Opposition Brief — Antonio Daron Futrell, Petitioner v. Virginia

No. 21-1525

In the

Supreme Court of the United States

ANTONIO DARON FUTRELL,

v.

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for Writ of Certiorari

to the Court of Appeals of Virginia

BRIEF IN OPPOSITION

JASON S. MIYARES

Attorney General of

Virginia

ANDREW N. FERGUSON

Solicitor General

Counsel of Record

CHUCK SLEMP

Chief Deputy

Attorney General

ERIKA L. MALEY

Principal Deputy

Solicitor General

M. NICOLE WITTMANN

Deputy Attorney

General

KEVIN M. GALLAGHER

Deputy Solicitor

General

MAUREEN MSHAR

Assistant Attorney

General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

aferguson@oag.state.va.us

M. JORDAN MINOT

Assistant Solicitor

General

Counsel for the Commonwealth of Virginia

i

QUESTION PRESENTED

Whether the Fourth Amendment’s abandonment

exception to the warrant requirement is per-se inapplicable to cell phones that have no password.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... iii

INTRODUCTION ........................................................1

STATEMENT ..............................................................2

REASONS FOR DENYING THE PETITION ............7

I. The decision below does not conflict with

rulings of any federal court of appeals or state

court of last resort ....................................................7

II. This case is a poor vehicle to consider the

question presented ................................................. 14

III. The decision below is correct ........................... 20

CONCLUSION .......................................................... 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abel v. United States,

