State v. Samalia , 186 Wash. 2d 262 ( 2016 )

Wiggins, J.

¶1 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.

FACTS AND PROCEDURAL HISTORY

¶2 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.

¶3 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.

¶4 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.

¶5 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 the war-rantless 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.

¶6 Samalia appealed, and the Court of Appeals, Division Three, affirmed the trial court in a split decision. State v. Samalia, 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, and (3) the attenuation doctrine applied. Samalia then sought this court’s discretionary review, which we granted.

ANALYSIS

¶7 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.

¶8 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 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.” Id. at 868-69.

¶9 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.

¶10 However, citizens may lose their constitutional protections in a private affair under the abandonment doctrine. In Part III, 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.

I. Standard of review

¶11 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

¶12 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 f 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” 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

¶13 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.

¶14 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.” Id. 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. Id. at 2489-90.

¶15 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 I, section 7

¶16 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 cell phones and their contents are private affairs. For example, cell phones track call logs. In State v. Gunwall, 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 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.

¶17 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.’ ” Id. at 869 (alteration in original) (quoting United States v. Jones, 565 U.S. 400, 415, 132 S. Ct. 945, 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. Id. 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.”).

¶18 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 private affairs, police may not search cell phones without first obtaining a warrant unless a valid exception to the warrant requirement applies.

¶19 Therefore, we hold that Samaba 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.

III. The abandonment doctrine applies to Samalia’s case

¶20 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.

¶21 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 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.

¶22 Based on the amount of private information that cell phones may hold, Samalia argues that article I, section 7 requires either that cell phones 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.

¶23 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. Id. 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. Id. at 2482-84. To answer this question, the Court clarified the reasons that justify a “search incident to arrest”: (1) officer safety and (2) preservation of evidence. Id. 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. Id. 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. Id. at 2486-88. Therefore, the Court held that “the search incident to arrest exception does not apply to cell phones.” Id. 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.”).

¶24 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.” Id. at 875, 874.

¶25 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 any other item; the abandonment doctrine applies to all personal property equally.

¶26 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.

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

¶27 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. Id. 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.

¶28 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 ve-hide 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.

¶29 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 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 410), aff’d, 135 Wn.2d 498, 957 P.2d 681 (1998). The officer turned on his patrol lights and drove toward the defendant. Id. 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.” Id. Suspecting involvement in drug activity, the officer retrieved and immediately searched the package. Id. at 198. The officer discovered drugs in the package and arrested the defendant. Id. The defendant moved to suppress all evidence from the search and arrest. Id. 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. Id. 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).

¶30 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. Id. 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. Id. Store employees contacted the police the next morning, and the police searched the bag without a warrant, finding drugs. Id. at 165-66.

¶31 Upon being charged, the woman moved to suppress all evidence gathered from the warrantless search of her purse. Id. 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 Id. 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.

Id. at 173-74 (footnote omitted). Rather, the Court of Appeals held that the woman’s actions demonstrated that she mislaid her purse. Id. at 174. Because the woman did not voluntarily abandon her purse, the purse could not be searched without a warrant. Id.

¶32 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 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

¶33 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).

¶34 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. Samalia, 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

CONCLUSION

¶35 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.

Madsen, C.J., and Johnson, Owens, Fairhurst, and González, JJ., concur.

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. Id. (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. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (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).

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. Id.

4 We 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.

5 For purposes of this case, the Court of Appeals saw no distinction between “lost” or “mislaid” property and used the terms interchangeably. Id. at 171.

6 For 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.