The PA Superior Court recently decided the case of Commonwealth v. Kane, No. 864 EDA 2018 (May 9, 2019), holding that police did not need a warrant to take possession of – and search – Kane’s cell phone after he intentionally and voluntarily left it in a public bathroom, even though he intended to return and retrieve it at a later time.

A female student at Villanova University discovered a smart cell phone in a co-ed bathroom. The cell phone was behind a “wet floor” sign, and was actively video recording the toilet area, capturing the activities of men and women using the toilet. The phone was turned over to police who conducted a forensic examination of the cell phone, and identified Kane as the owner of the cell phone. After speaking with Kane, police charged him with numerous counts of Invasion of Privacy.

Kane filed a Motion to Suppress the evidence found after the warrantless search of his cell phone by police. This Motion was denied by the trial court which concluded that Kane “intentionally and volitionally left his cell phone unattended, powered on and recording in a dormitory bathroom” and, therefore, “relinquished his expectation of privacy in his cell phone.” Kane was subsequently convicted of the Invasion of Privacy charges after a non-jury trial.

On appeal to the Superior Court, Kane argued that the warrantless search of his phone violated his constitutional rights under Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution. Further, he argued that he did not abandon his cell phone because he intended to come back to the cellphone and retrieve the video, and that, nevertheless, “the privacy interest is in the cell phone, not in the location or the use of the cell phone.” In response, the Commonwealth asserted that Kane “had no objective expectation of privacy in the cell phone which society would recognize when he left it turned on and recording in a public bathroom.”

The Superior Court disagreed with Kane’s argument, noting that “[t]he constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances.” And, when Kane “intentionally and voluntarily left his cell phone in a public bathroom he did not have a reasonable expectation of privacy in his cell phone. Once Kane voluntarily abandoned his cell phone in a public bathroom, he abandoned any legitimate expectation of privacy in its contents. Likewise, he abandoned standing to complain of a search or seizure of that cell phone.”

To put a finer point on the abandonment issue, the Court stated that the “issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had 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, the Superior Court held that the trial court did not err when it concluded that Kane did not have a reasonable expectation of privacy, and the denial of Kane’s Motion to Suppress the warrantless search of his cell phone was, therefore, proper.



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