362 U.S. 217, (1960) ................................. 18, 21, 23

Berry v. Federal Bureau of Investigation,

2020 WL 13065178 (1st Cir. Feb. 27, 2020) ........ 24

Box v. Planned Parenthood of Ind. & Ky., Inc.,

139 S. Ct. 1780 (2019) .......................................... 13

Brown v. South Carolina,

139 S. Ct. 486 (2018) ............................................ 13

California v. Greenwood,

486 U.S. 35 (1988) .......................................... 18, 23

Crumble v. United States,

139 S. Ct. 187 (2018) ............................................ 13

Flores v. Nevada,

462 P.3d 1236 (Nev. Ct. App. May 20,

2020) ............................................................... 10, 16

Florida v. K.C.,

207 So.3d 951 (Fla. Dist. Ct. App.

2016) ......................................................... 10, 11, 16

Florida v. Meyers,

466 U.S. 380 (1984) .............................................. 15

Gudema v. Nassau Cnty.,

163 F.3d 717 (2d Cir. 1998) ................................. 18

iv

Huber v. New Jersey Dep’t of Envt’l Prot.,

562 U.S. 1302 (2011) ............................................ 14

Kentucky v. King,

563 U.S. 452 (2011) .............................................. 21

Louisiana v. Rousset,

302 So.3d 55 (La. Ct. App. 2020) ......................... 10

North Dakota v. Valles,

925 N.W.2d 404 (N.D. 2019) ........................ passim

Rakas v. Illinois,

439 U.S. 128 (1978) .............................................. 21

Riley v. California,

573 U.S. 373 (2014) ...................................... passim

Small v. United States,

140 S. Ct. 2644 (2020) .......................................... 13

Smith v. Maryland,

442 U.S. 735 (1979) ........................................ 18, 24

South Carolina v. Brown,

815 S.E.2d 761 (S.C. 2018) ........................ 9, 22, 23

Sparks v. United States,

136 S. Ct. 2009 (2016) .......................................... 13

Stanton v. Sims,

571 U.S. 3 (2013) .................................................. 13

State v. Brown,

776 S.E.2d 917 (S.C. Ct. App. 2015) .................... 19

v

State v. Hill,

789 S.E.2d 317 (2016) .......................................... 24

Trulock v. Freeh,

275 F.3d 391 (4th Cir. 2001) ................................ 24

United States v. Barrows,

481 F.3d 1246 (10th Cir. 2007) ............................ 23

United States v. Cleveland,

907 F.3d 423 (6th Cir. 2018) .................................. 4

United States v. Crumble,

878 F.3d 656 (8th Cir. 2018) ............................ 9, 23

United States v. Escamilla,

852 F.3d 474 (5th Cir. 2017) .................................. 9

United States v. Ferebee,

957 F.3d 406 (4th Cir. 2020) ................................ 22

United States v. Jones,

707 F.2d 1169 (10th Cir. 1983) ............................ 21

United States v. Ross,

963 F.3d 1056 (11th Cir. 2020) .............................. 9

United States v. Small,

944 F.3d 490 (4th Cir. 2019) ............................ 8, 12

United States v. Sparks,

806 F.3d 1323 (11th Cir. 2015) ........................ 9, 24

United States v. Sumlin,

909 F.2d 1218 (8th Cir. 1990) .............................. 19

vi

United States v. Thomas,

864 F.2d 843 (D.C. Cir. 1989) .............................. 21

Washington v. Samalia,

375 P.3d 1082 (Wash. 2016) .................... 10, 22, 23

Wiltz v. State,

609 S.W.3d 543 (Tex. Crim. App. 2020) .............. 19

Wiltz v. Texas,

141 S. Ct. 1742 (2021) .......................................... 13

Wiltz v. Texas,

595 S.W.3d 930 (Tx. Ct. App. 2020) .............. 10, 16

Statutes

Va. Code § 17.1-413(A) .............................................. 15

Va. Code § 18.2-26 ....................................................... 5

Va. Code § 18.2-51 ....................................................... 5

Va. Code § 18.2-53.1 .................................................... 5

Va. Code § 18.2-279 ..................................................... 5

Va. Code § 18.2-308.2 .................................................. 5

Other Authorities

Stephen Shapiro et al., Supreme Court

Practice, 180 n.50 (10th ed. 2013) ....................... 15

Sup. Ct. R. 10(b) .............................................. 8, 12, 14

1

INTRODUCTION

Petitioner Antonio Daron Futrell asks this Court

to review an unpublished, non-precedential decision of

an intermediate state court. Review is unwarranted

because there is no split of authority, this case is a

poor vehicle for resolving the question presented, and

the Virginia Court of Appeals’ decision is correct.

The ruling below that the limited search of

Futrell’s cell phone did not violate his Fourth Amendment rights does not conflict with any decision by any

federal court of appeals or state court of last resort.

Every such court to consider the question has held

that this Court’s decision in Riley v. California, 573

U.S. 373 (2014), did not exempt cell phones from the

traditional abandonment exception to the Fourth

Amendment’s warrant requirement. Riley addressed

only the search-incident-to-arrest exception, which

protects officers from hidden weapons and preserves

evidence during a lawful arrest. Id. at 383. Warrantless searches of cell phones incident to an arrest advance neither of those interests. Id. at 387–91. The

abandonment exception, by contrast, rests on the common-sense proposition that people lack a reasonable

expectation of privacy in property that they have voluntarily abandoned. This rationale applies to cell

phones, just as to any other form of property. And Riley does not address it at all.

Moreover, the police searched Futrell’s unlocked

phone only to determine the number associated with

2

the phone and the serial code. This case would therefore be an exceptionally poor vehicle to consider

whether the “vast quantities of personal information”

that could be stored in a phone’s applications or in the

“cloud” require some limits on the scope of a warrantless search of an abandoned phone. Pet. 7, 28.

The petition for a writ of certiorari should be denied.

STATEMENT

1. Futrell left a restaurant with three companions around 1:00 a.m. on October 7, 2018. Shortly after

walking out of the restaurant, he realized he had left

behind his cell phone. Pet. App. 2a. Futrell turned to

a waitress and told her, “I want you to go inside and

get my phone, B****.” Ibid. The waitress responded

that Futrell “[did not] have to talk to [her] like that,

but we can go inside to get your phone.” Ibid. Instead

of accompanying the waitress to retrieve his phone,

Futrell insisted, “No, you’re going to get me my phone

now, B****.” Ibid.

Because Futrell was “very hostile towards the

waitress,” a private security guard, Charles Kelley,

stepped in front of Futrell and asked him to “stop, wait

a minute, and we can see if we can go inside and find

your phone.” Pet. App. 2a (quotation marks omitted).

Despite Kelley reassuring Futrell that the waitress

would search for his phone, Futrell “became more hostile.” Ibid. He stood within two feet of the waitress and

3

began “swinging his hands and was getting ready to

grab her.” Ibid. (quotation marks omitted).

Futrell then turned to one of his companions and

instructed him to “[g]o get my s***.” Pet. App. 2a. The

companion went to a car and returned with a firearm

and a magazine containing ammunition. Ibid. Upon

seeing the firearm, Kelley stepped approximately five

feet from the companion, drew his own weapon, and

asked the companion to “[p]lease drop your weapon.”

Pet. App. 2a–3a. The companion put down the firearm, and Kelley lowered his weapon. Pet. App. 3a.

Futrell then picked up the firearm and loaded it.

Pet. App. 3a. Kelley again raised his weapon in response and told Futrell to drop his firearm. Ibid.

Futrell instead began firing at Kelley. Ibid. Kelley returned fire. Ibid. After rounds from Kelley’s firearm

struck the car, Futrell or his companion uttered, “Oh

s***,” and they both fled in the car. Ibid.

2. The police detective who investigated the shooting discovered that officers had recovered a cell phone

that had been left behind at the restaurant. Pet. App.

3a. The detective inspected the phone and found that

it was not a “typical phone where you can take off the

back and expose the battery,” which would have

shown the phone’s International Mobile Equipment

Identity (IMEI) number.1 Ibid.

1 An IMEI number (which the court below referred to as an “IME

number,” see, e.g., Pet. App. 3a) is a 15-digit serial code unique

4

The detective pressed the power button, and the

phone turned on. Pet. App. 3a. The phone did not require a password for access. Ibid. The detective used

the “settings” feature on the phone to locate the

phone’s number and serial code. Ibid. He then placed

the phone in “airplane mode”2 and returned it to the

police department’s property and evidence department. Ibid. The detective never attempted to view call

logs, text messages, or any other applications or data

on the phone. Ibid. The detective did not have a search

warrant for the phone. Ibid.

