State v. Samalia

UUpreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, ) No. 91532-6
)
v. ) En Bane
)
ADRIAN SUTLEJ SAMALIA, )
) Filed JUl 2 8 2016
Petitioner. )
)

WIGGINS, J.-Petitioner Adrian Sutlej Samalia fled on foot from a stolen

vehicle during a lawful traffic stop, leaving his cell phone behind in the vehicle. After

Samalia successfully escaped, the police searched the cell phone without a warrant

and made contact with one of the numbers stored in the cell phone. That contact led

to Samalia's identification as the owner of the phone and driver of the stolen vehicle.

The State used this evidence against Samalia at trial. Samalia contends that his right

to be free from unreasonable searches was violated when the State introduced the

identification evidence derived from the search of his cell phone. We hold that

although Samalia initially had a constitutionally protected privacy interest in the cell

phone and its data, he abandoned that interest when he voluntarily left the cell phone

in a stolen vehicle while fleeing from a lawful traffic stop. Accordingly, we affirm the

Court of Appeals.
State v. Samalia (Adrian Sutlej), No. 91532-6

FACTS AND PROCEDURAL HISTORY

Yakima Police Officer Ryan Yates observed what he believed to be a stolen

vehicle while on patrol. He confirmed with dispatch that the vehicle was stolen and

began to follow it. Eventually, the driver stopped, got out of the vehicle, and faced

Officer Yates. Officer Yates gave the driver various commands, but the driver did not

obey and ran away. Officer Yates attempted to chase after the driver, but the driver

successfully escaped.

Failing to apprehend the driver, Officer Yates returned to the stolen vehicle and

began to search it without a warrant. Officer Yates found a cell phone somewhere

near the vehicle's center console, but he did not know to whom it belonged. He then

began calling some of the contacts listed in the cell phone.

From the cell phone's contacts, Officer Yates called Deylene Telles. He told

Telles that he had found a cell phone and wanted to return it to its owner. Telles agreed

to meet at a designated location. When Telles arrived at that location, Yakima Police

Sergeant Henne immediately arrested her. Sergeant Henne seized Telles' cell phone

and used the cell phone recovered by Officer Yates to call it. Telles' cell phone

displayed Samalia's name and photo, identifying him as the caller. Officer Yates then

looked up Samalia's photo in a law enforcement database and identified Samalia as

the driver who fled from the stolen vehicle.

On these facts, the State charged Samalia with possession of a stolen vehicle.

Samalia moved to suppress the cell phone evidence, arguing that the officers violated

his constitutional rights when they seized and searched his cell phone with neither a

warrant nor a valid exception to the warrant requirement. The State responded that

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State v. Samalia (Adrian Sutlej), No. 91532-6

the warrantless search was valid under the abandonment doctrine. The trial court

denied Samalia's motion, agreeing with the State that no warrant was required under

the abandonment doctrine. The trial court held that Samalia voluntarily abandoned

any privacy interest that he had in the cell phone by leaving it in the stolen vehicle,

which he also voluntarily abandoned, while fleeing from Office Yates. After denying

Samalia's suppression motion and subsequent motion for reconsideration, the trial

court found Samalia guilty as charged in a bench trial.

Samalia appealed, and the Court of Appeals Division Three affirmed the trial

court in a split decision. State v. Sa mafia, 186 Wn. App. 224, 226, 344 P.3d 722 (2015).

The Court of Appeals affirmed for three reasons: (1) the abandonment doctrine

applied, (2) the exigent circumstances doctrine applied, (3) and the attenuation

doctrine applied. Samalia then sought this court's discretionary review, which we

granted.

ANALYSIS

The issue before us is whether Samalia had a constitutionally protected privacy

interest in his cell phone and, if so, whether the police were justified in searching the

cell phone without a warrant. We conclude that Samalia did initially have a

constitutionally protected privacy interest in his cell phone under the Washington

Constitution, but he lost that interest when he "voluntarily abandoned the cell phone

located in the vehicle" while fleeing from police. Clerk's Papers at 31 (Finding of Fact

IV); WASH. CONST. art. I, § 7.

Washington's Constitution states that "[n]o person shall be disturbed in his

private affairs ... without authority of law." WASH. CONST. art. I,§ 7. Article I, section

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State v. Sama/ia (Adrian Sutlej), No. 91532-6

7 encompasses the privacy expectations protected by the Fourth Amendment to the

United States Constitution and, in some cases, may provide greater protection than

the Fourth Amendment because its protections are not confined to the subjective

privacy expectations of citizens. State v. Myrick, 102 Wn.2d 506, 510-11, 688 P.2d

151 (1984 ). Under article I, section 7-in its protection of "private affairs"-"a search

occurs when the government disturbs 'those privacy interests which citizens of this

state have held, and should be entitled to hold, safe from government trespass absent

a warrant."' State v. Hinton, 179 Wn.2d 862, 868, 319 P.3d 9 (2014) (quoting Myrick,

102 Wn.2d at 511 )). "The 'authority of law' required by article I, section 7 [to search or

seize an item classified as a 'private affair'] is a valid warrant unless the State shows

that a search ... falls within one of the jealously guarded and carefully drawn

exceptions to the warrant requirement." /d. at 868-69.

Our private affairs analysis leads to the conclusion in Part II of this opinion that

cell phones, including the information that they contain, are "private affairs" under

article I, section 7. As a private affair, the police may not search a cell phone without

a warrant or applicable warrant exception.

However, citizens may lose their constitutional protections in a private affair

under the abandonment doctrine. In Part Ill, we conclude that the abandonment

doctrine applies to cell phones, and in Part IV, we affirm the trial court's conclusion

that Samalia abandoned his cell phone. Finally, in Part V, we reverse the Court of

Appeals rulings on the exigent circumstances and attenuation doctrines.

