Our cell phones and laptops normally are subject to a reasonable expectation of privacy, meaning that police cannot search them without a search warrant or an applicable exception to the warrant requirement. But when a person abandons a digital device, he or she relinquishes that expectation of privacy and police may examine the device without a warrant or an exception. This post discusses when a device has been abandoned and explores several common fact patterns. Abandonment generally. “The law is well established that a person who voluntarily abandons property loses any reasonable expectation of privacy in the property and is consequently precluded from seeking to suppress evidence seized from the property.” United States v. Leshuk, 65 F.3d 1105 (4th Cir. 1995). See also State v. Williford, 239 N.C. App. 123 (2015) (applying the abandonment doctrine to uphold the retrieval and forensic examination of a cigarette butt). Whether property has been abandoned – as opposed to being lost or simply temporarily placed somewhere – is largely a question of the owner’s intent. However, like other Fourth Amendment determinations, a court’s inquiry into abandonment is not a subjective one. Rather, a court seeks “objective evidence of the intent of the person who is alleged to have abandoned the place or object.” United States v. Ferebee, 957 F.3d 406 (4th Cir. 2020) (cleaned up). Common fact patterns involving digital devices. An owner may abandon a digital device just as with any other property. However, most phone owners can attest that it is common for [...]
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