The detective entered the phone number into a database that consolidated police reports in the region.

Pet. App. 4a. The program indicated that there was

“some kind of association” between Futrell’s name and

the phone number recovered from the cell phone. Ibid.

The database also provided a photograph of Futrell.

Ibid. The police showed this photograph to Kelley as

part of a photo lineup, and Kelley identified Futrell as

the shooter. Ibid.

The police subsequently discovered that Futrell

had obtained a new cell phone after the shooting. Pet.

App. 4a, 9a. The detective obtained a real-time GPS

track search warrant for that new cell phone, and the

police located Futrell. Pet. App. 4a.

to each device, that can be “used to find the phone number associated with a particular cell phone.” Ibid.

2 “Airplane mode” refers to sequestering a phone from its net-

work in order to “disable[] transmissions to the phone.” United

States v. Cleveland, 907 F.3d 423, 432 n.3 (6th Cir. 2018).

5

3. Futrell was charged with attempted malicious

wounding in violation of Va. Code §§ 18.2-26 and 18.251, use of a firearm in the commission of a felony in

violation of Va. Code § 18.2-53.1, possession of a firearm by a convicted felon in violation of Va. Code

§ 18.2-308.2, and shooting into an occupied building in

violation of Va. Code § 18.2-279. Pet. App. 14a–15a.

Before trial, Futrell moved to suppress “any and all

evidence obtained as a result of a search” of his cell

phone, contending that “he had not abandoned his

phone,” and that the warrantless search violated the

Fourth Amendment under Riley. Pet. App. 4a. The

trial court denied his motion to suppress, holding that

Futrell abandoned the phone by leaving it at the restaurant, and that Riley did not “address abandonment.” Pet. App. 4a–5a. Futrell subsequently pleaded

guilty but reserved the right to appeal the adverse

suppression ruling. Pet. App. 15a.

On appeal, Futrell argued that the trial court erred

when it denied his motion to suppress the evidence obtained from the search of his cell phone, because he

did not abandon his phone and had a reasonable expectation of privacy in its contents. Pet. App. 2a. The

Court of Appeals of Virginia rejected this argument. It

held that Futrell abandoned his phone because he “decided to flee the area after firing his weapon at a security guard, leaving his cell phone behind at the restaurant,” and because he “did not return to the restaurant

that night to retrieve the cell phone, even though he

knew where it was located.” Pet. App. 8a–9a. Futrell’s

6

use of “a new cell phone after the incident” further

clarified his intention to abandon his cell phone in the

restaurant. Pet. App. 9a. Therefore, although Futrell

“did not deny ownership of the cell phone, he did relinquish physical control of it and did not attempt to

retrieve it.” Ibid.

The Court of Appeals of Virginia also rejected

Futrell’s argument that Riley required suppression of

evidence obtained from the abandoned cell phone. See

Pet. App. 9a. The court concluded that Riley “does not

prevent courts from considering whether cell phones

have been abandoned for Fourth Amendment purposes,” because Riley “d[id] not alter the standard

analysis of determining whether an accused has relinquished his or her privacy interest in property, including a cell phone, by abandoning an item.” Pet. App.

10a–11a. The court noted that Riley had found that

“the expansive privacy interests at stake when police

search a cell phone” outweigh the government’s limited interest in searching cell phones incident to an

arrest, “because such searches do not meaningfully

advance the search incident to arrest exception’s dual

purposes of protecting officers and preventing the destruction of evidence.” Pet. App. 9a–10a. But the court

reasoned that “this heightened privacy concern is not

at issue when a suspect abandons a cell phone” because “that abandonment has demonstrated the suspect’s relinquishment of any privacy interest at all in

the contents of the phone.” Pet. App. 10a. The search

of Futrell’s phone “violated no protected Fourth

7

Amendment right” and, accordingly, the court affirmed the trial court’s denial of the suppression motion. Pet. App. 11a.

The Supreme Court of Virginia refused Futrell’s

petition for appeal on March 4, 2022. Pet. App. 12a.

Futrell timely filed a petition for a writ of certiorari.

REASONS FOR DENYING THE PETITION

The petition should be denied. The ruling below

does not conflict with any decision from a United

States court of appeals or a state court of last resort.

Further, this unpublished decision of a state intermediate court would be an exceptionally poor vehicle to

consider the question presented given the limited

scope of the search and the fact that Futrell had not

password-protected his phone before abandoning it.

Finally, review is unwarranted because the judgment

below is correct, as every court to consider the issue

has similarly held.

I.

