Richardson v. State

Anthony J. Richardson v. State of Maryland, No. 46, September Term, 2021. Opinion by Biran, J. CONSTITUTIONAL LAW – FOURTH AMENDMENT – ABANDONMENT – After a school resource officer broke up a fight in which Petitioner was involved, Petitioner’s backpack dropped from his body to the ground. Petitioner reached for the backpack, but the officer picked up the backpack before Petitioner could do so. Without a further word, Petitioner fled the scene.

The Court of Appeals held that, in these circumstances, Petitioner relinquished his reasonable expectation of privacy in his backpack and therefore abandoned it for purposes of the Fourth Amendment. Thus, the officer was permitted to search the backpack without a warrant. CONSTITUTIONAL LAW – FOURTH AMENDMENT – PARTICULARITY – CELL PHONE SEARCH WARRANT – When the officer searched Petitioner’s backpack, he discovered, among other things, a firearm and three cell phones. Police eventually obtained a warrant to search one of those cell phones.

The Fourth Amendment mandates that a search warrant must “particularly describ[e] the place to be searched, and the persons or things to be seized.” Here, even considering the incorporated supporting affidavit, the warrant to search the cell phone did not include any temporal limitation, it did not limit the contents or types of files on the cell phone that could be accessed and searched, and it contained no search protocols limiting how the officers could search for the evidence of the crime at issue. Instead, it contained catchall language that authorized officers to search everything on the phone. The Court of Appeals held that the search warrant violated the Fourth Amendment’s particularity requirement, and thus was invalid. CONSTITUTIONAL LAW – FOURTH AMENDMENT – GOOD FAITH EXCEPTION – The Court of Appeals held that the police officers acted reasonably in relying on the search warrant for Petitioner’s cell phone.

The incorporated supporting affidavit could reasonably be read to limit the search to evidence of the crime of robbery. In the absence of a decision of this Court stating that such a warrant would not satisfy the particularity requirement, the officers did not act unreasonably in relying on the warrant. Circuit Court for Prince George’s County IN THE COURT OF APPEALS Case No. CT18-1622X Argued: March 3, 2022 OF MARYLAND No. 46 September Term, 2021 ANTHONY J. RICHARDSON v. STATE OF MARYLAND *Getty, C.J. Watts Hotten Booth Biran Battaglia, Lynne A. (Senior Judge, Specially Assigned) McDonald, Robert N.

(Senior Judge, Specially Assigned), JJ. Opinion by Biran, J. Filed: August 29, 2022 *Getty, C.J., now a Senior Judge, participated in the hearing and conference of this case while an active member of this Court. After being recalled Pursuant to Maryland Uniform Electronic Legal Materials Act pursuant to Maryland Constitution, Article IV, (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Section 3A, he also participated in the decision 2022-08-29 12:00-04:00 and adoption of this opinion.

Suzanne C. Johnson, Clerk Chief Justice John G. Roberts observed in Riley v. California that modern cell phones are akin to powerful “minicomputers.”1 Because today’s smartphones contain information touching on “nearly every aspect” of a person’s life, “from the mundane to the intimate,” an unfettered search of a cell phone by law enforcement will “expose to the government far more than the most exhaustive search of a house.”2 In Riley, the Supreme Court considered the privacy implications of widespread smartphone use for one of the exceptions to the Fourth Amendment’s warrant requirement, a search incident to arrest. The Court concluded: 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. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.[3] The privacy concerns implicated by cell phone storage capacity and the pervasiveness of cell phones in daily life do not fade away when police obtain warrants to search cell phones.

In the case before us here, police did obtain a warrant to search a suspect’s cell phone. One of the questions we must decide in this case is whether that warrant complied with the Fourth Amendment’s requirement to describe with particularity 1 Riley v. California, 573 U.S. 373 , 393 (2014). 2 Id. at 395-96 (emphasis deleted). 3 Id. at 403 (cleaned up). “the place to be searched, and the persons or things to be seized” 4 or whether it was, in effect, a “general warrant” that allowed police to engage in the type of exploratory rummaging that led the Founders to adopt the protections of the Fourth Amendment. After a school resource officer broke up a fight in which Petitioner Anthony J. Richardson was involved, Richardson’s backpack dropped from his body to the ground. The officer and Richardson reached for the backpack simultaneously; the officer picked it up before Richardson could do so.

