by David Kim

The United States Court of Appeals for the Ninth Circuit held that while the abandonment doctrine applies to cellphones, courts must analyze the intent to abandon the physical device separately from the intent to abandon its data – and should not reflexively conflate the two. The Court rejected the U.S. District Court for the District of Oregon’s conclusion that the defendant abandoned his cellphone, holding that a person who drops a phone after being shot five times and flees to seek medical help does not demonstrate the requisite intent to abandon either the device or its contents.

Background

One early morning in December 2017, Dontae Hunt was talking on his black iPhone while walking near his apartment parking lot when a gunman appeared and shot him five times. Hunt dropped his iPhone and his Gucci satchel. Hunt’s girlfriend, who had accompanied him, immediately called a friend to help take Hunt to a nearby hospital. The girlfriend retrieved Hunt’s satchel but left the iPhone, which had landed near some shrubs.

When police visited Hunt at the hospital, they found him in “substantial pain.” He refused to speak with the officer about the shooting. Before leaving, the officer seized his clothing and a different, white iPhone as evidence associated with the shooting. The officer gave him a receipt for both the clothing and the white iPhone.

Police visited the crime scene and found the black iPhone near some shrubs a short distance from the shooting location. They took it into evidence as part of their investigation. No one came looking for the phone, and it remained in evidence for over two years.

In January 2020, a separate federal drug investigation led agents to file an affidavit to search several electronic devices, including the black iPhone found at the scene of Hunt’s shooting. The search produced evidence of Hunt’s drug dealing activities. Based on this evidence and other searches, prosecutors charged Hunt with several crimes, including possession with intent to distribute fentanyl analogue, conspiracy to possess with intent to distribute a controlled substance, unlawful possession of a firearm, and laundering of monetary instruments.

Hunt moved to suppress the evidence from the black iPhone, arguing the search violated his Fourth Amendment rights. The District Court denied the motion, ruling that Hunt had abandoned the black iPhone and thus lacked standing to challenge the search. Hunt was convicted, and he timely appealed.

Analysis

The Court stated that the question presented was how courts should apply the abandonment doctrine, a well-established exception to the Fourth Amendment’s prohibition against warrantless searches and seizures, to digital devices that may contain a massive trove of personal information.

The Fourth Amendment Framework for Digital Devices

The Fourth Amendment guarantees the right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Framers adopted this amendment to guard against the type of abuses experienced under British rule: “a response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Carpenter v. United States, 585 U.S. 296 (2018) (quoting Riley v. California, 573 U.S. 373 (2014)). The Fourth Amendment enshrines the founding generation’s goals to protect “‘the privacies of life’ against ‘arbitrary power’” and “to place obstacles in the way of a too permeating police surveillance.” Id.

The Court observed that as digital “technology has enhanced the Government’s capacity to encroach upon” traditionally private areas of life, the judiciary has sought to preserve “that degree of privacy against government that existed when the Fourth Amendment was adopted.” Carpenter (citing Kyllo v. United States, 533 U.S. 27 (2001)). The Supreme Court has thus warned that “[w]hen confronting new concerns wrought by digital technology,” courts must be “careful not to uncritically extend existing precedents.” Id.

Riley highlighted the unique nature of digital devices containing massive amounts of personal data, according to the Court. In Riley, the Supreme Court refused to extend the search incident-to-arrest exception to cellphones, recognizing the “substantially greater individual privacy interests” associated with the private and detailed data contained in cellphones as opposed to “a brief physical search.” That greater privacy interest stems from the vast quantity and intimate quality of data collected throughout the day and over the years. As the Supreme Court commented, “the proverbial visitor from Mars might conclude [cellphones] were an important feature of human anatomy,” given that they “are now such a pervasive and insistent part of daily life.” Id.

Cellphones can easily contain over a decade’s worth of private photographs, personal text messages to family and friends, every email sent to business associates, voicemails from years ago, and call logs documenting every call received or dialed, the Court noted. Various apps can contain a trove of personal information: web-browsing history may reveal intimate details of “an individual’s private interests or concerns”; medical apps may disclose private health information or prescription history; and financial apps can divulge purchases, bank balances, credit scores, and net worth. Indeed, “a cellphone’s ability to store vast data likely allows the government to learn more about the cellphone’s owner than would a search of the person’s entire home or every piece of mail received.” Riley.