The decision below does not conflict with

rulings of any federal court of appeals or

state court of last resort

First, this Court’s review is unwarranted because

there is no split in authority. Futrell notes that “[a]t

least 7 state appellate courts and 4 federal courts of

appeals have considered” how “the abandonment exception applies to the digital contents of cell phones”

in the 8 years after Riley, Pet. 2–3, but none of those

decisions conflicts with the ruling below. To the

8

contrary, every federal court of appeals and state

court of last resort to consider the question presented

has held that the government may conduct warrantless searches of the digital data on abandoned cell

phones consistent with the Fourth Amendment.

Futrell attempts to manufacture a split of authority by pointing to the holding of a single Florida state

intermediate court. See Pet. 3, 14–23. But the decision

on which he relies does not conflict with the judgment

below. The Florida court held that the abandonment

exception to the warrant requirement prohibits the

warrantless search of abandoned cell phones only

where they are password-protected, and Futrell’s

phone was not password-protected. And, in any event,

the judgment of the Florida court was not from a

“state court of last resort or of a United States court of

appeals,” and therefore does not create a conflict warranting this Court’s review. Sup. Ct. R. 10(b).

1. As Futrell notes, Pet. 20–23, multiple federal

courts of appeals have considered the question presented since this Court decided Riley, and each agrees

with the holding of the Court of Appeals of Virginia

below. See United States v. Small, 944 F.3d 490, 503

n.2 (4th Cir. 2019) (rejecting argument that even if the

petitioner “abandoned his physical phone, he did not

abandon its digital contents,” because Riley “emphasized that ‘other case-specific exceptions may still justify a warrantless search of a particular phone’” and

“this is such a case” (quoting Riley, 573 U.S. at 401–

02)), cert. denied 140 S. Ct. 2644 (2020); United States

9

v. Crumble, 878 F.3d 656, 660 (8th Cir. 2018) (declining to “categorically deny application of the abandonment doctrine to cell phones” because “Riley’s holding

is limited to cell phones seized incident to arrest”),

cert. denied 139 S. Ct. 187 (2019); United States v. Escamilla, 852 F.3d 474, 485–86 (5th Cir. 2017) (concluding that defendant “abandoned any privacy interest he had in the phone” when he “expressly disclaimed ownership of the phone and left it in the possession of DEA agents”), cert. denied 138 S. Ct. 336

(2017); see also United States v. Sparks, 806 F.3d

1323, 1343–44 (11th Cir. 2015) (holding that defendants who abandoned cell phone lacked standing to

challenge law enforcement delay in obtaining search

warrant), cert. denied 136 S. Ct. 2009 (2016), overruled by United States v. Ross, 963 F.3d 1056 (11th

Cir. 2020) (holding that abandonment “runs to the

merits of [a defendant’s] Fourth Amendment challenge” rather than implicating Article III standing),

cert. denied 141 S. Ct. 1394 (2021).

Futrell also recognizes, see Pet. 14–20, that every

state court of last resort to consider the question following Riley has likewise held that the abandonment

exception permits warrantless searches of cell phones.

See North Dakota v. Valles, 925 N.W.2d 404, 408 (N.D.

2019) (explaining that “[i]f truly abandoned, a phone

is ownerless and thus the former owner lacks a continuing possessory interest to assert a Fourth Amendment claim”); South Carolina v. Brown, 815 S.E.2d

761, 764 (S.C. 2018) (“Riley does not alter the

10

standard abandonment analysis.”), cert. denied 139 S.

Ct. 486 (2018); Washington v. Samalia, 375 P.3d 1082,

1088–89 (Wash. 2016) (holding that “the rationale

driving the abandonment doctrine fits cell phone

searches” because “[w]hen an individual voluntarily

abandons an item . . . that individual voluntarily exposes that item—and all information that it may contain—to anyone who may come across it”).3

2. Against that unanimous weight of authority,

Futrell attempts to manufacture a split by citing the

lone opinion of an intermediate state appellate court

in Florida v. K.C., 207 So.3d 951 (Fla. Dist. Ct. App.

2016). See Pet. 19–20. But that decision does not conflict with the decision below. The defendant in K.C.

abandoned a password-protected phone, 207 So.3d at

952; Futrell’s phone had no password. The state intermediate court’s judgment expressly turned upon this

3 Numerous state intermediate courts have similarly concluded

that the abandonment doctrine applies to cell phones. See Louisiana v. Rousset, 302 So.3d 55, 64 (La. Ct. App. 2020) (“We agree

that the holding in Riley does not apply in this case.”), cert. denied 304 So.3d 416 (La. 2020); Flores v. Nevada, 462 P.3d 1236,

at *5–6 (Nev. Ct. App. May 20, 2020) (concluding that Riley was

inapplicable and that warrantless search of phone was permissible because “any reasonable expectation of privacy in the phone

that [the defendant] may have had after fleeing was severely diminished, especially considering the phone was not password

protected,” and because “the search was limited to uncovering

the phone’s owner”); Wiltz v. Texas, 595 S.W.3d 930, 932 (Tx. Ct.