Richardson then ran from the scene. Soon afterwards, the officer opened the backpack. Among its contents were a firearm, three cell phones, and Richardson’s school ID card. Further investigation established that one of the phones in Richardson’s backpack had been stolen in a robbery three days earlier.

The police connected one of the other phones in the backpack to the perpetrators of that robbery, after which they obtained a warrant to search that cell phone. The warrant authorized the officers to search for “[a]ll information, text messages, emails, phone calls (incoming and outgoing), pictures, videos, cellular site locations for phone calls, data and/or applications, geo-tagging metadata, contacts, emails, voicemails, oral and/or written communication and any other data stored or maintained inside of [the phone].” After he was charged in the Circuit Court for Prince George’s County with armed robbery and other offenses, Richardson moved to suppress the fruits of the warrantless search of his backpack and of the warranted search of the cell phone. The circuit court denied Richardson’s suppression motion as to both searches, and Richardson entered a 4 U.S. CONST. amend. IV. 2 conditional guilty plea under which he preserved his right to appeal the circuit court’s adverse suppression rulings.

The Court of Special Appeals affirmed the circuit court’s denial of Richardson’s suppression motion. As discussed below, the warrantless search of Richardson’s backpack was permissible because Richardson abandoned the backpack before the officer searched it. With respect to the search of the cell phone, we conclude that the warrant failed to comply with the particularity requirement of the Fourth Amendment because it authorized investigators to search everything on the phone. However, based on the detailed information about the specific crime under investigation that was contained in the affidavit submitted as part of the application for the search warrant, which was incorporated into the warrant itself, we conclude that the officers reasonably relied on the warrant in executing the search of the cell phone.

Thus, the good faith exception to the exclusionary rule applies to the fruits of the cell phone search. For this reason, we affirm the judgment of the Court of Special Appeals. I Background A. The Search of the Backpack On September 28, 2018, a large fight broke out behind Crossland High School in Temple Hills, Maryland. Corporal Myron Young of the Prince George’s County Police Department, who served as a school resource officer at Crossland, responded to a call about the fight.

When he arrived on the scene, Corporal Young saw approximately 30 students engaged in the melee. A young man later identified as Richardson was “throwing punches” 3 with other students when Corporal Young intervened. Corporal Young was familiar with most of the students at Crossland High School, but he did not recognize Richardson, who, it turned out, attended a different high school. Corporal Young grabbed another young man who was trying to punch Richardson from behind, effectively ending the fisticuffs in which Richardson specifically was involved.

As Richardson got up from the ground, a backpack strapped across his body fell to the ground. Richardson and Corporal Young reached for the backpack at the same time, but it was Corporal Young who picked it up. Corporal Young thought it was suspicious that Richardson tried to grab the bag, instead of focusing on the other young men who were still fighting nearby. After Corporal Young picked up the bag, Richardson immediately fled the scene at “full speed.” Had Richardson not fled, Corporal Young would have detained him, as well as the other person with whom Richardson had been fighting.

When Corporal Young picked up the backpack, he noticed that the “bag had a decent amount of weight to it,” and he “suspected that there was most likely a weapon in the bag.” Within one or two minutes of his picking up the bag and Richardson’s flight, Corporal Young opened the backpack. He did not pat the backpack down before opening it. In the backpack, Corporal Young saw a silver and gray Smith & Wesson semiautomatic handgun. He also found an identification card for Richardson associated with a different school, three cell phones, and some cash, among other items.

Based on his review of Richardson’s school ID card, Corporal Young was able to positively identify Richardson as the person he saw drop the backpack and flee. 4 B. The Police Connect Richardson to an Armed Robbery. One of the cell phones found in Richardson’s backpack was a Rose Gold iPhone 8+ that subsequently was determined to have been stolen from Jonathan James-Parks in an armed robbery in District Heights, Maryland, on September 25, 2018. James-Parks had arranged to buy a PlayStation 4 from a seller on the mobile marketplace application “letgo.” When he arrived at a pre-arranged meeting point to complete the purchase, a man asked James-Parks if he was “Jonathan.” When James-Parks said he was, another individual came out from a concealed location wearing a mask, pointed a handgun at James-Parks, and demanded that James-Parks hand over his property. James-Parks gave the robber his iPhone and his wallet containing approximately $140 in cash, debit cards, and other items.

