March 28, 2018
OF CERTIORARI TO THE COURT OF APPEALS
from Charleston County J. C. Nicholson Jr., Circuit Court
Appellate Defender David Alexander, of Columbia, for
Attorney General Alan McCrory Wilson, Assistant Attorney
General William M. Blitch Jr., both of Columbia; and
Solicitor Scarlett Anne Wilson, of Charleston; all for
appeal we address whether the digital information stored on a
cell phone may be abandoned such that its privacy is no
longer protected by the Fourth Amendment. The trial court
determined the information on the cell phone in this case had
been abandoned, and admitted it into evidence. A divided
panel of the court of appeals affirmed. State v.
Brown, 414 S.C. 14, 776 S.E.2d 917 (Ct. App. 2015). We
affirm the court of appeals.
Facts and Procedural History
December 22, 2011, one of the victims and his girlfriend
returned from dinner to his condominium on James Island in
the city of Charleston. The victim testified they went
straight to the living room because "I had arranged all
of her Christmas present s . . . on the center coffee
table." While she was opening the presents, he heard a
phone ringing down the hall toward the bedrooms. Initially,
he assumed the phone belonged to his roommate or her
boyfriend. After the phone rang a few times, he saw a light
and feared it might be someone with a flashlight. He
testified, "I got a little nervous so I got up and told
my girlfriend to stay in the living room and I walked down
the hall and [saw] the ringing phone . . . on my bedroom
floor." When he turned on his bedroom light, he realized
his home had been burglarized. His "window had been
broken out" and there was "glass everywhere."
The burglar stole his television, his laptop computer, two of
his roommate's laptops, and some of her jewelry.
victim called the police. The first officer on the scene took
the cell phone to the police station and secured it in a
locker in the evidence room. Six days later, Detective Jordan
Lester retrieved the cell phone and was able to observe
"a background picture of a black male with
dreadlocks." Considering the phone to be "abandoned
property, " he guessed the code to unlock the
screen-1-2-3-4-and opened the phone without a warrant.
Detective Lester looked through the "contacts"
stored on the phone and found a person listed as
"Grandma." He entered "Grandma's"
phone number into a database called Accurint and identified a
list of her relatives, which included a man matching the age
of the person pictured on the background screen of the cell
phone-Lamar Brown. Detective Lester then entered Brown's
name into the South Carolina Department of Motor Vehicles
database and looked at Brown's driver's license
photograph. After comparing the photographs, Detective Lester
determined Brown was the man pictured on the screen of the
Lester sent other officers to Brown's home to question
him. The officers showed Brown the cell phone and informed
him it was found at the scene of a burglary. Brown admitted
the phone belonged to him, but claimed he lost it on December
23rd-one day after the burglary occurred. Brown also admitted
that no one else could have had his cell phone on December
22nd. After questioning Brown, the police charged him with
burglary in the first degree.
trial, Brown's counsel moved to suppress all evidence
obtained from the cell phone on the ground Detective Lester
conducted an unreasonable search of the phone in violation of
Brown's Fourth Amendment rights. The trial court found
Brown had no reasonable expectation of privacy in the
information stored on the phone because he abandoned it. The
jury convicted Brown of first-degree burglary, and the trial
court sentenced him to eighteen years in prison. We granted
Brown's petition for a writ of certiorari to review the
court of appeals' opinion affirming his conviction.
Fourth Amendment guarantees us the right to be free from
unreasonable searches and seizures. U.S. Const. amend. IV;
see also S.C. Const. art. I, § 10.
"Abandoned property, " however, "has no
protection from either the search or seizure provisions of
the Fourth Amendment." State v. Dupree, 319
S.C. 454, 457, 462 S.E.2d 279, 281 (1995) (citing
California v. Greenwood, 486 U.S. 35, 40-41, 108
S.Ct. 1625, 1628-29, 100 L.Ed.2d 30, 36-37 (1988)). Under a
standard abandonment analysis, "the question is whether
the defendant has, in discarding the property, relinquished
his reasonable expectation of privacy." Dupree,
319 S.C. at 457, 462 S.E.2d at 281 (quoting City of St.
Paul v. Vaughn, 237 N.W.2d 365, 371 (Minn. 1975)). As
the Fourth Circuit has described it, "When a person
voluntarily abandons his privacy interest in property, his
subjective expectation of privacy becomes unreasonable . . .