App. 2020) (“Because appellant abandoned the cell phone in his

open car when he fled from the police, we conclude he lacked

standing to challenge the constitutionality of the cell-phone

search.”), pet. refused 609 S.W.3d 543 (Tex. Crim. App. 2020),

cert. denied 141 S. Ct. 1742 (2021).

11

distinction. K.C. held “that a categorical rule permitting warrantless searches of abandoned cell phones,

the contents of which are password protected,

is . . . unconstitutional.” Id. at 956 (emphasis added);

id. at 958 (“[W]e conclude that the abandonment exception does not apply to cell phones whose contents

are protected by a password.”). The court emphasized

that the “contents [of the defendant’s] phone were still

protected by a password, clearly indicating an intention to protect the privacy of all of the digital material

on the cell phone or able to be accessed by it.” Id. at

955. Indeed, the court continued, “the password protection that most cell phone users place on their devices is designed specifically to prevent unauthorized

access to the vast store of personal information which

a cell phone can hold when the phone is out of the

owner’s possession.” Ibid. Thus, K.C. held that the defendant had not “relinquished his reasonable expectation of [privacy as to] the contents of the phone because

of the password protection on the phone.” Id. at 956

(citing Brown, 776 S.E.2d at 926–27 (Konduros, J.,

dissenting)).

There is no split between K.C. and the decision below. Unlike the defendant in K.C., Futrell did not protect his phone with a password. Therefore, under

K.C.’s own reasoning, once Futrell had abandoned the

phone in a public place without a password “indicating

an intention to protect the privacy of all the digital

material,” id. at 955, Futrell no longer had a reasonable expectation of privacy in the contents of that cell

12

phone. Indeed, by abandoning the phone with no password, Futrell “ran the risk that complete and total

strangers would come upon it,” and clearly “relinquished his reasonable expectation of privacy in it.”

Small, 944 F.3d at 504.

In any event, a decision from an intermediate state

court disagreeing with every federal court of appeals

and every state court of last resort to consider the issue does not create a split. See Sup. Ct. R. 10(b) (explaining that petitions may be granted on the ground

that there is a conflict with “the decision of another

state court of last resort or of a United States court of

appeals” (emphasis added)). The lack of any split

demonstrates that this Court’s review is not warranted here.

Futrell also contends that “4 dissenting opinions”

in the cases he cites evince lower-court “confusion” on

the application of the abandonment exception to cell

phone data. Pet. 2–3. Dissenting opinions, of course,

are not splits of authority weighing in favor of this

Court’s review. See Sup. Ct. R. 10(b) (writ of certiorari

appropriate if “a state court of last resort has decided

an important federal question in a way that conflicts

with the decision of another state court of last resort

or of a United States court of appeals” (emphasis

added)). And four dissenting opinions in eleven decisions is hardly evidence of “confusion.” Every federal

court of appeal and state high court to have considered

the question reached the same conclusion that the

Court of Appeals of Virginia reached here.

13

3. In any event, even if one intermediate state

court decision on different facts and a handful of dissents could demonstrate lower-court “confusion,” Pet.

2, this Court should permit further percolation on the

question presented. No court of appeals to have considered the question since Riley has disagreed on the

application of the abandonment exception to cell

phones like Futrell’s. This Court has repeatedly denied petitions for writs of certiorari presenting the

same question as this petition, but no split has developed. See, e.g., Wiltz v. Texas, 141 S. Ct. 1742 (2021);

Small v. United States, 140 S. Ct. 2644 (2020); Brown

v. South Carolina, 139 S. Ct. 486 (2018); Crumble v.

United States, 139 S. Ct. 187 (2018); Sparks v. United

States, 136 S. Ct. 2009 (2016). And the vast majority

of federal courts of appeals and state courts of last resort have not yet considered the question since this

Court decided Riley. Given the unanimous authority

on the side of the ruling below, a split may well never

develop. If a split were to develop, however, this Court

could review the question presented at that time, with

the benefit of the perspectives of additional federal

courts of appeals and state courts of last resort. See,

e.g., Box v. Planned Parenthood of Ind. & Ky., Inc., 139

S. Ct. 1780, 1782 (2019) (“We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional

Courts of Appeals.”); Stanton v. Sims, 571 U.S. 3, 10

(2013) (granting petition for certiorari and noting that

“the federal and state courts of last resort around the

Nation were sharply divided”).

14

II.

This case is a poor vehicle to consider the

question presented

Second, the petition should be denied because this

case would be a poor vehicle to resolve the question

presented. The decision below is an unpublished, state

intermediate court opinion; it is not precedential in

Virginia. Further, the relevant facts—that Futrell’s

phone was not password-protected and that the detective looked only at the phone’s number and serial

code—make this case particularly ill-suited to decide

the doctrinal and policy questions that the petition

raises regarding privacy interests in digital data. In

addition, Futrell contested below whether he abandoned the phone at all, posing another potential barrier to deciding the question presented.