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State v. Samalia (Adrian Sutlej), No. 91532-6

I. Standard of review

We review constitutional issues de novo. State v. Gresham, 173 Wn.2d 405,

419, 269 P.3d 207 (2012). When a trial court denies a motion to suppress, we also

review that court's conclusions of law de novo. State v. Winterstein, 167 Wn.2d 620,

628, 220 P.3d 1226 (2009). Whether Samalia had and then abandoned a privacy

interest in his cell phone and its data is a mixed question of law and fact because we

are required to apply legal principles to a particularized set of factual circumstances.

See In re Det. of Anderson, 166 Wn.2d 543, 555, 211 P.3d 994 (2009); Erwin v. Cotter

Health Ctrs., 161 Wn.2d 676, 687, 167 P.3d 1112 (2007). "Analytically, resolving a

mixed question of law and fact requires establishing the relevant facts, determining

the applicable law, and then applying that law to the facts." Tapper v. Emp't Sec. Dep't,

122 Wn.2d 397, 403, 858 P.2d 494 (1993). For mixed questions of law and fact,

unchallenged factual findings are verities on appeal and we review application of

those facts to the law de novo. In re Det. of Anderson, 166 Wn.2d at 555.

II. Cell phones and the information they contain are "private affairs" under article
I, section 7 of the Washington Constitution

We hold that cell phones and the information contained therein are private

affairs because they may contain intimate details about individuals' lives, which we

have previously held are protected under article I, section 7. In determining whether

something is a private affair (meaning "those privacy interests which citizens of this

state have held, and should be entitled to hold, safe from government trespass absent

a warrant," see Myrick, 102 Wn.2d at 511), we consider both "the nature and extent

of the information which may be obtained as a result of the governmental conduct"

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State v. Samalia (Adrian Sutlej), No. 91532-6

and the historical protection afforded to the interest asserted. 1 State v. Miles, 160

Wn.2d 236, 244, 156 P.3d 864 (2007); see also Hinton, 179 Wn.2d at 868-69; State

v. Jorden, 160 Wn.2d 121, 126, 156 P.3d 893 (2007). 2

A Cell phones may contain vast amounts of intimate, personal information
For the private affairs analysis under article I, section 7, we first "look at the

'nature and extent of the information which may be obtained as a result of the

government conduct."' Hinton, 179 Wn.2d at 869 (quoting Miles, 160 Wn.2d at 244).

A government search of a cell phone has the potential to reveal a vast amount of

personal information. The United States Supreme Court recently described the

intimate and personal details that cell phones may contain in Riley v. California, _

U.S._, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014 ). The Riley Court's detailed analysis

on the nature and extent of private information that cell phones may contain is

persuasive for our private affairs analysis.

1 We also consider laws supporting the interest asserted, including statutes and analogous
case law. State v. Athan, 160 Wn.2d 354, 366, 158 P.3d 27 (2007). Finally, we look to the
reasonableness of the interest asserted. /d. (voluntary exposure to the public can negate an
asserted privacy interest); State v. Day, 161 Wn.2d 889, 894, 168 P.3d 1265 (2007) (evidence
in open or plain view will not be excluded).
2 Under the Fourth Amendment, the search warrant requirement attaches to items in which
individuals have a reasonable expectation of privacy. This is analyzed under two questions:
(1) whether the individual, by his or her conduct, has exhibited an actual (subjective)
expectation of privacy and (2) whether the individual's subjective expectation of privacy is
"'one that society is prepared to recognize as "reasonable.""' Smith v. Maryland, 442 U.S.
735, 739-41, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (quoting Katz v. United States, 389 U.S.
349, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (Harlan, J., concurring)). However, we do not reach
the question of whether individuals have privacy interests in their cell phones under the Fourth
Amendment because we conclude that they do under the more protective standard of article
I, section 7. See State v. Patton, 167 Wn.2d 379, 396 n.9, 219 P.3d 651 (2009) (stating that
we do not reach Fourth Amendment arguments when the article I, section 7 provides
"independent and adequate state grounds" to resolve the issue).

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State v. Samalia (Adrian Sutlej), No. 91532-6

The Riley Court observed that "many [cell phones] are in fact minicomputers

that also happen to have the capacity to be used as a telephone. They could just as

easily be called cameras, video players, rolodexes, calendars, tape recorders,

libraries, diaries, albums, televisions, maps, or newspapers." /d. at 2489. The Court

then continued on the ramifications of the large data storage capacities of cell phones:

a cell phone typically contains far more personal information than a person would

normally carry in written form; searching a cell phone discloses prior searches for

information by the cell phone owner, suggesting private facts about the owner; and

cell phone applications, or apps, collect information on specific subjects.

/d. at 2489-90.

As described in Riley, cell phones may contain many intimate details of a

person's life. This is certainly sufficient to satisfy the first step of the private affairs

inquiry-that the search may reveal intimate or discrete details of a person's life. We

turn then to the second step of the inquiry-whether we have historically protected

this information under article I, section 7.

B. We have historically protected the types of information now contained in cell
phones as "private affairs" under article /, section 7

Cell phones store information that we have previously held to be protected

under article I, section 7 as private affairs. Our historical treatment of these types of

information supports finding that that cell phones and their contents are private affairs.

For example, cell phones track call logs. In State v. Gun wall, 106 Wn.2d 54, 67-69,

720 P.2d 808 (1986), we held that a warrant is required under article I, section 7 before

the police may search telephone records of an individual that the police received from

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State v. Samalia (Adrian Sutlej), No. 91532-6

the telephone company. Cell phones track GPS (global positioning systems) data. In

State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003), we held that a warrant is

required under article I, section 7 before the police may attach a GPS device to a

citizen's vehicle. Cell phones track bank information. In Miles, 160 Wn.2d at 244-45,

we held that a warrant is required under article I, section 7 before the police may

search banking records. Cell phones can even track hotel registry information, which

we also held was a private affair under article I, section 7 in Jorden. See 160 Wn.2d

at 130.

