HAMPTON, Va. — Let’s say you throw your old cellphone in the trash — but neglect to wipe its contents.
Can a police officer who finds the phone during an investigation start scrolling through it — and access a trove of information about your life — without first getting a search warrant?
That’s a question attorneys want the U.S. Supreme Court to examine in a case that originated in Hampton. Though the case stems from a 2018 shooting in which a man left his cellphone inside a Hampton Towne Center restaurant before fleeing, it could have far broader implications.
Police have long been allowed to conduct warrantless searches of the person and immediate surroundings of people being arrested. But because of all the personal information contained in cellphones, the Supreme Court carved out an exception — ruling in 2014 that officers must get warrants to search cellphones seized during arrests.
Yet police are still allowed to search “abandoned” cellphones without warrants — just like they can comb through someone’s trash cans or trace guns tossed out car windows.
“If you throw your phone away or discard it or trade it in, police can do whatever they want — they can access your emails, your bank records, your phone calls, text messages, photos — everything is fair game that’s on that phone,” said Brandon Boxler, a Richmond lawyer who filed a petition on June 2 with Hampton attorney Charles Haden asking the Supreme Court to hear the case.
Because mobile phones contain so much about people’s lives, privacy advocates maintain that warrants should always be required for cellphones — even those some deemed abandoned.
“The argument isn’t that the digital contents can never be searched or that they’re always off limits,” Boxler said. “It’s simply that the police just have to get a warrant.”
The Hampton shooting
The case stems from a nonfatal shooting outside a Hampton restaurant on Oct. 7, 2018.
Court records, which detail the incident and investigation, say Antonio Daron Futrell had just left a restaurant at Hampton Towne Center, Catch N Release Seafood Bar and Grill, when he realized he left his cellphone inside.
But it was past closing time, and restaurant employees wouldn’t let him back in. Futrell quickly became surly with a waitress and security guard before a friend ran to their car to get a gun. Futrell fired at the security guard, who fired back before Futrell and the friend sped away. No one was hit.
Police found Futrell’s phone in the restaurant. The next morning, Hampton Police Detective Steve Rodey opened the device — which wasn’t password protected — without a warrant and found its phone number in the settings, saying he didn’t look through the rest of the phone.
Rodey plugged the phone number into a database of police reports — quickly finding Futrell’s picture and past contacts with police. The detective showed a photo spread to the security guard, who tabbed Futrell as the gunman.
Futrell’s attorney, Timothy Clancy, contended at an evidence suppression hearing that the warrantless search was illegal because his client never abandoned the phone. In fact, the lawyer said, Futrell’s attempt to get the phone back is what caused the argument.
But Hampton Circuit Court Judge Bonnie L. Jones agreed with prosecutors that Futrell had abandoned the device.
“The problem here is that once he made the decision to leave, didn’t come back, didn’t check with anybody to try to get the phone, then he had abandoned the interest in the phone,” she said at the 2019 hearing.
Futrell entered a “conditional guilty plea” to malicious wounding and three gun charges — under a deal that allowed him to continue to challenge his convictions. He was sentenced to five years behind bars and is slated for release next month.
The Virginia Court of Appeals later upheld Jones’ ruling, saying Futrell “relinquished” his privacy interests in the phone — and all its contents — “when he decided to flee.” In March, the Virginia Supreme Court allowed that ruling to stand without a hearing.
Evolving case law
Joshua Jenkins, the prosecutor who tried the case in Hampton Circuit Court, said years of case law establish there’s no expectation of privacy “for things people leave behind.”
“People drop a box on the ground and take off running or drop a gun and run away, they lose the right to privacy in that thing,” Jenkins said. “If you put an item in your trash can, you have abandoned it. If you give it to a recycling company, you’ve abandoned it ... I don’t think there should be a special rule for phones.”
Jenkins, now a Norfolk prosecutor, said if people want to throw out their phones, “there are ways to securely erase it.”
But Boxler maintains that the many variations — and divided opinions — in court rulings on the issue make the issue ripe for high court review.
On Thursday, the U.S. Supreme Court asked the Virginia Attorney General’s Office to respond to the petition, a development Boxler said was notable. While it is still a longshot the case will be heard — the Supreme Court takes up only 1% of the petitions submitted each year — Boxler said the request for a response typically raises the odds to about 6%.
Case law regarding police access to cellphones has been challenged broadly by privacy advocates over the past decade as smartphones and technology have evolved to make them a ubiquitous feature of modern life.
The Fourth Amendment protects people and their property against “unreasonable searches and seizures.” But warrants can be issued to search them based on probable cause.
The Supreme Court has held since 1924 that warrants are unnecessary if an item is abandoned, beginning with a bottle of moonshine tossed by a fleeing suspect in the 1920s to guns and drugs tossed today.
In the landmark Riley v. California ruling in 2014 — which held that the warrantless search of a cellphone during an arrest is unconstitutional — the Supreme Court said the storage capacity of modern cellphones raises much greater privacy concerns than searching wallets or purses.
Cellphones “are such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,” the court wrote in the unanimous opinion.
“Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple — get a warrant,” the ruling concluded.
But abandoned phones are still at issue, and Boxler was involved in a Maryland case in which he unsuccessfully sought to get the Supreme Court to weigh in.
In that incident, a gunman carjacked a vehicle from a Baltimore mall in 2015, then crashed through the National Security Agency’s gates in Fort Meade during a chase three days later. Federal agents found a phone on the ground nearby, opened it without a warrant, and used it to help identify the man they ultimately arrested.
Though courts around the country have said cellphones can be declared abandoned, many of these decisions were heavily divided, Boxler wrote. In Florida, an appeals court said officers must get a warrant to search the contents of an abandoned password-protected phone, but not if there’s no such protection.
Boxler cites statistics that fewer than half of Americans protect their cellphones with passwords — and that treating them differently doesn’t make sense.
“Cellphones are intrinsically private,” said a court ruling cited in the petition. “The failure to password protect them is not an invitation for others to snoop.”
The attorney also points out that cellphones are increasingly linked to cloud storage, which adds to their storage capacity many times over.
“Cellphones aren’t going away,” Boxler said. “Police search them all the time and everybody needs more guidance on this. Law enforcement needs it. Attorneys need it. Lower courts need it. Everybody needs guidance. I think the court’s going to have to weigh in at some point. Hopefully it’s this case.”
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