United States District Court, W.D. Virginia, Harrisonburg Division
January 9, 2017
UNITED STATES OF AMERICA
MARIA ROSALBA ALVARADO MCTAGUE, et al., Defendants.
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
F.3d at 1306; see United States v. Castellanos. 716
F.3d 828, 832 (4th Cir. 2013) ("The burden of showing a
legitimate expectation of privacy . .. rests with the
initial matter, the court assumes, without deciding, that
Felix Chujoy maintained a subjective expectation of privacy
in his phone. Felix Chujoy's course of conduct on
December 12, 2014 supports an inference that, at the time he
left his phone under the ashtray, he intended to return for
it, and expected that it would remain unmolested for the
duration of his time in the courthouse. There is no reason to
think that he intended to permanently discard his phone to
avoid its seizure by the authorities. When he arrived at the
courthouse, Felix Chujoy appears to have been unaware that
Homeland Security officers were waiting to arrest him. He put
his phone under the ashtray pursuant to the suggestion of the
CSO-an action apparently taken routinely by courthouse
visitors. Moreover, his sister, Gladys Chujoy, did the same,
though she was at the time unindicted, and therefore had no
reason to fear search or seizure of her phone. In sum, Agent
Ketcham's testimony suggests that Felix Chujoy and Gladys
Chujoy, like many other visitors, temporarily secreted their
phones under the ashtray for convenience, with the intent to
return for them after leaving the courthouse.
as discussed above, Felix Chujoy's subjective intent is
not dispositive. See United States v. Basinski.
226 F.3d 829 (7th Or. 2000) ("[T]t does not matter
whether the defendant harbors a desire to later reclaim an
item .. .."). Felix Chujoy must carry his burden to
demonstrate that his expectation of privacy was an
objectively reasonable one. This he has failed to do.
situations most commonly give rise to courts finding that a
defendant abandoned seized property: first, where a defendant
disclaimed any interest in the object, see, e.g..
United States v. Leshuk. 65 F.3d 1105, 1111 (4th
Cir. 1995) (defendant denied owning bags containing
contraband), and second, where a defendant physically
relinquished the evidence, see, e.g.. United
States v. McLaughlin. 525 F.2d 517, 519-20 (9th Cir.
1975) (marijuana thrown from moving truck during police
pursuit), cert, denied, 427 U.S. 904 (1976);
United States v. Gordon. 152 F.App'x 282, 283
(4th Ck. 2005) (unpublished) (gun discarded as defendant ran
from officers). Felix Chujoy never disclaimed an interest in
his cell phone: when Agent Ketcham asked about his phone, he
merely declined to answer, and the record contains no
statement made by him when the CSO handed her the phone.
However, he did physically relinquish it. Thus, the question
turns on whether, by placing his cell phone under the ashtray
in front of the courthouse, Felix Chujoy lost any objectively
reasonable expectation of privacy in that phone. Although the
question is close, the court concludes that he has not met
his burden of demonstrating that he retained an objectively
reasonable expectation of privacy when he placed his cell
phone under the ashtray on the front steps of the
bears mentioning that Felix Chujoy and Gladys Chujoy left
their phones under an ashtray, in public, outside the front
door of the Harrisonburg federal courthouse. Unlike in most
cases that find abandonment absent an explicit disavowal of
ownership, Felix Chujoy does not appear to have left his
phone in order to shield it from discovery; rather, he left
it for convenience, to allow him to enter the courthouse.
Further complicating the analysis is that Felix Chujoy
apparently left his cell phone outside the courthouse at the
suggestion of the CSO who later retrieved it for Agent
Ketcham. Nonetheless, the fact remains that the phone was
left, unguarded, in public. This is strong evidence of
abandonment. E.g., United States v.
McFillin. 713 F.2d 57, 58 (4th Cir. 1981);
Clemons. 1995 WL 729479, at *3.
Felix Chujoy left his phone where anyone could see, touch, or
even remove it without him knowing. "[His] ability to
recover the [phone] depended entirely upon fate and the
absence of inquisitive (and acquisitive) passers-by."
United States v. Davis, No. 4:12-CR-00267-RBH, 2012
WL 5511783, at *3 (D.S.C. Nov. 14, 2012) (unpublished)
(finding abandonment where a defendant left a bag on the side
of the road hoping to recover it later). Strangers'
ability to access property also suggests abandonment.