Most recently, we recognized that text messages are private affairs. See Hinton,

179 Wn.2d at 877-78. In Hinton, we held that text messages were private affairs

because viewing the messages may expose "'a wealth of detail about (a person's]

familial, political, professional, religious, and sexual associations."' /d. at 869

(alteration in original) (quoting United States v. Jones,_ U.S._, 132 S. Ct. 945, 955,

181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring)). We also recognized that text

messages are no different from other historically protected means of communication,

especially phone calls and other electronic communications. /d. at 869-70 ("Text

messages can encompass the same intimate subjects as phone calls, sealed letters,

and other traditional forms of communication that have historically been strongly

protected under Washington law.").

Given the intimate information that individuals may keep in cell phones and our

prior case law protecting that information as a private affair, we hold that cell phones,

including the data that they contain, are "private affairs" under article I, section 7. As

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State v. Samalia (Adrian Sutlej), No. 91532-6

private affairs, police may not search cell phones without first obtaining a warrant

unless a valid exception to the warrant requirement applies.

Therefore, we hold that Samalia initially had a constitutionally protected privacy

interest in his cell phone to the extent that the officers could not have searched his

cell phone without a search warrant or the application of an exception to the warrant

requirement. But as we next discuss, Samalia abandoned his privacy interest in his

cell phone when he left it in a stolen vehicle while fleeing a lawful traffic stop.

Ill. The abandonment doctrine applies to Samalia's case

Samalia argues that the abandonment doctrine should not apply to cell phones

or that there should be at least a heightened showing of intent to abandon. We hold

that the abandonment doctrine applies to cell phones and that the trial court

appropriately found that Samalia abandoned his cell phone.

Under the common law, a person loses normal privacy interests in property

upon abandonment. See State v. Kealey, 80 Wn. App. 162, 170-72, 907 P.2d 319

(1995). The abandonment doctrine is not rooted in any obligation by law enforcement

to find the owner of property. See State v. Evans, 159 Wn.2d 402, 408, 150 P.3d 105

(2007) ("'[L]aw enforcement officers may retrieve and search voluntarily abandoned

property without implicating an individual's rights under the Fourth Amendment or

under article I, section 7 of our state constitution."' (quoting State v. Reynolds, 144

Wn.2d 282, 287, 27 P.3d 200 (2001 ))). In this sense, voluntarily abandoned property

is different from lost or mislaid property, in which the owner maintains a privacy

interest in the property and the finder may have an obligation as a bailee to seek out

the owner to return the property. Kealey, 80 Wn. App. at 171-73. Thus, when an

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State v. Samalia (Adrian Sutlej), No. 91532-6

individual flees from law enforcement and leaves a cell phone behind in a stolen

vehicle, a trial court may find that the cell phone is no less abandoned than any other

item that was also left in the stolen vehicle.

Based on the amount of private information that cell phones may hold, Samalia

argues that article I, section 7 requires that cell phones either be excluded from the

abandonment doctrine or that we should require at least a heightened showing of

intent to abandon. 3 These arguments rely on Hinton and Riley as examples of courts'

limitations on the government's authority to search cell phones under an exception to

the warrant requirement However, Riley and Hinton do not create exceptions for cell

phones. Rather, the Hinton and Riley rulings demonstrate that no special rules are

necessary for cell phones because they can be analyzed under established rules.

In Riley, the United States Supreme Court held that the justifications for the

"search incident to arrest" exception to the warrant requirement are not implicated in

cell phone searches. 134 S. Ct. at 2494. Specifically in Riley, police arrested an

individual and, without a warrant, searched a cell phone that they found in the

individual's pants. /d. at 2480-81. The United States Supreme Court considered

whether the warrantless search of the cell phone was valid under the "search incident

to arrest" exception to the warrant requirement /d. at 2482-84. To answer this

3 Amicus American Civil Liberties Union of Washington (ACLU-WA) argues that we should
create an exception for cell phones from the abandonment doctrine. ACLU-WA states that if
we do not create an exception, we "threaten[] the privacy of anyone who accidentally leaves
their phone in a public place-including parks, buses, and ride- or car-sharing services,"
which is "incompatible with article I, section 7." Amicus Curiae Br. of ACLU-WA at 10. ACLU-
WA is incorrect; ACLU-WA fails to recognize the difference between abandoned property and
lost or mislaid property. See Kealey, 80 Wn. App. at 172-75. ACLU-WA's hypothetical
describes lost or mislaid property, which is not subject to the abandonment doctrine. /d.

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State v. Sama!ia (Adrian Sutlej), No. 91532-6

question, the Court clarified the reasons that justify a "search incident to arrest":

(1) officer safety and (2) preservation of evidence. /d. at 2484. Looking at the nature

of a search of a cell phone's information, the Supreme Court held that it did not fit the

reasons for the search incident arrest exception to the warrant requirement. The Court

first stated that cell phone data cannot itself be used as a weapon to harm an officer.

/d. at 2485. Second, the Court reasoned that officers could prevent the destruction of

potential evidence in the cell phone by merely seizing the cell phone and not searching

it immediately without a warrant. /d. at 2486-88. Therefore, the Court held that "the

search incident to arrest exception does not apply to cell phones." /d. at 2494.

However, the Court expressly limited its holding to the search incident to arrest

exception. See id. ("[E]ven though the search incident to arrest exception does not

apply to cell phones, other case-specific exceptions may still justify a warrantless

search of a particular phone.").