1. This Court’s review is not warranted because

the decision below is a nonprecedential ruling of a

state intermediate appellate court. This Court’s Rule

10 contemplates whether the decision below was made

by a state court of last resort. See Sup. Ct. R. 10(b)

(certiorari considered when “a state court of last resort

has decided an important federal question in a way

that conflicts with the decision of another state court

of last resort or of a United States court of appeals”

(emphasis added)). Thus, a “denial of certiorari is appropriate” when a case “comes to [the Court] on review

of a decision by a state intermediate appellate court.”

Huber v. New Jersey Dep’t of Envt’l Prot., 562 U.S.

1302, 1302 (2011) (statement of Alito, J., joined by

Roberts, C.J., and Scalia and Thomas, JJ., respecting

15

the denial of certiorari); see also Florida v. Meyers,

466 U.S. 380, 385 (1984) (Stevens, J., dissenting) (“[I]f

we take it upon ourselves to review and correct every

incorrect disposition of a federal question by every intermediate state appellate court, we will soon become

so busy that we will either be unable to discharge our

primary responsibilities effectively, or else be forced

to make still another adjustment in the size of our

staff in order to process cases effectively.”); Stephen

Shapiro et al., Supreme Court Practice, 180 n.50 (10th

ed. 2013) (explaining that this Court “may be less willing to grant certiorari to review a decision from [a]

state intermediate appellate court”).

These concerns are compounded by the fact that

the decision below is unpublished and non-precedential. See Pet. App. 1a; Va. Code § 17.1-413(A) (only

published opinions “hav[e] precedential value” or “significance” in Virginia). Not even future panels of the

Court of Appeals of Virginia are bound by the decision

below and, of course, nothing prevents the Supreme

Court of Virginia from coming to a different conclusion

in a future case. There is no reason for this Court to

weigh in on an issue when the state high court can

still adopt a different view and when the intermediate

court may change course too. This Court should follow

its regular practice here and deny the petition.

2. Further, this case would be an exceptionally

poor vehicle to consider the question presented because Futrell’s cell phone was not password-protected;

police located merely the phone’s number and serial

16

code before returning it to the evidence department;

and Futrell contested below whether he abandoned

the phone at all.

The lack of password protection makes this case a

poor vehicle. As Futrell acknowledges, several courts

have drawn a “Fourth Amendment distinction between password- and non-password-protected phones”

with regard to the abandonment exception. Pet. 24.

Although Futrell contends that this “distinction is irrelevant, unworkable, and wrong,” ibid, multiple

cases he cites—including the K.C. case—concluded

that this factor was significant. See, e.g., K.C., 207

So.3d at 955 (“While we acknowledge that the physical

cell phone in this case was left in the stolen vehicle by

the individual, and it was not claimed by anyone at

the police station, its contents were still protected by

a password, clearly indicating an intention to protect

the privacy of all of the digital material on the cell

phone or able to be accessed by it.”); Wiltz, 595 S.W.3d

at 935 (“The record contains no evidence that the cell

phone was password-protected or that appellant otherwise had attempted to limit another person’s ability

to access the phone and search through it to ascertain

ownership.”); Flores, 462 P.3d at *2 (“Further, any

reasonable expectation of privacy in the phone that

Flores may have had after fleeing was severely diminished, especially considering the phone was not password protected and anyone, including the police, may

have found the phone and opened it in an attempt to

identify and locate its owner.”); Valles, 925 N.W.2d at

17

411 (“[T]he clear message of a lock is that the owner

does not intend someone who picks up the phone to

examine the contents for any purpose.”).

In addition, this Court indicated in Riley that a

phone’s lack of password protection may affect what

steps officers can take with that phone. Specifically,

this Court noted that, “if officers happen to seize a

phone in an unlocked state, they may be able to disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data” for

the purpose of preserving evidence. Riley, 573 U.S. at

391. A case in which the digital contents of an abandoned phone were protected by a password would be a

far superior vehicle to consider whether a person

abandons his reasonable expectations of privacy in

data stored on or accessible from a phone by abandoning the phone.

This case is also a poor vehicle because of the extremely limited nature of the warrantless search.

Futrell notes hypothetical privacy incursions arising

from the “vast quantities of personal information”

that can be stored on cell phones or in “the cloud.” Pet.

7, 28. But this case does not involve sensitive personal

information stored on a cell phone, much less “vast

quantities” of such information stored in the “cloud.”

Ibid. Unlike other cases in which the police “examined

the phone’s photos, videos, Facebook messenger application, text messages, and call log,” Valles, 925

N.W.2d at 406, the detective here located only the

phone’s number and serial code before returning the

18

phone to the evidence department, Pet. App. 3a. The

detective never attempted to view call logs, text messages, emails, photos, personal information, or any

other data on the phone, much less in the “cloud.” Ibid.

These basic identifiers—the phone’s number and

serial code—represent the sort of information that

might readily be discovered by the government or any

other third party, given the diminished expectation of

privacy in abandoned physical property. California v.

