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State v. Brown

Supreme Court of South Carolina

June 13, 2018

The State, Respondent,
v.
Lamar Sequan Brown, Petitioner. Appellate Case No. 2015-002360

          Heard March 28, 2018

         ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

          Appeal from Charleston County J. C. Nicholson Jr., Circuit Court Judge

          Appellate Defender David Alexander, of Columbia, for Petitioner.

          Attorney General Alan McCrory Wilson, Assistant Attorney General William M. Blitch Jr., both of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston; all for Respondent.

          FEW, JUSTICE

         In this 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.

         I. Facts and Procedural History

         On 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.

         The 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 cell phone.

         Detective 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.

         At 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.

         II. Analysis

         The 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.

         Brown 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)).

         We 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.[1] 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.

         Turning 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).

         We 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.

         Additionally, 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 ...


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