The Abandonment Doctrine

The Court stated that under the abandonment doctrine, a person forfeits a reasonable expectation of privacy by voluntarily abandoning property. United States v. Fisher, 56 F.4th 673 (9th Cir. 2022). Abandonment goes to intent. United States v. Nordling, 804 F.2d 1466 (9th Cir. 1986). A person shows an intent to abandon a privacy interest when, given the totality of the circumstances, by “words, acts or other objective indications, [the] person has relinquished a reasonable expectation of privacy in the property at the time of the search or seizure.” Id.

Hunt urged the Court to do away with the abandonment doctrine for digital data. However, the Court declined, opting instead to “follow the reasonable expectation of privacy framework set by the Supreme Court and adapt the abandonment doctrine to account for the unique characteristics of cellphone data.”

Central to this adaptation is recognizing that someone who loses a cellphone through theft or negligence “likely does not intend to release to the public details of her personal life any more than someone who loses a house key intends to invite the public to rummage through her home,” the Court reasoned. See Riley. This house key analogy proves “particularly instructive when thinking about abandonment because the house key and the house provide the closest pre-digital functional analogue to the cell phone and its data,” the Court explained. Just as courts historically would apply the reasonable expectation of privacy principle separately to a house key and the contents of a house, courts today may need to distinguish a digital device from the data it contains to preserve the degree of privacy that existed at the time of the Fourth Amendment’s adoption.

Accordingly, the Court concluded that “the abandonment doctrine can apply to cellphone data but courts should analyze the physical phone and its data separately to determine whether the circumstances allow the conclusion that there was an intent to abandon either.” Based on the specific facts of each case, courts should analyze the intent to abandon the device separately from the intent to abandon its data – “and not reflexively conflate the two,” the Court instructed.

Application of Governing Law

The Court explained that in Fisher, the Ninth Circuit’s most analogous case, two defendants hid a cellphone and two hard drives with incriminating information between the insulation and wood framing of an attic. While in custody, the defendants sold the house with the devices still hidden inside. The Fisher Court held that the defendants had abandoned the devices when they did not recover them “before the home was sold.” Having intentionally left their devices in the home and then sold the house knowing the devices remained there, the defendants abandoned both the devices and their data.

The facts in the present case present a starkly different scenario, according to the Court. Hunt’s actions did not suggest an intent to abandon his black iPhone or its data, and the District Court committed clear error by finding otherwise, the Court held. The serious injuries caused by the shooting, and the traumatic and chaotic atmosphere afterward, suggested that Hunt likely dropped the black iPhone and did not intend to leave it behind. Hunt “likely only intended to get medical attention and flee from the shooter as soon as possible without thinking or even knowing what happened to the phone,” the Court reasoned.

The District Court had acknowledged that Hunt “may have dropped the phone in the course of being shot or fleeing” but reasoned that Hunt made no “apparent effort to secure the black iPhone” afterward. The Court stated that this reasoning was flawed because the iPhone was found in the bushes and not plainly visible. Most people “would not scour the bushes after a shooting to find a phone (assuming that Hunt even realized he had lost or dropped the phone after being shot).”

The Government also argued that Hunt abandoned the phone by not trying to retrieve it from the police. Three reasons demonstrated why Hunt may not have realized the police had the missing phone. First, Hunt claims not to remember the shooting, so he might not have known he used the black iPhone at the time or that the police had it. Second, the police seized the white iPhone from Hunt and gave him a receipt for it, so Hunt could have reasonably expected a receipt for the black iPhone if the police also had it. But no such receipt was provided. Third, Hunt reasonably could have concluded that someone other than the police picked up a valuable iPhone in a public parking lot.

Even assuming Hunt had abandoned the black iPhone by not trying to retrieve it, this would not establish he intended to abandon the data, the Court stated. Unlike the defendants in Fisher, “Hunt did not willingly sell or give away his black iPhone with all its personal data still intact.” Instead, “he simply lost the phone during a shooting.” Though he did not follow up with the police, “the record does not establish that he had reason to suspect the police collected the black iPhone from the crime scene.”

Conclusion

Accordingly, the Court reversed the District Court’s ruling that Hunt abandoned his black iPhone and held that he had standing to challenge the search of the phone’s data. However, Hunt’s Fourth Amendment claim nonetheless failed on the merits because federal agents had obtained a warrant to search the iPhone and did not hold it for an unreasonable period. See: United States v. Hunt, 153 F.4th 858 (9th Cir. 2025).  

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