Given the number of iPhones sold, it is no surprise to see a case like People v. Schutter.
The Defendant had left his iPhone in a locked convenient store bathroom. When the Defendant went back to the store to get the phone, the store clerk refused, because the clerk was “busy.” The Defendant left after being told to come back later. Within an hour, a police officer went to the store. The clerk turned the phone over to the police officer, who had been told the above facts. People v. Schutter, 2011 Colo. LEXIS 246, at *9-11 (Colo. Mar. 28, 2011).
The District Court suppressed the evidence found on the warrantless search of the iPhone because 1) the Defendant did not abandon the phone and 2) even if the phone had been lost or mislaid, the police violated the Defendant’s reasonable expectation of privacy of his phone’s contents. Schutter, at *2-3. The State filed an interlocutory appeal.
The Colorado Supreme Court affirmed the District Court, because the iPhone was not abandoned, lost or mislaid under the facts of the case, thus the warrantless search violated the 4th Amendment. Id.
The Colorado Supreme Court did not wade into the swamp of when a police office could conduct a warrantless search of property that had been lost or mislaid. Schutter, at *8. The Supreme Court focused on the facts of the case, finding the following:
Under these circumstances, the officer had no grounds to believe the property’s safe return required the discovery of any further information. Assuming, without deciding, that the Fourth Amendment could tolerate, under some set of circumstances, some kind of warrantless examination of a cell phone to ascertain how it might be returned to its owner, this case cannot present that set of circumstances.
Schutter, at *9-10.
There was one dissenting opinion, taking issue with the Defendant not asking the clerk when the clerk would not be busy, setting a time to return for the phone or leaving his contact information. Schutter, at *11. As such, this one justice would find the phone abandoned. Schutter, at *12.
Bow Tie Thoughts
A 32 Gigabyte iPhone can hold a lot of data, be it in the form of contacts, photos, text messages or Apps. Moreover, there are millions of Smartphones on the market. It is a guarantee that Courts will address both civil and criminal issues involving these highly portable and sometimes easy to leave behind devices.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.