." United States v. Stevenson, 396 F.3d 538,
546 (4th Cir. 2005); see also id. ("'[T]he
proper test for abandonment is . . . whether the complaining
party retains a reasonable expectation of privacy in the
[property] alleged to be abandoned.'" (quoting
United States v. Haynie, 637 F.2d 227, 237 (4th Cir.
1980))). In any Fourth Amendment challenge, "defendants
must show that they have a legitimate expectation of privacy
in the place searched." State v. Missouri, 361
S.C. 107, 112, 603 S.E.2d 594, 596 (2004) (citing Rakas
v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58
L.Ed.2d 387, 401 (1978)). When the reasonable expectation of
privacy is relinquished through abandonment, the property is
no longer protected by the Fourth Amendment. Dupree,
319 S.C. at 457, 462 S.E.2d at 281.
contends, however, the reasoning of the Supreme Court of the
United States in Riley v. California, 573 U.S. ___,
134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), fundamentally alters
the abandonment analysis when the property in question is the
digital information stored on a cell phone. In
Riley, the Supreme Court described in extensive
detail the manner in which "[c]ell phones differ in both
a quantitative and a qualitative sense from other objects
that might be kept on an arrestee's person." 573
U.S. at ___, 134 S.Ct. at 2489, 189 L.Ed.2d at 446. Among the
many observations the Court made to explain these
differences, the Court stated, "many 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, " 573 U.S. at
___, 134 S.Ct. at 2490, 189 L.Ed.2d at 447, "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, " 573
U.S. at ___, 134 S.Ct. at 2490, 189 L.Ed.2d at 448, and
"a cell phone search would typically expose to the
government far more than the most exhaustive search
of a house, " 573 U.S. at ___, 134 S.Ct. at 2491, 189
L.Ed.2d at 448. The Court concluded, "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.'" 573 U.S. at ___, 134
S.Ct. at 2494-95, 189 L.Ed.2d at 452 (quoting Boyd v.
United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29
L.Ed. 746, 751 (1886)).
certainly agree with Brown that the reasoning of
Riley is important to the Fourth Amendment analysis
any time the police conduct a warrantless search of the
digital information on a cell phone. We find, however, that
Riley does not alter the standard abandonment
analysis. Rather, the unique character of cell
phones described in Riley is one factor a trial
court should consider when determining whether the owner has
relinquished his expectation of privacy.
to the abandonment analysis the trial court conducted in this
case, we review the trial court's decision for clear
error. State v. Moore, 415 S.C. 245, 251, 781 S.E.2d
897, 900 (2016). This means we "must affirm if there is
any evidence to support the trial court's [factual]
ruling, " 415 S.C. at 251, 781 S.E.2d at 900, but we
"review questions of law de novo, " State v.
Adams, 409 S.C. 641, 647, 763 S.E.2d 341, 344 (2014).
begin our review of the trial court's finding that Brown
abandoned his phone with the factual premise of
Riley, that cell phones hold "the privacies of
life." 573 U.S. at ___, 134 S.Ct. at 2494-95, 189
L.Ed.2d at 452. Brown's expectation that this privacy
would be honored-at least initially-is supported by the fact
he put a lock on the screen of the phone. As the court of
appeals in this case stated, "the act of locking the
container . . . demonstrates to a law enforcement officer
that the owner of the container started out with an
expectation of privacy in the container's contents."
414 S.C. at 27, 776 S.E.2d at 924. At least until the time of
the burglary, therefore, Brown enjoyed Fourth Amendment
protection for the digital information stored on his phone.
we can presume Brown did not intentionally leave his cell
phone at the scene of the crime, for he must have known that
doing so would lead to the discovery that he was the burglar.
Thus, it is unlikely a police officer would believe the mere
act of leaving the phone at the scene of the crime was an
intentional relinquishment of his privacy. For at least a
short period of time after the crime, therefore, the phone
might not yet have been abandoned. However, when a person
loses something of value-whether valuable because it is worth
money or because it holds privacies- the person who lost it
will normally begin to look for the item. In this case, the
phone sat in the evidence locker at the police station for
six days. The record contains no evidence Brown did anything
during this time to try to recover his phone. While Brown
might have taken action to protect his privacy before he left
it at the victim's condominium, there is no evidence he
did anything after that to retain the privacy he previously
had in the phone's digital contents. There is no evidence
he tried to call the phone to see if someone would answer.
There is no evidence he attempted to text the phone in hopes
the text would show on the screen, perhaps with an alternate
number where Brown could be reached, or perhaps even with a
message that he did not relinquish his privacy in the
contents of the ...