In Hinton, we analyzed whether an individual loses his or her privacy interest in

a text message by sending that message to a third party under principles of voluntary

disclosure. See 179 Wn.2d at 873-76. We held that an individual does not lose his or

her privacy expectations in a sent text message by applying established article I,

section 7 principles rather than creating a special exception for cell phones. We

reasoned that "incidental exposure of private information in the course of everyday life

is distinct from other kinds of voluntary disclosure that extinguish privacy interests

under article I, section 7," and that article I, section 7, does not "require individuals to

veil their affairs in secrecy and avoid sharing information in ways that have become

an ordinary part of life." /d. at 875, 874.

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State v. Samalia (Adrian Sutlej), No. 91532-6

Neither Riley nor Hinton can be read for the proposition that the abandonment

doctrine should not apply to cell phones or should be limited in its application to cell

phones. The Riley holding that cell phones may not be searched incident to arrest

without a warrant was based on the fact that such cell phone searches do not fall into

the particular justifications for the search incident to arrest exception. Hinton was

predicated on the fact that revealing some information in one's cell phone to third

parties as a means of modern communication has become a common practice. But in

this case and for the abandonment doctrine, there has been no advancement in

technology to cause one to abandon property in stolen vehicles while attempting to

flee from police. Moreover, the rationale driving the abandonment doctrine fits cell

phone searches. 4 When an individual voluntarily abandons an item, not as a facet of

modern communication but to elude the police, that individual voluntarily exposes that

item-and all information that it may contain-to anyone who may come across it. Cell

phones are no different in this respect than for any other item; the abandonment

doctrine applies to all personal property equally.

Therefore, we decline to find an exception to the abandonment doctrine for cell

phones. We consider, then, whether the trial court properly found abandonment under

these facts.

4We do not address the use of a cell phone to access remote data or services because this
case does not present that question. We leave that issue for another day.

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State v. Samalia (Adrian Sutlej), No. 91532-6

IV. The trial court's finding that Samalia abandoned his cell phone is supported
by substantial evidence

Voluntary abandonment is an ultimate fact or conclusion based on a

combination of act and intent. Evans, 159 Wn.2d at 408. A trial court finds intent as

an inference from objective factors. /d. As a factual determination, we review a trial

court's finding of voluntary abandonment for substantial evidence. State v. O'Neill,

148 Wn.2d 564, 571, 62 P.3d 489 (2003). Determining the reasonableness of an

inference of intent from proven facts is the province of the fact finder, not the appellate

court. See State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999). In this

case, the trial court's finding that Samalia abandoned his cell phone is supported by

substantial evidence and our case law.

The trial court's finding that Samalia voluntarily abandoned his cell phone

reasonably follows from the undisputed facts of the case: Samalia was driving a stolen

vehicle, and when Samalia stopped, he got out of the vehicle and faced Officer Yates.

Then, instead of obeying Officer Yates' commands, Samalia ran away, abandoning

the vehicle and its contents. Officer Yates attempted to catch Samalia, but Samalia

escaped, and Officer Yates returned to the stolen vehicle. Inside the stolen vehicle,

Officer Yates found the cell phone. Indeed, there is nothing in the record to suggest

that Samalia protected the information on his cell phone by any security measures.

The trial court's finding of voluntary abandonment is also consistent with

Washington case law, further demonstrating that its finding is supported by substantial

evidence. Washington courts generally find voluntary abandonment when a defendant

leaves an item in a place in which the defendant has no privacy interest as an attempt

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State v. Samalia (Adrian Sutlej), No. 91532-6

to evade the police. For example, in State v. Young, a police officer noticed the

defendant in the street engaged in suspicious behavior. 86 Wn. App. 194, 197, 935

P.2d 1372 (1997) (cited with approval by Evans, 159 Wn.2d at 41 0), aff'd, 135 Wn.2d

498, 957 P.2d 681 (1998). The officer turned on his patrol lights and drove toward the

defendant. /d. As the officer approached, the defendant "walked rapidly toward some

trees, tossed 'an apparent package or something' behind a tree, walked quickly away

from the trees, and then resumed a normal walk down the sidewalk." /d. Suspecting

involvement in drug activity, the officer retrieved and immediately searched the

package. /d. at 198. The officer discovered drugs in the package and arrested the

defendant. /d. The defendant moved to suppress all evidence from the search and

arrest. /d. However, the Court of Appeals held that the search of the package did not

violate the defendant's article I, section 7 private affairs rights because the defendant

had voluntarily abandoned the package. /d. at 200-03; see also State v. Whitaker, 58

Wn. App. 851, 854-56, 795 P.2d 182 (1990) (holding that a defendant abandoned a

bottle that contained drugs when he dropped the bottle onto the ground next to himself

as he saw the police officers approaching him).

Conversely, Washington courts generally do not find voluntary abandonment if

a defendant exhibits the intent to recover the property. In Kealey, a woman

inadvertently left her purse on a couch in a store's shoe department. 80 Wn. App. at

165. A clerk found the purse and put it in a back room after opening it and smelling

marijuana. /d. Shortly after the clerk removed the purse, the woman frantically

returned to the shoe department, asked about her purse, and continued to search

throughout the store until the store closed. /d. Store employees contacted the police

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State v. Samalia (Adrian Sutlej), No. 91532-6

the next morning, and the police searched the bag without a warrant, finding drugs.

/d. at 165-66.

Upon being charged, the woman moved to suppress all evidence gathered from

the warrantless search of her purse. /d. The trial court suppressed the purse, and the

Court of Appeals affirmed, looking to the common law to determine whether the

woman voluntarily abandoned her purse or merely lost or misplaced it. 5 /d. at 171-73.

