United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge.
matter is before the court on defendant Felix Chujoy's
motion to suppress evidence obtained through the December 12,
2014 seizure and subsequent search of his iPhone. ECF No.
342. Felix Chujoy argues that the warrantiess seizure of his
phone violated the Fourth Amendment to the United States
Constitution, and thus all evidence obtained by searching
that phone must be excluded as fruit of the poisonous tree.
The government contends that Felix Chujoy abandoned his
phone, and thus cannot now argue that the seizure was
wrongful. On January 4, 2017, the court held an evidentiary
hearing on Felix Chujoy's motion, during which the court
heard the testimony of Special Agent Tami Ketcham, United
States Department of Homeland Security ("Agent
Ketcham"), who effected the seizure of the phone, and
later swore and submitted an Affidavit for Search Warrant,
see United States v. Apple iPhone. Model A1549. No.
5:15-mj-052, ECF No. 1, that resulted in the evidence at
issue here. See ECF Nos. 349, 351.
reasons that follow, the court finds that Felix Chujoy had
abandoned his iPhone such that its seizure did not offend the
Fourth Amendment. Accordingly, Felix Chujoy's motion (ECF
No. 342) is DENIED.
December 12, 2014, Maria Rosalba Alvarado McTague, Felix
Chujoy's mother and codefendant, made her initial
appearance at the Harrisonburg federal courthouse. By this
point an arrest warrant for Felix Chujoy had been issued; he
had not been detained, however, because he was at Army
Reserves training in West Virginia. Accordingly, to
facilitate Felix Chujoy's detention, Agent Ketcham
contacted Felix Chujoy, told him of his mother's arrest
and court appearance, and invited him to come to the
Harrisonburg Homeland Security Investigations Office.
Instead, Felix Chujoy, after obtaining permission from his
commanding officer, went directly to the federal courthouse
to attend his mother's initial appearance. He was
accompanied by his sister and future codefendant, Gladys
Gladys and Felix Chujoy arrived at the courthouse, they were
informed by the court security officer ("CSO") that
they could not bring cell phones into the building. The CSO
instead suggested that they either return their phones to
their vehicle or, if they so chose, hide the phones under a
metal ashtray just outside the courthouse entrance. Agent
Ketcham testified that she later learned that CSOs routinely
make this suggestion to courthouse visitors who arrive with
cell phones. Gladys and Felix Chujoy left their phones under
the ashtray and entered the courthouse, at which point Felix
Chujoy was promptly arrested.
Felix Chujoy's arrest, Agent Ketcham asked him for his
cell phone. Felix Chujoy made no response. Apparently
overhearing this exchange, the CSO went outside the front
courthouse doors, retrieved the cell phones from under the
ashtray and gave them to Agent Ketcham. Agent Ketcham
testified that the CSO took this step of his own volition,
stating that neither she nor Special Agent David Liu, who
initiated the arrest, directed the CSO to find the phones or
take any action.
Gladys Chujoy called Agent Ketcham to inquire after the
phones. Agent Ketcham told her that she could pick her phone
up at the Homeland Security office, but that Felix
Chujoy's phone was being detained. Gladys Chujoy then
told Agent Ketcham that Felix Chujoy needed to call his
commanding officer in the Army Reserves to explain his
absence. Agent Ketcham offered to look the number up if Felix
Chujoy provided her the unlock code for the phone and limited
consent to find the commanding officer's phone number.
After some discussion, Felix Chujoy agreed. He provided Agent
Ketcham with the code, and she looked up the number of his
Ketcham did not search the phone at the time because she had
no warrant to do so. Nonetheless, she did not release the
phone to Felix Chujoy. Instead, in January 2015, she applied to
United States Magistrate Judge Joel C. Hoppe for a search
warrant for the phone. Paragraph 18 of the failed search
warrant application stated that the cell phone "came
into the HSI's possession in the following way: it was
seized incident to his arrest after he had abandoned the
cellphone near the front doors of the courthouse." Agent
Ketcham testified that Magistrate Judge Hoppe denied the
application because there was an insufficient nexus between
the phone and the crimes charged. Despite the denial of the
warrant to search the cell phone, Agent Ketcham did not
return it to Felix Chujoy. Rather, she retained it until
August 2015, at which time, after further investigation, a
warrant was issued to search the phone. In paragraph 21 of
the August 13, 2015 search warrant application, Agent Ketcham
averred that "p.]aw enforcement agents seized the DEVICE
incident to arrest on December 12, 2014, after he had
abandoned the cellphone near the front doors of the federal
courthouse." In re the Search of Apple iPhone,
5:15mj0052, ECF No. 1. After Magistrate Judge Hoppe executed
the August 13, 2015 warrant to search Felix Chujoy's
iPhone, it was searched by a forensic examiner.
