samalia's picture in a police database. Yates then identified Samalia from the database picture as the fleeing man who had been driving the stolen vehicle.
State v. Samalia, supra.
After he was charged, Samalia
moved unsuccessfully to suppress the cell phone evidence. . . . From the above facts, the trial court concluded the cell phone was abandoned, therefore, Samalia no longer had an expectation of privacy in it. Following a bench trial, the court found Samalia guilty as charged. 
State v. Samalia, supra.
On appeal, Samalia argued that the trial court judge erred by denying his motion to suppress “evidence obtained from his cell phone” because he argued that “the evidence was constitutionally protected and could not be accessed without a warrant.” State v. Samalia, supra.  The Court of Appeals began its analysis of his argument by noting that
[u]nder the Washington Constitution, article I, section 7, `No person shall be disturbed in his private affairs . . . without authority of law.’ Our Supreme Court recently held private affairs include information obtained through a cell phone. State v. Hinton, 179 Wash.2d 862, 319 P.3d 9 (2014).

Additionally, the Supreme Court of the United States recently noted, `[m]odern 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[.] The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.’ Riley v. California, 134 S. Ct. 2473 (2014).

A warrantless search violates article I, section 7 unless it falls under one of `”a few jealously guarded exceptions.”’ State v. MacDicken, 179 Wash.2d 936, 319 P.3d 31 (Washington Supreme Court 2014) (quoting State v. Afana, 169 Wash.2d 169, 233 P.3d 879 (Washington Supreme Court 2010)).
State v. Samalia, supra.
The Court of Appeals goes on to explain that
[s]earching voluntarily abandoned property is an exception to the warrant requirement. State v. Evans, 159 Wash.2d 402, 150 P.3d 105 (Washington Supreme Court 2007); see also State v. Reynolds, 144 Wash.2d 282, 27 P.3d 200 (Washington Supreme Court 2001) (law enforcement may retrieve and search voluntarily abandoned property without a warrant or probable cause). `Voluntary abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent.’ State v. Evans, supra (citing 1 Wayne R. LaFave, Search and Seizure § 2.6(b), at 574 (3d ed.1996)).

`”Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered.”’  State v. Evans, supra (quoting State v. Dugas, 109 Wash. App. 59236 P.3d 577 (Washington Court of Appeals 2001)). The question is whether the defendant relinquished his reasonable expectation of privacy by discarding the property. . . . The defendant bears the burden of showing he had an actual, subjective expectation of privacy and that his expectation was objectively reasonable. State v. Evans, supra.
State v. Samalia, supra.
The court also pointed out that a
critical factor in determining whether abandonment has occurred is the status of the area where the searched item was located. State v. Hamilton, 179 Wash.App. 870, 320 P.3d 142 (Washington Court of Appeals 2014). `Generally, no abandonment will be found if the searched item is in an area where the defendant has a privacy interest.’ State v. Hamilton, supra.

Here, the search area was an unattended stolen vehicle Samalia had been driving and had fled from when a police officer approached and directed him to return to the vehicle. A suspect's hasty flight under these circumstances is sufficient evidence of an intent to abandon the vehicle. See U.S. v. Tate, 821 F.2d 1328 (U.S. Court of Appeals for the 8th Circuit 1987) (suspect who fled unlocked vehicle parked on public road abandoned expectation of privacy); see also Kurtz v. People, 177 Colo. 306, 494 P.2d 97, (Colorado Supreme Court 1972). . . .  (items seized from vehicle were admissible based on the abandonment of the vehicle, the flight of the accused from the scene on foot, and the fact the accused remained at large at the time of the search). Thus, the status of the area searched shows abandonment. We conclude, Samalia did not have a privacy interest in the searched area.
State v. Samalia, supra.
It went on to note that
[w]e next look to the reasonableness of the officer's actions and Samalia's intent. Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered. State v. Evans, supra. The question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of article I, section 7.
State v. Samalia, supra.
The Court of Appeals then applies these principles to the facts in this case:
Yates spotted and followed a stolen vehicle until it stopped. The driver saw the officer, ignored instructions to remain in the vehicle, fled, and, evaded pursuit. The officer reasonably returned to the vehicle to search for evidence of the driver's identity and continue his pursuit. Samalia's flight from the stolen vehicle under these circumstances shows his intent to abandon the vehicle, including its contents.