E.g., California v. Greenwood. 486 U.S. 35,
40 (1988); Abel v. United States, 362 U.S. 217, 241
(1960); United States v. Jackson. 728 F.3d 367, 375
(4th Or. 2013). No party presented testimony from the CSO,
and there is no indication that the CSO provided any
assurance to Felix Chujoy that he would monitor the ashtray.
Rather, the fact that the CSO suggested so slapdash a
receptacle suggests that he was advising Felix Chujoy of a
common practice among visitors, rather than supplying him
with a secure place to stash his phone.
complicating factor in this case is the role of the CSO, both
in suggesting the ashtray as a place where courthouse
visitors could stash their phones, and in retrieving Felix
Chujoy's cell phone for Agent Ketcham. While the court
does not believe that CSOs should be engaged in either of
these activities, the involvement of the CSO does not change
the result in this case. Regardless of the suggestion of the
CSO, Felix Chujoy made the decision to put his cell phone
under an ashtray on the front steps of the federal courthouse
rather . than secure it elsewhere, such as in a car. Having
done so, it was fair game for anyone who happened along.
Placing one's cell phone under an ashtray in so open a
place as the steps of a federal courthouse and leaving it
there is not consistent with an objectively reasonable
expectation of privacy. Under these circumstances, Felix
Chujoy has not met his burden of establishing that he
retained an objectively reasonable expectation of privacy
when he left his cell phone under an ashtray on the
courthouse steps and walked away, entering the building.
tiiough Felix Chujoy surely intended to return for his phone,
he chose to leave it in public, unsecured, where anyone could
find it. Indeed, any visitor to the court that carried a cell
phone would be immediately alerted to the location of Felix
Chujoy's phone. Such ready access, in public, renders
unreasonable any expectation of privacy Felix Chujoy might
have had. Accordingly, the court cannot conclude that his
expectation of privacy in a cell phone deposited under an
ashtray on die courdiouse steps was objectively reasonable.
Thus, for the purpose of the Fourth Amendment, the phone was
abandoned. Felix Chujoy's motion (ECF No. 342) is DENIED.
appropriate Order will be entered.
 Agent Ketcham was the only witness to
testify at the suppression hearing; accordingly, the court
bases the following factual summary primarily on her
 Gladys Chujoy was not a codefendant at
the time; she was named in a superseding indictment returned
subsequent to the events at issue here. See ECF No.
 It appears Felix Chujoy had been
processed and released on bond by this point, as Agent
Ketcham testified she could hear Felix Chujoy and Gladys
Chujoy conversing in the background of the phone
Agent Ketcham testified that, though
she knew she had no warrant to search or seize the phone, she
kept it because she had earlier executed a search warrant on
Felix Chujoy's house, and the only reason she didn't
get the phone there was because he wasn't present.
Moreover, she knew she would apply for another warrant to
search the phone.
 In his brief in support of his motion,
Felix Chujoy urges the court to find that he did not abandon
his phone because "it can be reasonably inferred from
the evidence that [he] expected to retrieve the hidden phone
within a short amount of time." ECF No. 350, at 2. This
intent, however, only goes to his subjective hopes of
privacy. It does nothing to suggest that he was reasonable in
believing his phone would remain undisturbed.
 The issue is not whether Felix Chujoy
retained a reasonable expectation of privacy in the
contents of the cell phone, as Felix Chujoy suggests
in his brief. ECF No. 350, at 2 (arguing against a finding of
abandonment because die phone "contained (locked behind
a password) quite a bit of private information"). As
Felix Chujoy points out, the phone could not be unlocked
witiiout a pass code, and therefore, even if stolen, Felix
Chujoy could reasonable assume die phone's data would not
be accessible. Ratiier, die question is whether Felix Chujoy
could reasonably tiiink tiiat die phone itself would not be
 Felix Chujoy argues that the phone was
"hidden from public view" and thus was not
abandoned. ECF No. 350, at 2. While his phone may not have
been visible to disinterested passersby on the street, it was
deposited in the same place any court visitor would be told
was available to stash his or her phone. Felix Chujoy thus
knew that there was a strong chance other people would be
directed by the court officer to exactly where his phone was
hidden, all but ensuring, "public view" of the