The two assailants fled the scene, and James-Parks reported the robbery to police. James-Parks gave police the letgo account information for the person who had agreed to sell him the PlayStation 4. One of the other phones in Richardson’s backpack was a T-Mobile Space Gray iPhone SE with an International Mobile Equipment Identity (“IMEI”5) number of 356600080434043 (the “T-Mobile iPhone SE”). Police sent a message to the letgo account that the purported seller of the PlayStation 4 had used to communicate with James-Parks. 5 Regarding an IMEI number, one wireless carrier advises customers: “Think of [the IMEI number] as your phone’s fingerprint – it’s a 15-digit number unique to each device.

Phone carriers and manufacturers share IMEI numbers to enable tracking of smartphones that may be stolen or compromised.” What to Understand About IMEI Numbers, Verizon Wireless, Aug. 25, 2021, available at https://perma.cc/HN7B-UW98. 5 The T-Mobile iPhone SE then produced an alert that it had received a message via the letgo application. C. The Warrant to Search the T-Mobile iPhone SE On October 12, 2018, Detective M. Lembo6 of the Prince George’s County Police Department applied for a warrant to search the T-Mobile iPhone SE. In the section of Detective Lembo’s supporting affidavit titled “PROBABLE CAUSE (FACTUAL BASIS),” Detective Lembo included the information described above about the armed robbery of James-Parks on September 25. Detective Lembo also provided an account of the fight at Crossland involving Richardson on September 28, as well as Corporal Young’s recovery of the backpack and the handgun and cell phones that were in it, including the Rose Gold iPhone 8+ and the T-Mobile iPhone SE.

Detective Lembo further wrote in the affidavit that, “[w]hile in possession of the T-Mobile Space Gray iPhone SE IMEI: 356600080434043 a message was sent to the suspect LetGo account by [another detective]. The T-Mobile Space Gray iPhone SE IMEI: 356600080434043 then produced an alert that it had just received a message via the LetGo application.” Detective Lembo continued: This Detective believes that the T-Mobile Space Gray iPhone SE IMEI: 356600080434043 could contain text messages, emails, phone calls (incoming and outgoing), pictures, videos, cellular site locations for phone calls, data and/or applications, geo-tagging metadata, contacts, emails, 6 Only the first letter of Detective Lembo’s first name is included in the warrant materials. 6 voicemails, oral and/or written communication and any other data stored within the cell phone that are related to the [crime7]. In the section of the affidavit entitled “JUSTIFICATION FOR THE PLACE TO BE SEARCHED AND ITEMS TO BE SEIZED,” Detective Lembo wrote: Your affiant knows that when crimes are committed by more than one person, the individuals committing the crime communicate in advance to plan the crime. When cellular phones are used, certain information is generated and stored in the cellular phone, including call records, text messages, video messages, and picture messages.

Furthermore, the call records can created [sic] connections between co-conspirators by showing the contact and communication they have leading up to the crime. Finally, the contact lists maintained in the phone can show a connection between the phone number whose records are being analyzed and a suspects [sic] being investigated. Next, in the “DESCRIPTION OF THE ITEMS TO BE SEIZED,” Detective Lembo sought approval to seize “[a]ll information, data, photographs, videos, detail logs, contact 7 Detective Lembo included an apparent typographical error at this point in the affidavit. Detective Lembo referred to the crime as “carjacking,” but there was no carjacking mentioned in the affidavit.

Rather, Detective Lembo only described the armed robbery of Jonathan James-Parks. In describing his duties elsewhere in the affidavit, Detective Lembo stated that he “investigates citizen armed robberies, shootings, and carjacking.” A plausible explanation for this error in identifying the crime under investigation as carjacking is that Detective Lembo drafted the affidavit for this search warrant using an earlier affidavit involving a carjacking as a template, and inadvertently retained a reference to “carjacking” in this affidavit. It appears Detective Lembo made a similar error earlier in the affidavit when writing that there was probable cause to believe that “there is property subject to seizure under the laws of this State and more particularly in violation of Annotated Code of Maryland Section CR-3.405(b)1.” Section 3-405(b) of the Criminal Law Article prohibits carjacking. Richardson did not argue in the circuit court, nor has he argued on appeal, that the erroneous references to carjacking in the affidavit rendered the search warrant defective or otherwise provide any basis for suppression of the evidence obtained in the search of the T-Mobile iPhone SE. 7 lists, and call histories maintained inside of T-Mobile Space Gray iPhone SE IMEI: 356600080434043[.]” (Line break omitted.) A Judge of the Circuit Court for Prince George’s County noted that the affidavit was subscribed and sworn in his presence on October 12, 2018.