The Court of Appeals ruled that the woman did not voluntarily abandon her purse,

as demonstrated by her attempt to find the purse shortly after leaving it
where she was trying on shoes. [The woman] had no intention of
divesting herself of the purse or [she] would not have returned to retrieve
the purse or behaved so frantically in searching for it.

/d. at 173-74 (footnote omitted). Rather, the Court of Appeals held that the woman's

actions demonstrated that she mislaid her purse. /d. at 174. Because the woman did

not voluntarily abandon her purse, the purse could not be searched without a warrant.

/d.

In contrast to Kealey, the trial court reasonably inferred Samalia's intent to

abandon his cell phone by his flight from the stolen vehicle despite Officer Yates'

commands. This is unlike Kealey, where the woman's actions objectively

demonstrated her intent to retrieve her property. Further, given that the area of the

search is of critical importance, Samalia had no privacy interest in the stolen vehicle.

See State v. Zakel, 61 Wn. App. 805, 810, 812 P.2d 512 (1991 ). Samalia had no

privacy interest in the stolen vehicle because it was stolen and he fled in an attempt

5For purposes of this case, the Court of Appeals saw no distinction between "lost" or "mislaid"
property and used the terms interchangeably. Kealey, 80 Wn. App. at 171.

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State v. Samalia (Adrian Sutlej), No. 91532-6

to escape from law enforcement. Similarly in Young, the court found that the

defendant voluntarily abandoned a box by placing it in a public space to avoid law

enforcement. Accordingly, we affirm the holdings of the superior and appellate courts

that the police search of Samalia's cell phone did not violate any constitutionally

protected privacy interest.

V. The Court of Appeals erred in applying the exigent circumstances and
attenuation doctrines

We disapprove the Court of Appeals' additional reliance on the exigent

circumstances and the attenuation doctrines because the State did not raise these

doctrines at the trial court in response to Samalia's motion to suppress. "Courts should

not consider grounds to limit application of the exclusionary rule when the State at a

[motion to suppress] hearing offers no supporting facts or argument." State v. Ibarra-

Cisneros, 172 Wn.2d 880, 885, 263 P.3d 591 (2011 ).

The Court of Appeals also held that the police search of Samalia's cell phone

was too attenuated from the identification of Samalia to warrant suppression.

SamaHa, 186 Wn. App. at 230-31. Because the State argued neither the exigent

circumstances doctrine nor the attenuation doctrine at the motion to suppress hearing,

it was improper for the Court of Appeals to rule on these grounds. 6

6For the same reasons, we reject amici Washington Association of Prosecuting Attorneys'
and ACLU-WA's invitations to consider whether this search was proper under the police's
community caretaking function.

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State v. Samalia (Adrian Sutlej), No. 91532-6

CONCLUSION

We affirm Samalia's conviction on the ground that the information derived from

Officer Yates' search of Samalia's cell phone was properly admitted as evidence under

the abandonment doctrine. However, we decline to rely on the alternate grounds of

the exigent circumstance doctrine and the attenuation doctrine.

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State v. Samalia (Adrian Sutlej), No. 91532-6

WE CONCUR.

18
State v. Samalia, No. 91532-6
(Yu, J., dissenting)

No. 91532-6

YU, J. (dissenting)- "No person shall be disturbed in his private affairs, or

his home invaded, without authority oflaw." CaNST. art. I, § 7. Judicially created

doctrines that diminish the scope of a person's "private affairs" must be applied

with great care-particularly where applying such doctrines to new technology

opens intimate details of a person's life to warrantless government inspection.

That is the situation presented today.

We are asked to consider whether the common law abandonment doctrine

applies to technology that was inconceivable at the time the doctrine was

formulated-digital data accessible through a cell phone. 1 To answer this

question, we must distinguish between a cell phone as a physical object and a cell

phone as a tool for accessing digital data that may touch on virtually every detail of

1
My analysis focuses only on personal cell phones used for private purposes. Different
considerations may be presented by a government-issued cell phone intended for use by a public
employee in the scope of employment, or by a privately owned cell phone that contains public
records because it was used to conduct government business. See Nissen v. Pierce County, 183
Wn.2d 863, 873, 875, 357 P.3d 45 (2015). Such considerations are not implicated here.

I
State v. Samalia, No. 91532-6
(Yu, J., dissenting)

a person's private affairs. Drawing this distinction, I would hold that voluntarily

abandoning a cell phone does not mean that all of its digital data is automatically

open to warrantless searches by government officials looking for evidence of

criminal activity. 2 I therefore respectfully dissent.

ANALYSIS

It has long been the practice of this court to be cautious when asked to rule

on constitutional privacy protections in the face of technological advances. In

particular, common law doctrines regarding the scope of a person's private affairs

cannot be applied to new technology without careful consideration of the

doctrine's underlying justifications in light of new technologies and the practical

realities of modern life. The reasoning underlying the abandonment doctrine for

personal property generally cannot justify its application to digital data accessible

through a cell phone, even if the phone itself has been voluntarily abandoned. In

holding otherwise, the majority gives insufficient weight to the difference between

the phone itself and the digital data it contains or may access, and incentivizes

warrantless government intrusions into some of the most intimate details of a

person's life in a manner that I believe is constitutionally intolerable.

2
I agree with the majority that the search of the cell phone here cannot be justified by
exigent circumstances, attenuation, or community caretaking because the State did not raise
those justifications at the trial court level. Majority at 16.

2
State v. Samalia, No. 91532-6
(Yu, J., dissenting)

A. Common law doctrines limiting constitutional privacy protections cannot be
applied mechanically to new technology

Rapidly advancing technology makes it both more difficult and more

important to delineate the scope of a person's private affairs with care. "It would

be foolish to contend that the degree of privacy secured to citizens by the Fourth

Amendment has been entirely unaffected by the advance of technology." Kyllo v.

