Antonio Daron Futrell v. Commonwealth of Virginia

A
                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED

              Present: Judges Huff, Malveaux and Senior Judge Annunziata
              Argued by videoconference


              ANTONIO DARON FUTRELL
                                                                          MEMORANDUM OPINION* BY
              v.     Record No. 0470-20-1                              JUDGE MARY BENNETT MALVEAUX
                                                                                JULY 6, 2021
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                               Bonnie L. Jones, Judge

                               Charles E. Haden for appellant.

                               Maureen E. Mshar, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Antonio Daron Futrell (“appellant”) entered conditional guilty pleas pursuant to Code

              § 19.2-254 to attempted malicious wounding, in violation of Code §§ 18.2-26 and 18.2-51, use of a

              firearm in the commission of a felony, in violation of Code § 18.2-53.1, possession of a firearm by a

              convicted felon, in violation of Code § 18.2-308.2, and shooting into an occupied building, in

              violation of Code § 18.2-279. On appeal, he contends that the trial court erred by denying his

              motion to suppress the evidence obtained from a warrantless search of his cell phone because he did

              not disavow ownership of his cell phone and had a reasonable expectation of privacy regarding its

              contents. For the following reasons, we affirm.

                                                       I. BACKGROUND

                     On October 7, 2018, Charles Kelley was working as a private security guard at the

              “Catch N Release” restaurant in Hampton. At 1:00 a.m., as the restaurant was closing, Kelley


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
saw four individuals, including appellant, leave the restaurant. Once outside, appellant told a

waitress, “I want you to go inside and get my phone, B[itch].” The waitress told appellant, “You

don’t have to talk to me like that, but we can go inside to get your phone.” Appellant responded,

“No, you’re going to get me my phone now, B[itch].” Appellant was “very hostile” towards the

waitress. Kelley stepped in front of appellant and said, “Excuse me, all you have to do is stop,

wait a minute, and we can see if we can go inside and find your phone.”

       After Kelley told appellant that the waitress would look for his phone, appellant “became

more hostile.” Appellant, who was within two feet of the waitress, started “swinging his hands”

and was “getting ready to grab” her. Appellant turned to a companion and told him, “Go get my

shit.” The individual went to a vehicle and returned with a firearm and a magazine containing

ammunition. Kelley stepped about five feet from the individual, drew his weapon, and said,

“Please drop your weapon.” The individual put down the firearm, and Kelley backed away.

Appellant then picked up the firearm and loaded the weapon. Kelley again drew his weapon and

told appellant to drop his firearm, at which point appellant started firing his gun in Kelley’s

direction. Once appellant “started firing, he kept firing,” so Kelley returned fire and struck the

vehicle which had contained the gun. Kelley heard, “Oh shit,” and then saw appellant and the

other individual leave in the car. Kelley did not see appellant again that evening.

       While investigating the shooting, Detective Steven Rodey of the Hampton Police

Division learned that other officers had recovered a cell phone that had been left at the

restaurant. Rodey inspected the phone and found that “it wasn’t a typical phone where you can

take off the back and expose the battery, which would have the serial numbers, IME numbers,

everything attached to it.”1 Rodey pressed the power button and the phone automatically turned



       1
         Rodey testified that IME numbers are used to find the phone number associated with a
particular cell phone.
                                             -2-
on, as “[i]t was not locked with any passwords or anything.” Rodey was able to find the cell

phone’s IME and phone numbers using the “settings” feature on the phone. After finding these

numbers, the detective put the phone in “airplane mode” and returned it to the police

department’s property and evidence department. Rodey did not attempt to view call logs, text

messages, or applications on the phone. The detective did not have a search warrant when he

turned the phone on and located the IME and phone numbers.

       To find out which phone company was associated with the phone number, Detective

Rodey entered the cell phone number into “LInX,” a program that consolidates police reports

throughout the region. The program indicated that there was “some kind of association with”

appellant’s name and the cell phone number and provided a photograph of appellant. The image

was used in a photo lineup shown to Kelley, and Kelley positively identified appellant as the

shooter.

       Later, police learned of another cell phone number associated with appellant. Rodey

obtained a “realtime GPS track search warrant for” the cell phone associated with that number.

As a result of tracking the phone, police were able to locate appellant.

       Prior to trial, appellant moved to suppress “any and all evidence obtained as a result of a

search” of his cell phone. At the suppression hearing, appellant argued that the evidence

resulting from the search of the cell phone should be suppressed because a search warrant was

not obtained prior to the search of the phone, citing Riley v. California, 

573 U.S. 373

 (2014), in

support. Appellant also argued that the Commonwealth’s assertion that he abandoned his phone

and thus had no reasonable expectation of privacy in the contents of the phone was in error

because the evidence demonstrated that he had not abandoned his phone.