On the same date, the same Judge signed a search warrant directed to Detective Lembo stating: Upon reviewing the Application and the accompanying Affidavit of Detective M. Lembo #3821, Prince George’s County Police Department, which is incorporated into this Warrant, I find there exists probable cause to issue this Search and Seizure Warrant. You are therefore commanded with the necessary and proper assistants to search forthwith the following place, person, and/or motor vehicle and seize the following specified items: 1. You shall conduct a search on the place, person, and/or motor vehicle located at: T-Mobile Space Gray iPhone SE IMEI: 356600080434043 You shall seize the following items, evidence, and/or contraband: All information, text messages, emails, phone calls (incoming and outgoing), pictures, videos, cellular site locations for phone calls, data and/or applications, geo-tagging metadata, contacts, emails, voicemails, oral and/or written communication and any other data stored or maintained inside of T-Mobile Space Gray iPhone SE IMEI: 356600080434043. The warrant further instructed the officers: Upon execution of this Warrant, you shall leave an inventory of the items seized, together with a copy of this Warrant, Application, and supporting Affidavit (unless previously sealed by court order) with the person from whom the items are seized, or with the person in charge of the premises, or if neither of those persons is present, then in a conspicuous place on the premises. 8 D. Additional Investigation Police obtained documents from letgo, which indicated that the letgo account associated with the purported seller of the PlayStation 4 was registered to Malicai Hezekiah Grant.

James-Park subsequently identified Grant as the person who asked him if he was Jonathan, prior to the masked assailant threatening him with a handgun and demanding that he hand over his property. James-Park also identified the Rose Gold iPhone 8+ found in Richardson’s backpack as his own, and told the police that the handgun found in Richardson’s backpack looked like the one that was used to rob him. The search of the T-Mobile iPhone SE revealed text messages between Richardson and Grant discussing and planning robberies through use of the letgo app. Police extracted approximately 6,000 pages of material from the T-Mobile iPhone SE.

On December 20, 2018, Richardson was indicted in the Circuit Court for Prince George’s County on charges of armed robbery with a dangerous weapon, assault in the first degree, use of a firearm in the commission of a felony, possession of a regulated firearm by a person under 21, and related offenses. E. The Suppression Hearing and Conditional Guilty Plea Richardson moved to suppress evidence discovered in the warrantless search of the backpack and in the warranted search of the T-Mobile iPhone SE. At the motions hearing, Richardson argued that the warrant to search the cell phone constituted a forbidden general warrant because it permitted police to search and seize “any and all information” and “any and all data.” He also argued that the good faith exception to the exclusionary rule was inapplicable because “the warrant is so lacking [in] particularity that [an] officer would not 9 be able [to] reasonably rely on it[.]” The State argued that the warrant was valid under the Fourth Amendment. The State then called Corporal Young as a witness.

Corporal Young testified about the fight at Crossland and Richardson’s immediate flight from the scene after Corporal Young picked up the backpack. Richardson did not call any witnesses. Richardson’s attorney argued that Corporal Young unlawfully searched the backpack, and that Richardson did not abandon it when he ran away. The circuit court credited Corporal Young’s testimony and denied Richardson’s motion.

The court ruled that Corporal Young lawfully searched the backpack, and, alternatively, that Richardson abandoned the backpack when he ran away. The court also denied Richardson’s motion to suppress the fruits of the cell phone search, rejecting Richardson’s argument about the “alleged defect in the [search] warrant.” On September 18, 2019, Richardson entered a conditional guilty plea to conspiracy to commit robbery and wearing, carrying, and transporting a handgun. Richardson preserved his right to appeal the circuit court’s denial of his suppression motion. The court subsequently sentenced Richardson to four years of imprisonment, all but one year suspended (to serve on home detention), on the conspiracy count.

The court sentenced Richardson to three years on the handgun charge, all suspended, consecutive to the sentence on the conspiracy count. F. Appeal The Court of Special Appeals affirmed the circuit court’s denial of Richardson’s motion to suppress. Richardson v. State, 252 Md. App. 363 (2021). The court held that 10 Richardson abandoned the backpack, as Richardson did not retain “any reasonable expectation of privacy in the backpack” when he fled the area.