United States, 533 U.S. 27, 33-34, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).

Nevertheless, when applying our state constitution, "[t]his court has consistently

declined to require individuals to veil their affairs in secrecy and avoid sharing

information in ways that have become an ordinary part oflife." State v. Hinton,

179 Wn.2d 862, 874, 319 P.3d 9 (2014). "Thus, whether advanced technology

leads to diminished subjective expectations of privacy does not resolve whether use

of that technology without a warrant violates article I, section 7." State v. Jackson,

150 Wn.2d 251, 260, 76 P .3d 217 (2003) (emphasis added). Instead, our inquiry

"focuses on 'those privacy interests which citizens of this state have held, and

should be entitled to hold, safe from governmental trespass.'" Id at 259-60

(quoting State v. Myrick, 102 Wn.2d 506,511,688 P.2d 151 (1984)).

Of central importance to this inquiry is the need to specifically identify the

actual nature of the government intrusion at issue and avoid any analysis that

"strain[s] to apply analogies where they do not fit." Hinton, 179 Wn.2d at 873.

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State v. Samalia, No. 91532-6
(Yu, J., dissenting)

Thus, in the specific context of cell phone data, we have recognized that "[ w]hile

text messages have much in common with phone calls and letters, they are a

unique form of communication" and therefore held that a personal text message

remains the sender's private affair even after it has been transmitted. Id. In this

discussion, we specifically noted that "[v]iewing the contents of people's text

messages exposes a 'wealth of detail about [a person's] familial, political,

professional, religious, and sexual associations."' I d. at 869 (second alteration in

original) (quoting United States v. Jones, 565 U.S. , 132 S. Ct. 945,955, 181 L.

Ed. 2d 911 (2012) (Sotomayor, J., concurring)).

Likewise, the Supreme Court of the United States, when considering the

search incident to arrest exception to the Fourth Amendment's warrant

requirement, flatly rejected the notion that a cell phone is materially

indistinguishable from other physical items that might be found on an arrestee's

person and subjected to a warrantless search, such as a wallet, purse, or address

book: "That is like saying a ride on horseback is materially indistinguishable from

a flight to the moon." Riley v. California, 573 U.S._, 134 S. Ct. 2473, 2488,

189 L. Ed. 2d 430 (2014). The Court instead noted that

[t]he term "cell phone" is itself misleading shorthand; many of these
devices are in fact minicomputers that also happen to have the
capacity to be used as a telephone. They could just as easily be called
cameras, video players, rolodexes, calendars, tape recorders, libraries,
diaries, albums, televisions, maps, or newspapers.

4
State v. Samalia, No. 91532-6
(Yu, J., dissenting)

Id. at 2489. In addition to the extraordinary amount of information accessible

through a cell phone, the Court also drew attention to the types of information a

cell phone might contain or be used to access, including

Internet search and browsing history ... [,which] could reveal an
individual's private interests or concerns-perhaps a search for certain
symptoms of disease, coupled with frequent visits to WebMD ... [;]
[h]istoric location information ... [,which] can reconstruct
someone's specific movements down to the minute, not only around
town but also within a particular building ... [; and] "apps,"
offer[ing] a range of tools for managing detailed information about all
aspects of a person's life. There are apps for Democratic Party news
and Republican Party news; apps for alcohol, drug, and gambling
addictions; apps for sharing prayer requests; apps for tracking
pregnancy symptoms; apps for planning your budget; apps for every
conceivable hobby or pastime; apps for improving your romantic life.
There are popular apps for buying or selling just about anything, and
the records of such transactions may be accessible on the phone
indefinitely.

Id. at 2490. The Court thus gave careful consideration to the practical implications

of cell phone usage in light of the realities of modern life: "A phone not only

contains in digital form many sensitive records previously found in the home; it

also contains a broad array of private information never found in a home in any

form--unless the phone is." Id. at 2491.

Notably, however, such considerations are neither new nor unique to the

context of cell phones or the digital data they may access. In fact, both this court

and the Supreme Court of the United States have repeatedly analyzed specific new

technologies and their particular role in modern society when determining whether

5
State v. Samalia, No. 91532-6
(Yu, J., dissenting)

a particular governmental intrusion constitutes a search. See, e.g., Kyllo, 533 U.S.

at 36 (infrared thermal imaging of a home is a search, in part because "the rule we

adopt must take account of more sophisticated systems that are already in use or in

development" (emphasis added)); Katz v. United States, 389 U.S. 347, 352, 88 S.

Ct. 507, 19 L. Ed. 2d 576 (1967) (electronic recording of calls made from a public

telephone booth is a search, in part because "[t]o read the Constitution more

narrowly is to ignore the vital role that the public telephone has come to play in

private communication" (emphasis added)); Jackson, 150 Wn.2d at 262 (attaching

a global positioning system (GPS) device to a person's car is a search, in part

because "[i]n this age, vehicles are used to take people to a vast number of places

that can reveal preferences, alignments, associations, personal ails and foibles"

(emphasis added)); State v. Young, 123 Wn.2d 173, 184, 867 P.2d 593 (1994)

(infrared thermal imaging of a home is a search, in part because "our legal right to

privacy should reflect thoughtful and purposeful choices rather than simply mirror

the current state of the commercial technology industry" (emphasis added)); State

v. Boland, 115 Wn.2d 571, 576, 800 P.2d 1112 (1990) (going through a person's

garbage after it had been left outside for collection is a search, in part because "[i]t

would be improper to require that in order to maintain a reasonable expectation of

privacy in one's trash that the owner must forego use of ordinary methods of trash

collection" (emphasis added)); State v. Gunwall, 106 Wn.2d 54, 67, 720 P.2d 808

6
State v. Samalia, No. 91532-6
(Yu, J., dissenting)

(1986) (obtaining a person's landline telephone records is a search, in part because

the telephone "'is a personal and business necessity indispensable to one's ability

to effectively communicate in today 's complex society"' (emphasis added)

(quoting People v. Sporleder, 666 P.2d 135, 141 (Colo. 1983))).

