The Colorado Supreme Court on Monday upheld by a 6-1 vote the suppression of evidence against a man accused of selling cocaine, saying Aspen police exceeded “permissible limits” in trying to identify who owned a cell phone.
The case against former Aspen resident Devin Schutter, believed to be the first of its kind in the state, hinged on his iPhone, whether it was considered lost and how police handled the device. Investigators were able to obtain a warrant for the home of the suspect’s mother, where they allegedly found the drug, a scale and paraphernalia, based on text messages in the phone. Schutter was later arrested.
A judge in Pitkin County District Court ruled in September 2010 that the search of the home was unconstitutional and threw out all of the evidence police had collected there.
In their ruling, the state justices said the “district court found that Schutter had not abandoned the iPhone, and even assuming it could be characterized as lost or mislaid property, the police invaded Schutter’s reasonable expectation of privacy in the contents of his phone without a search warrant or an appropriate exception to the Fourth Amendment warrant requirement.”
Schutter left behind his phone in a locked bathroom at the Shell station on Main Street in February 2008; he apparently tried to retrieve it but was told by the store clerk to come back, as the clerk was too busy. An hour or so later, after not hearing from Schutter, the clerk called Aspen police to come pick up the phone, according to the high court’s ruling.
Officer Matt Burg, shortly after retrieving the device, allegedly answered the phone when someone called looking for “Devin” or “D,” earlier court papers say.
That led police to believe that the phone belonged to Schutter, who, when he tried to get his phone from police the next day, was rebuffed. Schutter’s attorney argued that police then began looking through scores of text messages, allegedly finding drug-related messages.
But because the device could not be fairly characterized as abandoned, lost or mislaid, “the warrantless examination of its contents amounted to an unconstitutional search,” says the high court ruling; it was written for the majority by Associate Justice Nathan Coats. “The order of the district court is therefore affirmed.”
The warrant used to search the home of Schutter’s mother “relied on information discovered during an examination of his text messages, the probable cause and warrant for which relied, in turn, on several text messages read during [the] even earlier warrantless inspection of his phone,” Coats wrote.
The ruling says there was no U.S. Supreme Court opinion nor Colorado law on the matter for Chief Judge James Boyd of the 9th Judicial District to consider.
In the district court ruling last year, Coats said Boyd relied on a pre-cell-phone-era case handed down in 1993 in which “a search for the identity of the owner of lost property could be justified, if at all, only if it were permitted by a written inventory policy or if it were conducted by using the least intrusive means available, neither of which occurred in this case.”
District Attorney Martin Beeson and Chief Deputy District Attorney Arnold Mordkin filed the appeal.
The high court said their appeal urged “us to adopt the view that an otherwise reasonable expectation of privacy in personal property is diminished when that property is lost or mislaid because it is only reasonable to expect that an officer coming into possession of the property will examine it to learn how it can be returned to its owner,” Monday’s ruling said.
But the high court “need not here decide whether, and if so, to what extent, police officers may conduct a warrantless examination of property that has been lost or mislaid but not abandoned,” the ruling says.
It cites as undisputed fact that Schutter’s iPhone wasn’t lost, abandoned or mislaid “such that the Aspen police would have had any cause to identify the owner to return it.
“Whether or not he knew the defendant’s name, Officer Burg was aware from the moment the iPhone came into his possession that the defendant inadvertently left it in the store’s locked restroom and knew precisely where it was” because that is what the clerk told the officer, the ruling said. “Officer Burg also testified that it was 4:20 in the morning, and at that time, the defendant had been gone from the store for at most an hour.
“Under these circumstances, the officer had no grounds to believe the property’s safe return required the discovery of any further information.”
Mordkin said he was disappointed by the decision, which he also described as unclear. The district court ruling cited the 1993 case involving the search for an owner of lost property as possibly permissible if the agency in charge of lost-and-found items has a written policy in place. But the supreme court decision said Schutter’s iPhone wasn’t lost.
“The opinion doesn’t give us any direction on what to do in this type of situation,” Mordkin said. “A written policy wouldn’t do any good. You’ve got a policy, so what? It’s not abandoned; if it’s not, you clearly don’t have a right to peruse it, but when does that occur? That’s the seminal question left unanswered by the court.”
Linda Consuegra, assistant Aspen police chief, said the department does have in place guidelines for officers when they come across lost property that could be related to a crime. Officers are instructed to immediately stop investigating the item, consult a supervisor and get a search warrant if necessary, she said. Officer Burg is no longer with the department.
But she, too, said that the policy had little bearing on the Schutter case, as the phone was not considered lost.
“That makes it different in that aspect,” she said.
Schutter’s attorney, Kevin McGreevy, said he and his client were pleased with the decision.
“The issues of data security and data privacy are very important to developing Fourth Amendment protections,” he said.
In a brief dissent, Justice Allison Eid wrote that the phone was abandoned, and, as such, the defendant “had no legitimate expectation of privacy in [the phone’s] contents.” Schutter left the store without making arrangements with the clerk to get the phone, and neither left his name nor returned to the store later.
“By leaving the convenience store without making any arrangements for recovery of the cell phone left in a public restroom, defendant abandoned the phone,” she wrote.
Schutter, 32, is now living in the Denver area and putting “his life together in a productive way,” McGreevy said.
While Schutter still faces several other charges in Pitkin County, the cocaine distribution and possession allegations, along with that of being a habitual offender, carried the most ramifications. At one point he was facing more than 200 years in state prison.
The Colorado Supreme Court decision will not be appealed, said Mordkin, who also said “there’s no rush” to dismiss the cocaine charges against Schutter in the wake of the ruling.
“The case is so complicated,” he said. “We’re going to go through it again.”