Id. at 383 . Thus, the court held, the warrantless search of the backpack did not violate the Fourth Amendment. See id. Having held that the Fourth Amendment did not apply to the search of the backpack because Richardson had abandoned it, the Court of Special Appeals did not address Richardson’s arguments concerning Corporal Young’s alleged lack of reasonable suspicion to search the backpack.

Regarding the cell phone search warrant, the Court of Special Appeals opined that the warrant met the particularity requirement of the Fourth Amendment, based on the court’s conclusion that “the detailed, particularized facts provided in the application and affidavit were incorporated into the search warrant[.]” Id. at 390 . The intermediate appellate court also held that, even if the search warrant did not pass Fourth Amendment muster, the good faith exception to the exclusionary rule applied because “the application and affidavit as incorporated into the search warrant issued by the court contained sufficient particularized facts for an officer to objectively and in good faith rely on the finding of probable cause by a detached, neutral magistrate.” Id. at 392 . On October 4, 2021, Richardson filed a petition for a writ of certiorari, seeking review of the following questions, which we rephrase slightly: 1. Did the motions court improperly deny the motion to suppress the fruits of the warrantless search of Richardson’s backpack? a.

Where an officer picked up Richardson’s bag and searched it immediately after the bag fell off Richardson’s person and Richardson reached to reclaim it, did the Court of Special Appeals err in ruling that Richardson abandoned the bag 11 because, when the officer reached for the bag at the same time and picked it up first, Richardson ran away? b. Assuming that the bag was not abandoned, did the motions court err in ruling that the search of the bag was lawful where the officer failed to articulate an objectively reasonable basis for believing Richardson was armed and dangerous? c. Assuming there was reasonable suspicion to believe that Richardson was armed and dangerous, did the officer impermissibly open the backpack without patting it down first, where, inter alia, the officer insufficiently explained why he skipped a pat-down, and the State did not introduce the backpack itself (or a photograph of it)? 2. Did the motions court improperly deny the motion to suppress the fruits of the search of the T-Mobile iPhone SE found inside the backpack? a.

Despite being conducted pursuant to a warrant, did the search of the cell phone violate the particularity requirement of the Fourth Amendment because, in relevant part, the warrant authorized the search and seizure of “[a]ll information … and any other data stored or maintained inside” the phone? b. Did the Court of Special Appeals err in concluding that the warrant for the phone satisfied the particularity requirement because it incorporated the search warrant application and accompanying affidavit in support of it? c. Did the Court of Special Appeals err in concluding that even if the warrant was defective, the fruits of the search of the phone were still admissible under the good-faith doctrine? On November 10, 2021, we granted the petition.

Richardson v. State, 476 Md. 418 (2021). 12 II Standard of Review The validity of a suppression ruling is a mixed question of law and fact. State v. Carter, 472 Md. 36, 54 (2021). This Court’s review of a circuit court’s denial of a motion to suppress evidence is “limited to the record developed at the suppression hearing.” Pacheco v. State, 465 Md. 311, 319 (2019) (internal quotation marks and citation omitted). We assess the record “in the light most favorable to the party who prevails on the issue that the defendant raises in the motion to suppress.” Norman v. State, 452 Md. 373, 386 (2017).

We accept the trial court’s factual findings unless they are clearly erroneous. Carter, 472 Md. at 54-55 . “The ultimate determination of whether there was a constitutional violation, however, is an independent constitutional evaluation that is made by the appellate court alone, applying the law to the facts found in each particular case.” Id. at 55 (internal quotation marks and citation omitted). We review any questions of law de novo, without any special deference to the views of the lower courts. Id.

III Discussion The Fourth Amendment of the United States Constitution guarantees “[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

The Fourth Amendment also provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id. 13 The Supreme Court has often said that “‘the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Riley v. California, 573 U.S. at 381-82 (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). “It remains a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment ̶ subject only to a few specifically established and well-delineated exceptions.” California v. Acevedo, 500 U.S. 565, 580 (1991) (internal quotation marks and citations omitted). Evidence obtained in violation of the Fourth Amendment will ordinarily be inadmissible under the exclusionary rule. Thornton v. State, 465 Md. 122, 140 (2019). However, the “significant costs” of the exclusionary rule have led the Supreme Court to deem it “applicable only ... where its deterrence benefits outweigh its substantial social costs.” Carter, 472 Md. at 55 -56 (quoting Utah v. Strieff, 579 U.S. 232, 237 (2016)).