It is thus clear that when confronted with new technology, including digital

data accessible through a cell phone, we may not employ a "mechanical

application" of common law doctrines that limit constitutional protections against

warrantless searches. Riley, 134 S. Ct at 2484. Rather, assuming the merits of the

common law doctrine at issue generally, "any extension ofthat reasoning to digital

data has to rest on its own bottom." Id. at 2489. While I agree with the majority

that the abandonment of the phone as a physical. object is not itself"a facet of

modern communication," majority at 12, the amount and nature of information

that may be recovered from a cell phone certainly is, and that is what the court

must consider when applying preexisting common law doctrines to new

technology. See, e.g., Riley, 134 S. Ct. at 2485 (rejecting a mechanical application

of the search incident to arrest exception to cell phone data because unlike ordinary

physical objects, cell phones "place vast quantities of personal information literally

in the hands of individuals"); State v. Miles, 160 Wn.2d 236,244, 156 P.3d 864

(2007) (our focus is "on the nature and extent ofthe information which may be

obtained").

7
State v. Samalia, No. 91532-6
(Yu, J ., dissenting)

B. The abandonment doctrine for personal property generally

This court has adopted the common law abandonment doctrine, which

provides that "[n]eeding neither a warrant nor probable cause, law enforcement

officers may retrieve and search voluntarily abandoned property without

implicating an individual's rights under the Fourth Amendment or under article I,

section 7 of our state constitution." State v. Reynolds, 144 Wn.2d 282, 287, 27

P.3d 200 (2001). The abandonment doctrine is premised on the notion that

"'where one abandons property, he is said to bring his right of privacy therein to an

end, and may not later complain about its subsequent seizure and use in evidence

against him."' 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE

FOURTH AMENDMENT§ 2.6(b), at 871 (5th ed. 2012) (quoting Edward G. Mascolo,

The Role ofAbandonment in the Law of Search and Seizure: An Application of

Misdirected Emphasis, 20 BUFF. L. REv. 399, 400-01 (1971)).

Viewed through this lens, the abandonment doctrine goes to the threshold

issue of"when a search is not a search," Kyllo, 533 U.S. at 32, because a "search"

requires government intrusion into a person's "private affairs" within the meaning

of article I, section 7, or an invasion of a person's "reasonable expectation of

privacy" within the meaning of the Fourth Amendment. Hinton, 179 Wn.2d at

868. Digital data accessible through cell phones are certainly private affairs in

which a person has a reasonable expectation of privacy, and are thus entitled to

8
State v. Sama/ia, No. 91532-6
(Yu, J., dissenting)

constitutional protection. Majority at 5-9. The question presented in this case is

whether such data remain a person's private affairs if the cell phone itself has been

voluntarily abandoned. 3

C. Digital cell phone data remains a private affair, even ifthe cell phone itself
has been voluntarily abandoned

"To determine whether governmental conduct intrudes on a private affair,

we look at the 'nature and extent of the information which may be obtained as a

result of the government conduct' and at the historical treatment of the interest

asserted." Hinton, 179 Wn.2d at 869 (quoting Miles, 160 Wn.2d at 244). The

nature and extent of the information that may be obtained through a cell phone is

breathtaking, and differs in both quantity and quality from the type of information

that could be obtained from searching other types of personal property. Moreover,

and particularly in light of the facts presented by this case, the majority's decision

incentivizes warrantless government intrusions into the most intimate details of a

person's life. For these reasons, I think it is clear that the abandonment doctrine

3
For the purposes of this analysis, I assume that the trial court correctly determined the
cell phone at issue here was vohmtarily abandoned according to the criteria ordinarily applied to
personal property generally. Clerk's Papers at 31; see State v. Evans, 159 Wn.2d 402,408, !50
P .3d I 05 (2007) (defining the question of voluntary abandonment as one of "a combination of
act and intent" with the ultimate goal of determining "'whether the defendant in leaving the
property has relinquished her reasonable expectation of privacy'" (internal quotation marks
omitted) (quoting State v. Dugas, 109 Wn. App. 592, 595, 36 P.3d 577 (2001))).

9
State v. Samalia, No. 91532-6
(Yu, J., dissenting)

cannot justifiably be applied to digital data accessible through a cell phone, even

an abandoned one.

1. The nature and extent of information that may be obtained through a
government search of digital cell phone data does not diminish upon
abandonment

As applied to most ordinary types of personal property, abandoning a

privacy interest in the physical object itself is sufficient to abandon any privacy

interest in the information that may be gleaned from inspecting the object because

the major point of intrusion comes when the object is seized in the first place.

Indeed, the first Supreme Court case to recognize the abandonment doctrine, in

which the defendant dropped a jug of"moonshine whisky," rested on the holding

that "there was no seizure in the sense of the law when the officers examined the

contents of each after it had been abandoned." Hester v. United States, 265 U.S.

57, 58, 44 S. Ct. 445, 68 L. Ed. 898 (1924) (emphasis added); cf Abel v. United

States, 362 U.S. 217, 241, 80S. Ct. 683, 4 L. Ed. 2d 668 (1960) ("There can be

nothing unlawful in the Govermnent's appropriation of such abandoned property."

(emphasis added)). Any increased level of intrusion caused by examining the

abandoned property after seizing it was not apparently at issue.