       The trial court denied the motion to suppress, finding that

               I agree with the Commonwealth here. I’m not finding that the
               business excluded him. The problem here is that after shooting, he
                                                -3-
               left. And I agree with the Commonwealth that he could have
               stayed and gotten his phone, but he did abandon the phone after he
               left. I’m not going to address the intervening criminal act. I’m
               going to address the fact that he left the premises, abandoning the
               phone, which then takes away his standing. I was looking at Riley,
               and I found a distinguishing fact in Riley and several of these other
               cases that in that line of cases, a cell phone was taken from the
               person, and in Riley they don’t even address abandonment. So I
               think the problem here is that once he made the decision to leave,
               didn’t come back, didn’t check with anybody to try to get the
               phone, then he had abandoned the interest in the phone. So I’m
               going to deny the motion to suppress.

This appeal followed.

                                         II. ANALYSIS

       Appellant contends that the trial court erred by denying his motion to suppress.

Specifically, he challenges the trial court’s finding that he abandoned his cell phone. He also

argues that the warrantless search of his cell phone violated the Fourth Amendment based on the

holding in Riley v. California, 

573 U.S. 373

 (2014).

       “On appeal of the denial of a motion to suppress, we view the evidence in the light most

favorable to the Commonwealth.” Jones v. Commonwealth, 

71 Va. App. 375

, 380 (2019)

(quoting Carlson v. Commonwealth, 

69 Va. App. 749

, 757 (2019)). When challenging the denial

of a motion to suppress evidence, appellant bears the burden of establishing that reversible error

occurred. Glenn v. Commonwealth, 

275 Va. 123

, 130 (2008). The issue of whether “evidence

was seized in violation of the Fourth Amendment presents a mixed question of law and fact that

we review de novo on appeal.” McCain v. Commonwealth, 

275 Va. 546

, 551 (2008). “In

making such a determination, we give deference to the factual findings of the circuit court, but

we independently determine whether the manner in which the evidence was obtained meets the

requirements of the Fourth Amendment.” 

Id. at 552

.

       The 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.
                                               -4-
“It is well-established that under the Fourth Amendment, ‘[s]earches and seizures conducted

without a warrant are presumptively invalid.’” Merid v. Commonwealth, 

72 Va. App. 104

, 112

(2020) (alteration in original) (quoting Cantrell v. Commonwealth, 

65 Va. App. 53

, 59 (2015)).

However, “the application of the Fourth Amendment depends on whether the person invoking its

protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that

has been invaded by government action.”2 Stickle v. Commonwealth, 

68 Va. App. 321

, 332

(2017) (quoting Smith v. Maryland, 

442 U.S. 735

, 740 (1979)).

       “One who voluntarily abandons property forfeits any expectation of privacy he or she

may have in it.” Commonwealth v. Holloway, 

9 Va. App. 11

, 18 (1989). As such, “the right

afforded to persons by the Fourth Amendment—to be secure against unreasonable searches and

seizures of ‘their’ persons and property—does not extend to abandoned premises or property.”

Hawley v. Commonwealth, 

206 Va. 479

, 482 (1965). “Abandonment of property by a person

under Fourth Amendment analysis ‘is different from the property law concept of abandonment.

A person may retain a property interest in personal property while, at the same time,

relinquishing his or her reasonable expectation of privacy in that property.’” Knight v.

Commonwealth, 

61 Va. App. 297

, 308 (2012) (quoting Holloway, 9 Va. App. at 18). “A

person’s intent to retain a reasonable expectation of privacy [governs] whether the property has



       2
         “In a Fourth Amendment context, protection is afforded ‘if, first, a person has exhibited
an actual, subjective expectation of privacy in the subject area and, second, if that expectation is
one that society is prepared to recognize as “reasonable.’’’” Belmer v. Commonwealth, 

36
Va. App. 448

, 455-56 (2001) (quoting Wellford v. Commonwealth, 

227 Va. 297

, 301 (1984)).
“Although the individual whose property was searched bears the burden of proving a legitimate
expectation of privacy in the item searched, the burden of proving abandonment is on the
government.” Al-Karrien v. Commonwealth, 

38 Va. App. 35

, 43 (2002). On appeal, the
Commonwealth does not assert that appellant lacked a subjective or reasonable expectation of
privacy in the “settings” area of his cell phone where the IME and cell phone numbers were
stored. Therefore, we assume without deciding that appellant met his burden in establishing that
he had both a subjective and reasonable expectation of privacy in those numbers, and decide only
whether the Commonwealth met its burden in proving that appellant abandoned the phone.
                                                 -5-
been abandoned . . . [and] is to be determined by objective standards. Such an intent may be

inferred from words, acts[,] and other objective facts.” 

Id.