Citing State v. Hinton, 179 Wash.2d 862, 319 P.3d 9 (Washington Supreme Court 2014) and Riley v. California, supra, Samalia incorrectly argues a warrant is always required to search a cell phone. In Hinton, police confiscated a cell phone from an arrestee. State v. Hinton, supra. The cell phone received calls and messages at the police station leading to Hinton's arrest and controlled substance conviction. The Hinton court held, `We find that the officer's conduct invaded Hinton's private affairs and was not justified by any authority of law offered by the State.’ State v. Hinton, supra.  
State v. Samalia, supra.
The court goes on to explain that in the Riley case, the U.S. Supreme Court
concluded the search incident to arrest exception to the warrant requirement does not apply to digital data on a cell phone in an arrestee's possession. Riley v. California, supra. But, the Riley court reasoned `other case-specific exceptions may still justify a warrantless search of a particular phone.’ Riley v. California, supra. Specifically, the Riley court noted the `well-reasoned’ exigency exception, `to pursue a fleeing suspect,’ as a case that may excuse a cell phone search warrant. Riley v. California, supra.

Samalia's case is distinguished from Hinton and Riley because the cell phone was not seized from Samalia's person during his arrest, but was found abandoned in a stolen vehicle. Voluntarily abandoned property is an exception to the warrant requirement. State v. Evans, supra.

The use of the cell phone in Mr. Samalia's case comes within both the Evans exception and the exigency exception to pursue a fleeing suspect recognized in Riley. Moreover, the use of Samalia's cell phone was attenuated because the cell phone information used to get his name came from Ms. Telles' cell phone, not the abandoned cell phone, and the officer used the name to identify Mr. Samalia from existing police records. Further, the police were unsure who owned the abandoned cell phone.
State v. Samalia, supra.
The Court of Appeals therefore held that
[g]iven our reasoning, we conclude the officer did not require a warrant to use the abandoned cell phone in the manner described here. Further, a warrant was unnecessary under Riley because the abandoned cell phone was used to pursue the fleeing suspect.

Finally, the use of the abandoned cell phone was too attenuated because the information leading to Samalia's identification in a police database came in the form of a name appearing on Ms. Telles' cell phone.

Therefore, we hold the trial court did not err in denying Samalia's . . . suppression motion concerning his identification. Given our analysis, we do not reach the State's arguments concerning standing, ownership of the cell phone, and the State's right to impound the stolen vehicle.
State v. Samalia, supra.  (As Wikipedia notes, “hot pursuit” of a fleeing felon is an exception to the 4th Amendment’s default requirement that police obtain a warrant before searching property or seizing a person.)
One of the Court of Appeals judges dissented, explaining, in part, that
[n]o reported Washington decision has directly addressed whether a citizen relinquishes his reasonable expectation of privacy in the data on his cell phone by leaving the phone behind at the scene of a crime. In my view, the Gunwall to Jorden line of cases,  . . .  collectively compel the conclusion that the voluminous private information likely to be found on a cell phone remains protected by article I, section 7 of the Washington constitution even when the phone is left behind in a place where the defendant has no privacy interest. Requiring a search warrant will assure that there is probable cause to believe that the defendant is involved in criminal activity and that evidence of the criminal activity can be found in the data on the cell phone. In this case Yates presumably would have been able to demonstrate probable cause to a magistrate, as long as he first spoke to the owner of the stolen car and confirmed that the phone did not belong to her or some innocent prior passenger.

The only other exception to the warrant requirement for the data on Samalia's cell phone identified by the majority is the exigency exception that it notes was recognized in Riley. . . . But Riley holds that obtaining a warrant to search data on a cell phone should be the rule because `data on the phone can endanger no one.’ Riley v. California, supra. While recognizing that the exigent circumstances exception will be available in some cases, the Court observed that the exception `requires a court to examine whether an emergency justified a warrantless search in each particular case.’ Riley v. California, supra.

Here, the State did not argue that exigent circumstances existed nor did the trial court find any. . . . The only crime as to which Yates had probable cause was Samalia's possession of a stolen car, and the stolen car had been left behind. There was no evidence that Samalia was armed, was suspected of any other crime, or otherwise presented a danger.

State v. Samalia, supra (Judge Siddoway, dissenting).

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