In the context of cell phones, however, the level of intrusion occasioned by

an initial seizure pales in comparison to the level of intrusion occasioned by

searching the phone's digital data. In the context of searches incident to arrest, the

10
State v. Samalia, No. 91532-6
(Yu, J., dissenting)

Supreme Court noted that precedent considering such searches as applied to

physical property generally

regarded any privacy interests retained by an individual after arrest as
significantly diminished by the fact of the arrest itself. Cell phones,
however, place vast quantities of personal information literally in the
hands of individuals. A search of the information on a cell phone
bears little resemblance to the type of brief physical search considered
in [United States v.] Robinson[, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed.
2d 427 (1973)].

Riley, 134 S. Ct. at 2485. As noted above, the Court recognized that "[c]ell phones

differ in both a quantitative and a qualitative sense from other objects that might be

kept on an arrestee's person," noting the "immense storage capacity" of modern

cell phones and the fact that "certain types of data are also qualitatively different"

from those that previously existed in any physical form. I d. at 2489-90.

Therefore, the Court concluded, a search of a person's cell phone data is more akin

to '"ransacking his house for everything which may incriminate him"' than to

looking through physical items in the person's pockets at the time of arrest. Id. at

2491 (quoting United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926)).

I do not see, and the majority does not explain, why the Court's astute

observations in the context of searches incident to arrest lose their force in the

context of voluntary abandonment. In answer to the notion that a person who

voluntarily abandons a physical cell phone voluntarily abandons any privacy

interest in any ofthe voluminous data detailing potentially every aspect of that

11
State v. Samalia, No. 91532-6
(Yu, J., dissenting)

person's life, I quote the pointed words of amicus in this case: "It would be

patently absurd to suggest that abandonment of a traditional key means that

warrantless access is allowed to the house it locks; the same must be true of digital

keys to electronic information." Amicus Curiae Br. of Am. Civil Liberties Union

of Wash. at 11.

2. The majority's approach improperly incentivizes warrantless
government searches of cell phone data

I also note that the distinction between voluntarily abandoned property on

one hand, and lost or mislaid property on the other, provides little practical

protection against govermnent intrusion into a person's private affairs in the

context of digital data accessible through a cell phone. See majority at 10 n.3.

This is well illustrated by the facts presented here. The police officer in this case

testified that the reason he looked through the cell phone at issue here was "[t]o see

who the phone belonged to." Tr. of Stipulated Bench Trial (May 7, 2013) at 48.

Although the officer was "hoping that the person that ran was also the person who

owned the phone," he testified that he "couldn't recall either way" whether he

thought the phone might have belonged to the rightful owner of the stolen vehicle,

who certainly didn't voluntarily abandon her vehicle or its contents. !d. at 48-49.

But the officer maintained that his purpose was "[t]o identify the person who

owned the phone .... If that's the victim, then that's the victim." !d. at 50.

12
State v. Sama/ia, No. 91532-6
(Yu, J., dissenting)

The cell phone turned out not to be the victim's in this case, but that

provides little consolation or protection to crime victims or innocent third parties

whose cell phones are discovered in the vicinity of a crime scene. The owner of a

lost or mislaid cell phone might successfully prevent any information from the

phone from being used against him or her in a criminal case, but can neither

prevent nor undo the invasion of privacy that has already occurred when, as

happened in this case, an investigating officer looks through a person's contact list

for entries indicating an intimate or familial relation, such as "girlfriend" or

"[s]weetheart."4 Id. at 49.

In light of these facts, the majority's approach here effectively condones a

practice of assuming that cell phones discovered without their owners are

abandoned, and thus open to warrantless government searches for incriminating

evidence (or, for that matter, any other information). I cannot join such an

approach, and I do not believe our precedent allows it. 5 See Hinton, 179 Wn.2d at

881 (C. Johnson, J., concurring) ("[C]onsidering the wealth of personal and private

infonnation that is potentially stored on a cell phone, we should continue to

4
To the extent that a limited examination of a lost or mislaid cell phone for the purpose
of returning it to its owner might be allowable, that issue is not properly before us because the
State did not raise that argument at the trial court level. However, I question whether community
caretaking can justify the level of intrusion presented by the officer's actions here.
5 I also note that even for personal property generally, federal law does not presume that

discarded property has been voluntarily abandoned for Fourth Amendment purposes. Mascolo,
supra, at 403-04. Our state law governing article I, section 7 can be no less protective.

13
State v. Samalia, No. 91532-6
(Yu, J., dissenting)

recognize a rule that does not incentivize warrantless searches of cell phones.");

Jackson, 150 Wn.2d at 263-64 ("If police are not required to obtain a warrant

under article I, section 7 before attaching a GPS device to a citizen's vehicle, then

there is no limitation on the State's use of these devices on any person's vehicle,

whether criminal activity is suspected or not."); Young, 123 Wn.2d at 186 ("It is

especially troubling that the police conducted thermal investigations not only on

the defendant's home, but on the homes ofhis neighbors as well."). As is true for

all searches, I would hold that a search of digital data, even on an abandoned cell

phone, must be pursuant to a lawfully issued warrant, supported by probable cause

and subject to "detached scrutiny by a neutral magistrate" with "precise limits

established in advance by a specific court order." Katz, 389 U.S. at 356.

CONCLUSION

The people of Washington are entitled to hold safe from government

intrusion the unprecedented wealth of personal information accessible through a

cell phone, even if the phone itself has been voluntarily abandoned. If government

officials discover a cell phone and want to search its digital data for evidence of

criminal activity, they may seize and secure the cell phone to preserve any

evidence it may contain, but they must obtain a warrant before searching its digital

data. Because the police did not obtain a warrant here, the search was unlawful

and its fruits should have been suppressed. I respectfully dissent.

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State v. Sama/ia, No. 91532-6
(Yu, J., dissenting)

15