point following the seizure of his cell phone on December 12,
2014 did Felix Chujoy file a motion under Rule 41(g) of the
Federal Rules of Criminal Procedure for return of the phone.
legal issue facing the court does not concern the eventual
forensic search of the cell phone. That was authorized by the
August 13, 2015 warrant. Rather, the issue concerns Agent
Ketcham's seizure of Felix Chujoy's cell phone on
December 12, 2014 and her warrantless retention of it.
Fourth Amendment protects "[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const,
amend. IV. "When law enforcement officials have violated
this right by unreasonably intruding on one or more of these
protected spheres of privacy, the evidence gained as a result
of that intrusion may, in appropriate cases, be ruled
inadmissible at a subsequent criminal trial." United
States v. Clark. 891 F.2d 501, 504-05 (4th Or. 1989).
The question facing the court is whether Felix Chujoy's
cell phone, left under an ashtray outside the courthouse
doors, falls within the sphere of privacy protected by the
Fourth Amendment. The Fourth Amendment does not prohibit law
enforcement officials from seizing abandoned property.
Abel v. United States. 362 U.S. 217, 241 (1960).
Abandonment under the Fourth Amendment is not the same as
abandonment "in the strict properly-right sense."
United States v. Edwards, 441 F.2d 749, 753 (5th
Cir. 1971). Rather, "[t]he proper test for abandonment
is not whether all formal properly rights have been
relinquished, but whether the complaining parly retains a
reasonable expectation of privacy in the properly alleged to
be abandoned." United States v. Stevenson. 396
F.3d 538, 546 (4th Cir. 2005) (brackets and internal
quotation marks omitted) (quoting United States v.
Haynie, 637 F.2d 227, 237 (4th Cir. 1980)). "When a
person has 'so relinquished his interest in the property
that he no longer retains a reasonable expectation of privacy
in it at the time of the search' he has no standing to
complain of a Fourth Amendment violation." United
States v. McFillin. 713 F.2d 57, 59 (4th Cir. 1981)
(quoting United States v. CeUa. 568 F.2d 1266, 1283
(9th Cir. 1977)); see United States v. Cofield. 272
F.3d 1303, 1306 (11th Cir. 2001) ("In determining
whether there has been abandonment, the critical inquiry is
whether the person prejudiced by the search voluntarily
discarded, left behind, or otherwise relinquished his
interest in the property in question so that he could no
longer retain a reasonable expectation of privacy with regard
to it at the time of the search."). Accordingly, in
deciding whether a defendant has abandoned property, the
court must consider "the suspect's words and actions
and the surrounding circumstances." United States v.
Clemons. No. 95-5162, 1995 WL 729479, at *3 (4th Cir.
Dec. 11, 1995) (unpublished) (citing United States v.
Jones. 707 F.2d 1169, 1172 (10th Cir. 1983)).
an expectation of privacy is "reasonable, " and
thus entitled to Fourth Amendment protection, turns on
subjective and objective components. "[F]irst... a
person [must] have exhibited an actual (subjective)
expectation of privacy and, second, that... expectation
[must] be one mat society is prepared to recognize as
'reasonable.'" United States v. Clark,
891 F.2d 501, 506 (4th Cir. 1989) (emphasis and internal
quotation marks omitted) (second and third brackets and
ellipses in original) (quoting Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring)). "While the individual whose property was
searched bears the burden of proving a legitimate expectation
of privacy in the items searched, the burden of proving
abandonment is on the government." Cofield. 272