State v. Samalia

¶1 Brown, J. Adrian Samalia appeals his conviction for possessing a stolen motor vehicle. He contends the trial court erred by denying his CrR 3.6 motion to suppress evidence leading to his identification derived from a cell phone found in an abandoned stolen vehicle after he fled from the vehicle and evaded pursuit. Because the cell phone was abandoned, used in pursuit of the fleeing suspect, and not directly used to identify Mr. Samalia, we hold the trial court did not err in denying suppression of his later identification from a police database. Accordingly, we affirm. FACTS ¶ 2 The facts are derived mainly from the trial court’s unchallenged CrR 3.6 findings of fact that are, therefore, verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Yakima Police Officer Ryan Yates was on patrol when his vehicle license plate reader indicated he had passed a stolen vehicle. Officer Yates confirmed the vehicle was stolen by radio and then followed the vehicle, 227 which stopped shortly thereafter. The driver got out of the vehicle and faced Officer Yates. The driver would not obey Officer Yates’ command to get back in the vehicle and fled. Officer Yates pursued the male driver, but he got away. ¶ 3 Officer Yates returned and searched the car, partly to help identify the driver. He found a cell phone on or in the center console. Not knowing whom the phone belonged to, he called some phone numbers found in the cell phone’s contacts section. He spoke to Deylene Telles, who agreed to meet him. Officer Yates reported to his sergeant what happened and gave the phone to him. The sergeant met with Ms. Telles and called her cell phone from the abandoned cell phone. Her cell phone displayed Mr. Samalia’s name and picture. The sergeant gave the name to Officer Yates, who located Mr. Samalia’s picture in a police database. Officer Yates then identified Mr. Samalia from the database picture as the fleeing man who had been driving the stolen vehicle. ¶ 4 The State charged Mr. Samalia with possession of a stolen motor vehicle. He moved unsuccessfully to suppress the cell phone evidence under CrR 3.6. From the above facts, the trial court concluded the cell phone was abandoned and, therefore, Mr. Samalia no longer had an expectation of privacy in it. Following a bench trial, the court found Mr. Samalia guilty as charged. He appealed.' ANALYSIS ¶ 5 The issue is whether the trial court erred by denying Mr. Samalia’s CrR 3.6 motion to suppress evidence obtained from his cell phone. He contends the evidence was constitutionally protected and could not be accessed without a warrant. ¶ 6 We review a trial court’s decision on a motion to suppress to determine whether the findings are supported by substantial evidence and whether those findings, in turn, support the conclusions of law. O’Neill, 148 Wn.2d at 228 571. We defer to the trier of fact on “issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). As previously mentioned, unchallenged findings of fact are verities on appeal. O’Neill, 148 Wn.2d at 571. We review conclusions of law de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). ¶ 7 Under Washington Constitution article I, section 7, “[n]o person shall be disturbed in his private affairs . . . without authority of law.” Our Supreme Court recently held private affairs include information obtained through a cell phone. State v. Hinton, 179 Wn.2d 862, 877, 319 P.3d 9 (2014). Additionally, the Supreme Court of the United States recently noted, “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Riley v. California,_U.S. _, 134 S. Ct. 2473, 2494-95, 189 L. Ed. 2d 430 (2014) (citation omitted) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746 (1886)). ¶ 8 A warrantless search violates article I, section 7 unless it falls under one of “ ‘a few jealously guarded exceptions.’ ” State v. MacDicken, 179 Wn.2d 936, 940, 319 P.3d 31 (2014) (quoting State v. Afana, 169 Wn.2d 169, 176-77, 233 P.3d 879 (2010)). ¶ 9 Searching voluntarily abandoned property is an exception to the warrant requirement. State v. Evans, 159 Wn.2d 402, 407, 150 P.3d 105 (2007); see also State v. Reynolds, 144 Wn.2d 282, 287, 27 P.3d 200 (2001) (law enforcement may retrieve and search voluntarily abandoned property without a warrant or probable cause). “Voluntary abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent.” Evans, 159 Wn.2d at 408 (citing 1 Wayne R. LaFave, Search 229 and Seizure § 2.6(b) at 574 (3d ed. 1996)). “ ‘Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered.’ ” Id. (quoting State v. Dugas, 109 Wn. App. 592, 595, 36 P.3d 577 (2001)). The question is whether the defendant relinquished his reasonable expectation of privacy by discarding the property. Id. The defendant bears the burden of showing he had an actual, subjective expectation of privacy and his expectation was objectively reasonable. Id. at 409. ¶ 10 A critical factor in determining whether abandonment has occurred is the status of the area where the searched item was located. State v. Hamilton, 179 Wn. App. 870, 885, 320 P.3d 142 (2014). “Generally, no abandonment will be found if the searched item is in an area where the defendant has a privacy interest.” Id. Here, the search area was an unattended stolen vehicle that Mr. Samalia had been driving and had fled from when a police officer approached and directed him to return to the vehicle. A suspect’s hasty flight under these circumstances is sufficient evidence of an intent to abandon the vehicle. See United States v. Tate, 821 F.2d 1328, 1330 (8th Cir. 1987) (suspect who fled unlocked vehicle parked on public road abandoned expectation of privacy); see also Kurtz v. People, 177 Colo. 306, 494 P.2d 97, 103 (1972) (items seized from vehicle were admissible based on the abandonment of the vehicle, the flight of the accused from the scene on foot, and the fact the accused remained at large at the time of the search), overruled on other grounds by People v. Howard, 198 Colo. 317, 599 P.2d 899 (1979). Thus, the status of the area searched shows abandonment. We conclude Mr. Samalia did not have a privacy interest in the searched area. fll We next look to the reasonableness of the officer’s actions and Mr. Samalia’s intent. Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged 230 abandonment should be considered. Evans, 159 Wn.2d at 408. The question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of article I, section 7. ¶ 12 Officer Yates spotted and followed a stolen vehicle until it stopped. The driver saw the officer, ignored instructions to remain in the vehicle, fled, and evaded pursuit. The officer reasonably returned to the vehicle to search for evidence of the driver’s identity and to continue his pursuit. Mr. Samalia’s flight from the stolen vehicle under these circumstances shows his intent to abandon the vehicle, including its contents. ¶ 13 Citing Hinton and Riley, Mr. Samalia incorrectly argues a warrant is always required to search a cell phone. In Hinton, police confiscated a cell phone from an arrestee. 179 Wn.2d at 865. The cell phone received calls and messages at the police station leading to Mr. Hinton’s arrest and controlled substance conviction. The Hinton court held, “We find that the officer’s conduct invaded Hinton’s private affairs and was not justified by any authority of law offered by the State.” Id. at 870. The Riley Court concluded the search incident to arrest exception to the warrant requirement does not apply to digital data on a cell phone in an arrestee’s possession. Riley, 134 S. Ct. at 2493-94. But, the Riley Court reasoned, “[0]ther case-specific exceptions may still justify a warrantless search of a particular phone.” Id. at 2494. Specifically, the Riley Court noted the “well-recognized” exigency exception, “to pursue a fleeing suspect,” as a case that may excuse a cell phone search warrant. Id. ¶ 14 Mr. Samalia’s case is distinguished from Hinton and Riley because the cell phone was not seized from Mr. Samalia’s person during his arrest but was found abandoned in a stolen vehicle. Voluntarily abandoned property is an exception to the warrant requirement. Evans, 159 Wn.2d at 407. The use of the cell phone in Mr. Samalia’s case 231 comes within both the Evans abandonment exception and the exigency exception to pursue a fleeing suspect recognized in Riley. Moreover, the use of Mr. Samalia’s cell phone was attenuated because the cell phone information used to get his name came from Ms. Telles’ cell phone, not the abandoned cell phone, and the officer used the name to identify Mr. Samalia from existing police records. Further, the police were unsure who owned the abandoned cell phone. ¶ 15 Given our reasoning, we conclude the officer did not require a warrant to use the abandoned cell phone in the manner described here. Further, a warrant was unnecessary under Riley because the abandoned cell phone was used to pursue the fleeing suspect. Finally, the use of the abandoned cell phone was too attenuated because the information leading to Mr. Samalia’s identification in a police database came in the form of a name appearing on Ms. Telles’ cell phone. Therefore, we hold the trial court did not err in denying Mr. Samalia’s CrR 3.6 suppression motion concerning his identification. Given our analysis, we do not reach the State’s arguments concerning standing, ownership of the cell phone, and the State’s right to impound the stolen vehicle. ¶ 16 Affirmed. Korsmo, J., concurs.