Can a lost phone be searched without consent? 9th Circuit will consider
An appeals court will consider whether a phone left in an evidence room can be searched without consent. (Photo illustration by Sara Wadford/ABA Journal)
In December 2017, Dontae Hunt was walking through the parking lot of an apartment building in Eugene, Oregon, when he was shot five times by a gunman and then rushed to the hospital by his girlfriend. Immediately after being shot, Hunt dropped a black iPhone, which was later found and confiscated by local police.
The phone was stored in evidence for 25 months until federal Drug Enforcement Administration officers obtained a warrant for the device and its contents. They cracked the password and used data found on the iPhone to convict Hunt in 2022 of drug trafficking charges.
With support from the American Civil Liberties Union and the Electronic Privacy Information Center, Hunt is appealing the federal verdict. The district court had held that because Hunt essentially abandoned the phone, the data on it could be accessed by police—even without a warrant. An appeal of United States v. Hunt has been filed in the San Francisco-based 9th U.S. Circuit Court of Appeals at San Francisco.
Privacy rights advocates believe police violated Hunt’s Fourth Amendment protections against unreasonable search and seizure; the government contends the phone is abandoned property and that previous court rulings have affirmed that defendants have no standing to object to a law enforcement search of items they have voluntarily abandoned.
“The real question is: Does someone expect that because they lost their phone that anyone who finds it—including the police—should be able to look through all their photo albums, their emails, their messages or the entire history of where they’ve been if they have location tracking on?” says Tom McBrien, counsel for the Electronic Privacy Information Center, which filed an amicus brief in the case along with the ACLU of Oregon. “We think it’s pretty obvious that people have a reasonable expectation of privacy for all that stuff.”
Larry James. (Photo by Andrew Collings)Larry James, general counsel for the National Fraternal Order of Police and a partner at Amundsen Davis in Columbus, Ohio, believes the right to the privacy of data on phones isn’t absolute.
“There are circumstances where phones will be and have been abandoned that would not necessitate a warrant,” James says.
Hunt is closely related to the unanimous 2014 U.S. Supreme Court ruling Riley v. California, which found that when police conduct an arrest, they can search a suspect’s belongings but cannot access the contents of an individual’s cellphone without a warrant. Writing for the court, Chief Justice John Roberts noted that modern smartphones are an exception to routine searches of a wallet or a pack of cigarettes because they hold an immense quantity of information, and as such, allow authorities to re-create “the sum of an individual’s private life.”
“Modern cellphones are not just another technological convenience,” Roberts wrote in Riley. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”
There are nuances to Hunt’s case that complicate the issues. Federal agents actually did obtain a warrant for the iPhone. But the length of time it was held in evidence, plus the fact that Hunt never tried to reclaim the phone, led U.S. District Judge Karin Immergut for the District of Oregon to conclude Hunt had effectively abandoned it.
In their appeal, attorneys for the defense argued that didn’t matter.
“Hunt had standing to challenge the prolonged seizure,” they wrote, “because the abandonment doctrine does not apply to a cellphone’s digital contents.”
Abandonment doctrine
The abandonment doctrine, developed in a series of rulings in the mid-to-late-20th century, holds that police don’t need a warrant to search items someone has discarded or left in public-facing trash. In its 1988 ruling in California v. Greenwood, the Supreme Court found that police who didn’t have enough evidence to obtain a warrant to search a suspect’s home could pick through his garbage left on the curb, concluding that trash is “readily accessible to animals, children, scavengers, snoops and other members of the public.”
Stephen Saltzburg, a professor at the George Washington University Law School and a past chair of the American Bar Association’s Criminal Justice Section, says how long police held the phone and whether Hunt no longer wanted the phone are relevant questions.
Hunt’s “phone gets picked up by the police. He’s been shot, he’s injured, but he makes no effort to get that phone back. Instead, he buys a new phone which has the same phone number on it. That might suggest to a court that he didn’t care anymore about the phone,” Saltzburg says.