Greenwood, 486 U.S. 35, 40–41 (1988) (abandoning

property “in an area particularly suited for public inspection and, in a manner of speaking, public consumption” results in “no reasonable expectation of privacy in the inculpatory items . . . discarded” (quotation marks and citation omitted)); Smith v. Maryland,

442 U.S. 735, 744 (1979) (holding no expectation of

privacy in phone numbers dialed); Abel v. United

States, 362 U.S. 217, 241 (1960) (holding no reasonable expectation of privacy in “abandoned property” left

in vacated hotel room). Any official or Good Samaritan

attempting to return a lost phone might locate the

same information—or more, like a contacts list or recently called numbers—to aid in finding the phone’s

owner. As courts have recognized, “there is a legitimate government interest, as well as a personal interest, in police officers returning lost cell phones to their

rightful owners.” Valles, 925 N.W.2d at 410; see also

Gudema v. Nassau Cnty., 163 F.3d 717, 722 (2d Cir.

1998) (“[A]lthough an owner retains some privacy interest in property that is merely lost or stolen, rather

19

than intentionally abandoned, that interest is outweighed by the interest of law enforcement officials in

identifying and returning such property to the

owner.”); United States v. Sumlin, 909 F.2d 1218,

1220 (8th Cir.), cert. denied 498 U.S. 1000 (1990)

(holding investigation of purse contents warranted to

confirm purse was same as one reported stolen).

As the detective in this case remarked, a “typical

phone” would allow an officer to “take off the back and

expose the battery,” which would have shown the serial code. Pet. App. 3a. The identifying information the

detective viewed on the phone would thus frequently

be available from a mere physical inspection of the

phone itself. Even the dissenting opinions Futrell relies upon conclude that the abandonment exception

should allow warrantless physical inspections of

phones. See, e.g., Wiltz v. State, 609 S.W.3d 543, 547

(Tex. Crim. App. 2020) (Walker, J., dissenting from

denial of petition for review) (“There is a distinction

between the privacy interests of a cell phone as a

physical object and the digital contents stored on a cell

phone.”); State v. Brown, 776 S.E.2d 917, 927 (S.C. Ct.

App. 2015) (Konduros, J., dissenting) (“While under

these circumstances I would not find a reasonable expectation of privacy existed in the physical object of

the phone, I believe a person preserves their reasonable expectation of privacy in its contents.”). Indeed,

this Court recognized in Riley that law enforcement

officers “remain free to examine the physical aspects

of a phone” without a warrant pursuant to the search-

20

incident-to-arrest exception. 573 U.S. at 387. It would

be peculiar to draw a constitutional distinction between obtaining information from the inside of the

phone case and obtaining the same information from

the phone’s settings. The extremely limited nature of

the search here makes this case a poor vehicle to decide how the Fourth Amendment may apply to a far

more intrusive or extensive search of personal data accessible from a cell phone.

This case is also a poor vehicle because Futrell vigorously contested below whether he had abandoned

the phone at all. Pet. App. 4a–5a, 8a. While the court

correctly rejected those arguments, they could complicate this Court’s review, or potentially even prevent

this Court from reaching the question presented.

This issue has come to this Court frequently since

it decided Riley. See p.13, supra. To the extent this

Court believes the question presented may warrant

review, there will be superior vehicles in which to consider it. The petition in this case should be denied.

III.

The decision below is correct

Finally, review predicated on fact-bound error correction is unwarranted because the decision below

was correct. It is fully consistent with this Court’s

Fourth Amendment jurisprudence, especially given

the lack of a password on the phone and the extremely

limited nature of the search.

21

The “ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Riley, 573 U.S. at 381 (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

The “capacity to claim the protection of the Fourth

Amendment depends . . . upon whether the person

who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.”

Rakas v. Illinois, 439 U.S. 128, 143 (1978). Accordingly, the Fourth Amendment’s “warrant requirement

is subject to certain reasonable exceptions,” including

when the object being searched is a cell phone. Kentucky v. King, 563 U.S. 452, 459 (2011). This Court

recognized as much in Riley, which held “not that the

information on a cell phone is immune from search”

but that “a warrant is generally required before such

a search” when “a cell phone is seized incident to arrest.” Riley, 573 U.S. at 401 (emphasis added). Riley

addressed only searches incident to an arrest, not

searches of abandoned property. Id. at 401–02 (holding that “the search incident to arrest exception does

not apply to cell phones”). Indeed, this Court explicitly

noted that “other case-specific exceptions may still

justify a warrantless search of a particular phone.”

Ibid.

Such an exception applies here. “There can be

nothing unlawful in the Government’s appropriation

of . . . abandoned property,” Abel, 362 U.S. at 241, because “[w]hen individuals voluntarily abandon property, they forfeit any expectation of privacy in it that

they might have had,” United States v. Jones, 707 F.2d

22

1169, 1172 (10th Cir. 1983); see also United States v.

Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989) (“A warrantless search or seizure of property that has been

‘abandoned’ does not violate the [F]ourth [A]mendment.”). The “law is well established that a person

who voluntarily abandons property loses any reasonable expectation of privacy in the property and is consequently precluded from seeking to suppress evidence seized from the property.” United States v. Ferebee, 957 F.3d 406, 412 (4th Cir. 2020).

Futrell contends that this Court’s “antiquated”

abandonment authorities “need updating” in light of

Riley, which Futrell believes “compels a categorical

rule allowing the Government to conduct warrantless

searches of the physical aspects of an abandoned cell

phone but not its digital contents.” Pet. 10, 28–29. But

every federal court of appeals and state court of last

resort to reach the issue has concluded that Riley

“does not alter the standard abandonment analysis.”

Brown, 815 S.E.2d at 764; see also Samalia, 375 P.3d

at 1088 (Riley demonstrates “that no special rules are

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

Riley held that the two rationales on which the

search-incident-to-arrest exception is based—avoiding “harm to officers and destruction of evidence,” 573

U.S. at 386—do not support searches of data on cell

phones. “Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer

or to effectuate the arrestee’s escape,” id. at 387, and

23

“once law enforcement officers have secured a cell

phone, there is no longer any risk that the arrestee

himself will be able to delete incriminating data from

the phone,” id. at 388. The abandonment exception, by

contrast, turns on the principle that people have no

reasonable expectation of privacy in property that

they have voluntarily abandoned. See pp.21–22, supra; Greenwood, 486 U.S. at 40–41; Abel, 362 U.S. at

241. This principle applies to cell phones just like any

other form of property. Valles, 925 N.W.2d at 408;

Brown, 815 S.E.2d at 764 (“Riley does not alter the

standard abandonment analysis.”); Samalia, 375 P.3d

at 1089 (“When an individual voluntarily abandons an

item . . . 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.”). Accordingly, courts have correctly declined

to “categorically deny application of the abandonment

doctrine to cell phones.” Crumble, 878 F.3d at 660.

That conclusion stands on especially firm ground

here because Futrell did not protect his cell phone

with a password, and the search was extremely limited. Futrell abandoned an unlocked phone in a public

restaurant, where any passerby could access the

phone’s data simply by pushing the power button. Pet.

App. 3a. Under those circumstances, Futrell could not

have a reasonable expectation of privacy in the

phone—particularly in the limited information that

24

the police obtained in this case. See, e.g., United States

v. Barrows, 481 F.3d 1246, 1248–49 (10th Cir. 2007)

(concluding that defendant did not have subjective or

reasonable expectation of privacy, given his “failure to

password protect his computer”); Trulock v. Freeh, 275

F.3d 391, 403 (4th Cir. 2001) (recognizing reasonable

expectation of privacy because defendant password

protected his files); Sparks, 806 F.3d at 1330 (describing how person who discovered unlocked phone “was

able to access the content stored on the phone”).

Even if the large amounts of personal information

potentially accessible on cell phones could justify

treating an abandoned password-protected cell phone

differently than other abandoned property, there is no

reasonable expectation of privacy in such basic identifying numbers on an unlocked and abandoned phone.

See State v. Hill, 789 S.E.2d 317, 319 (2016) (“[W]e do

not construe Riley to recognize a legitimate expectation of privacy in identifying noncontent information

such as the person’s own phone number . . . simply because that information was associated with a cellular

phone account rather than a landline phone account

or a piece of physical mail.”); Smith, 442 U.S. at 744

(1979) (holding no expectation of privacy in dialed

numbers); see also Berry v. Federal Bureau of Investigation, 2020 WL 13065178, at *2 (1st Cir. Feb. 27,

2020) (“Berry failed to show that he had any legitimate expectation of privacy in . . . Berry’s own cell

phone number.”).

25

The Court of Appeals of Virginia was thus correct

in holding that Riley “does not prevent courts from

considering whether cell phones have been abandoned

for Fourth Amendment purposes.” Pet. App. 11a. This

Court’s review is unwarranted.

*

*

*

There is no split in authority to merit this Court’s

review, this case is a poor vehicle for considering the

question presented, and error-correction review is not

appropriate. Futrell chose to abandon his unlocked

phone in a public place after shooting at a restaurant’s

staff members. A detective’s brief use of the phone to

identify the phone number and serial code was entirely reasonable. This case does not warrant this

Court’s review.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

26

September 15, 2022

Respectfully submitted,

JASON S. MIYARES

Attorney General of

Virginia

ANDREW N. FERGUSON

Solicitor General

Counsel of Record

CHUCK SLEMP

Chief Deputy

Attorney General

ERIKA L. MALEY

Principal Deputy

Solicitor General

M. NICOLE WITTMANN

Deputy Attorney

General

KEVIN M. GALLAGHER

Deputy Solicitor

General

MAUREEN MSHAR

Assistant Attorney

General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

aferguson@oag.state.va.us

M. JORDAN MINOT

Assistant Solicitor

General

Counsel for the Commonwealth of Virginia