 (alterations in original) (quoting

Watts v. Commonwealth, 

57 Va. App. 217

, 228 (2010)). “The determination of this intent must

be made after consideration of all relevant circumstances, but two factors are particularly

important: denial of ownership and physical relinquishment of the property.” Holloway, 9

Va. App. at 18.

       “A finding of an abandonment by the trial court is a determination which, ‘even when

arguably mixed with questions of law, is subject to attack only if clearly erroneous.’” Wechsler

v. Commonwealth, 

20 Va. App. 162

, 173 (1995) (quoting Holloway, 9 Va. App. at 19).

       Appellant argues that the evidence did not demonstrate that he abandoned his cell phone,

as he never denied ownership of the cell phone or otherwise said anything to suggest that he

disavowed ownership of it. To the contrary, appellant contends, he was prevented from

retrieving the cell phone that he sought to recover from inside the restaurant.

       We reject appellant’s argument and conclude that credible evidence supports the trial

court’s determination that he abandoned his cell phone. In the instant case, after leaving a

restaurant as it was closing, appellant told a waitress in a hostile manner to retrieve his cell

phone. After attempting to retrieve it through hostile demands, he decided to flee the area after

firing his weapon at a security guard, leaving his cell phone behind at the restaurant. See United

States v. Most, 

876 F.2d 191

, 196 (D.C. Cir. 1989) (“Abandonment may be demonstrated, for

example, when a suspect leaves an object unattended in a public place.”). Appellant did not

return to the restaurant that night to retrieve the cell phone, even though he knew where it was

located. He also began using a new cell phone after the incident. Here, while appellant did not

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




                                                 -6-
retrieve it. In total, the evidence establishes appellant’s intent to abandon the cell phone and thus

surrender any privacy interest he may have had in it or in its contents.

       Despite this evidentiary record and the trial court’s factual finding regarding

abandonment, appellant argues that we are compelled to conclude that the trial court erred in

denying his motion to suppress based on the United States Supreme Court’s ruling in Riley, 

573

U.S. 373

. In Riley, the Supreme Court held that a specific exception to the warrant requirement,

the search incident to arrest exception, does not apply to cell phones. 

Id. at 403

. In its decision,

the Supreme Court detailed the manner in which “[c]ell phones differ in both a quantitative and a

qualitative sense from other objects that might be kept on an arrestee’s person,” and thus

reasoned that individuals have a heightened privacy interest in a cell phone due to the vast

amount and type of data that may be stored on such devices. 

Id. at 393-97

. The Court also noted

that the government’s interest in searching an arrestee’s cell phone during an arrest was limited

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. 

Id. at 386, 388-91

.

Thus, the balance of interests did not support applying the search incident to arrest exception to

cell phones, and therefore “a warrant is generally required before” searching information on a

cell phone, “even when a cell phone is seized incident to arrest.” 

Id. at 386, 401

.

       Here, appellant argues that, under Riley, because his cell phone was searched without

police first having obtained a warrant, the evidence found on it should have been suppressed.

However, while Riley held that “the search incident to arrest exception does not apply to cell

phones,” it emphasized that “other case-specific exceptions may still justify a warrantless search

of a particular phone.” 

Id. at 401-02

. While the Supreme Court in Riley noted the expansive

privacy interests at stake when police search a cell phone, this heightened privacy concern is not

at issue when a suspect abandons a cell phone—that abandonment has demonstrated the

                                                -7-
suspect’s relinquishment of any privacy interest at all in the contents of the phone. Nothing in

Riley forecloses a court’s ability to consider whether a cell phone searched without a warrant has

been abandoned; thus, that decision does 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. See United States v. Small, 

944 F.3d 490

, 503 n.2 (4th Cir. 2019)

(concluding that Riley did not prohibit the finding that the abandonment of a cell phone justified

the warrantless search of the phone); see also United States v. Crumble, 

878 F.3d 656

, 660 (8th

Cir. 2018) (noting that “Riley’s holding is limited to cell phones seized incident to arrest” and

holding that the abandonment of a cell phone justified the warrantless search of that phone).

Therefore, contrary to appellant’s argument, the trial court did not err in determining that the

warrantless search of his cell phone did not violate the Fourth Amendment, despite the

heightened privacy interests regarding cell phones discussed in Riley.

       We conclude that Riley does not prevent courts from considering whether cell phones

have been abandoned for Fourth Amendment purposes. Further, in the instant case, the evidence

supported the trial court’s determination that appellant abandoned his cell phone. Thus, the

search of the phone violated no protected Fourth Amendment right.

                                       III. CONCLUSION

       We hold that the trial court did not err in denying appellant’s motion to suppress the

evidence obtained from the search of his cell phone. Accordingly, we affirm.

                                                                                          Affirmed.




                                                -8-

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