But Saltzburg adds that police can’t hold evidence indefinitely.
“It doesn’t appear that anybody told him they still had his phone and that he could ask to get it back,” he says.
The defense in its brief argues that Hunt did not abandon the phone’s digital data.
“A cellphone allows its owner to digitally access private information on the cloud much like a key allows a homeowner to physically access the privacies of their home,” the brief says.
A study by the device insurance company Asurion estimates that 4 million phones were lost or stolen in the U.S. in 2023. That makes it critical that courts clarify that the abandonment doctrine shouldn’t apply to phones, says Nathan Freed Wessler, deputy director of the ACLU’s Speech, Privacy and Technology Project.
“Nobody expects that by losing a small plastic and metal object from their pocket, they are voluntarily handing over to the police a complete record of their communications with family members and friends and co-workers; a complete set of intimate photos with a loved one or a spouse or a partner; family photos, videos or their financial records,” the New York City lawyer says.
James says he isn’t certain this instance in Hunt amounts to abandonment. “The question is: What’s the protocol for [the authorities] notifying an individual that they have these possessions of theirs?”
In this case, James isn’t sure authorities really needed the phone. “Can you corroborate it? Can you get a conviction through other means?”
Saltzburg notes that lower courts haven’t firmly addressed the issue of whether abandonment applies to phones.
“What’s the standard going to be?” he asks. “Should we say you can’t inadvertently open up your data and that abandonment doesn’t necessarily apply in the same way to a smartphone as it would to other property? They could find support for that in Riley.”
Tech and the Fourth Amendment
Hunt is part of a string of contemporary cases grappling with what the Fourth Amendment’s protections from unreasonable search and seizure mean in an age of rapidly advancing technology.
In its amicus brief for Hunt, the Electronic Privacy Information Center and the ACLU write that the Supreme Court has repeatedly revised older doctrines when new technologies threaten to erode Fourth Amendment rights. The brief observes that the court, in its 2001 ruling in Kyllo v. United States, was concerned that if police were allowed, without a warrant, to use thermal imaging technology to observe a home where they suspected marijuana was being grown, it would begin to “shrink the realm of guaranteed privacy” under the Fourth Amendment.
“The Supreme Court has made very clear in a series of decisions over the past couple decades that it is taking very seriously the need to ensure robust interpretation of the Fourth Amendment in the digital age,” Wessler says.
In the 2012 decision United States v. Jones, for instance, the Supreme Court ruled that police cannot place a GPS tracker on a suspect’s car without a warrant. The Supreme Court also clarified in its 2018 ruling Carpenter v. United States that police need probable cause—and a warrant—before gaining access to a person’s cellphone location history.
And in the case United States v. Morton, courts grappled with how broad a warrant can be when searching a suspect’s cellphone. The Texas Highway Patrol got a warrant to search Brian Morton’s cellphone photographs based only on evidence of personal drug possession; but child sexual abuse images were found, and Morton was convicted. In 2021, a three-judge panel of the 5th U.S. Circuit Court of Appeals at New Orleans vacated that conviction, finding the warrant to search the photos was “objectively unreasonable.” But in 2022, an en banc 5th Circuit panel affirmed the district court’s conviction, saying the officers acted in good faith in relying on the judge’s decision to issue the warrants.
Still, James is convinced that even if the 9th Circuit rules in Hunt’s favor and forbids the use of evidence found on his iPhone, there could be instances where a suspect truly gives up a phone or tosses it aside.
“I think we can all find scenarios where we would agree that a phone is abandoned,” he says.
Wessler and the ACLU disagree. Their position is that police never have a green light to search a phone they’ve found.
“It’s really important that the court gets it right here,” Wessler says, “so that police know that they don’t have an unfettered privilege to just poke around in people’s phones at their whim.”
This story was originally published in the December 2024-January 2025 issue of the ABA Journal under the headline: “Private Calls: 9th Circuit to consider whether phone left in evidence room can be searched without consent.”