The Supreme Court has recognized several exceptions to the exclusionary rule, including the good faith doctrine. See United States v. Leon, 468 U.S. 897 (1984). Under the good faith exception, evidence will not be suppressed under the exclusionary rule if the officers who obtained it acted in objectively reasonable reliance on a search warrant. Id. at 922-24 .

A. The Warrantless Search of Richardson’s Backpack Fourth Amendment protection from a warrantless search does not extend to property that has been abandoned by its owner. Stanberry v. State, 343 Md. 720, 731 (1996) (citations omitted). “By abandoning property, the owner relinquishes the legitimate expectation of privacy that triggers Fourth Amendment protection.” Id. In assessing whether property has been abandoned, “[f]irst, we ask whether the individual, by his 14 conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that he sought to preserve something as private.” Bond v. United States, 529 U.S. 334, 338 (2000) (cleaned up). And “[s]econd, we inquire whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.” Id.

(cleaned up). The test for abandonment of property in a search and seizure context under the Fourth Amendment is distinct from the property law concept of abandonment. 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.6(b) (6th ed. 2020, Dec. 2021 update) (citations omitted). In the law of property, “the question is whether the owner has … relinquished his interest in the property so that another, having acquired possession, may successfully assert his superior interest.” Id. However, “[i]n the law of search and seizure … 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 the Fourth Amendment.” Id.

(citation omitted). Thus, a person can retain a property interest in an item but at the same time relinquish their reasonable expectation of privacy in it. Id. “Although the Fourth Amendment abandonment inquiry focuses on the property owner’s actual expectation of privacy, a subjective question, courts must frequently rely on objective indications of the owner’s intent.” Stanberry, 343 Md. at 732 ; see also United States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000) (“Because this is an objective test, it does not matter whether the defendant harbors a desire to later reclaim an item; we look solely to the external manifestations of his intent as judged by a reasonable person possessing the same knowledge available to the government agents.”). A property owner’s 15 “intent may be inferred from words spoken, acts done, and other objective facts….

All relevant circumstances existing at the time of the alleged abandonment should be considered.” Duncan v. State, 281 Md. 247, 265 (1977) (citation omitted). In Stanberry, this Court enumerated several specific considerations for determining whether property was abandoned, including: 1) “the location of the property and … whether the area is secured”; and 2) “whether the owner requested a third party to watch or protect the property.” 343 Md. at 733 . In this case, the objective facts indicate that Richardson intended to relinquish his privacy interest in the backpack when he fled the scene. After Corporal Young picked up the backpack, Richardson did not say anything to Corporal Young.

He did not ask Corporal Young to hold on to the backpack for him until things calmed down in the area. He did not say he had to go, but would be back in a few minutes. He did not ask Corporal Young why he had picked up the backpack. He did not say, “That’s mine, please give it back to me.” Richardson did none of those things, nor did he say or do anything else after Corporal Young picked up the backpack to suggest that he intended to return to the scene and retrieve the backpack at a later time.

Rather, as soon as he saw that Corporal Young had the backpack, Richardson ran off at “full speed.” Richardson knew he had not left the backpack in a secure location or in the care of a person who understood that he intended to return for it later.8 At that point, in light of what had just transpired, Richardson reasonably 8 On this point, compare United States v. Most, 876 F.2d 191, 192, 196-97 (D.C. Cir. 1989) (defendant did not abandon his bag, where he left it with store clerk after asking her to hold it for him before he left), with United States v. Nowak, 825 F.3d 946, 948-49 (8th Cir. 2016) (defendant held to have abandoned his backpack in the passenger seat of 16 understood that someone would look through the backpack, if for no other reason than to try to determine to whom it and its contents belonged. It is true that, before Corporal Young picked up the backpack, Richardson indicated that he wanted to retain possession of the backpack – and his expectation of privacy in its contents – by reaching for it. Based on this circumstance, Richardson contrasts this case with other abandonment cases in which individuals, upon seeing police, discarded objects while fleeing. This is a distinction without a difference.

Richardson’s initial expression of intent to maintain his privacy interest in the backpack did not set that intent in stone. Richardson’s subsequent flight showed that he changed his mind. See Hawley v. Commonwealth, 144 S.E.2d 314, 315-17 (Va. 1965) (holding that the defendant abandoned his car in a motel parking lot when, after telling the manager that he would return in three or four days, the defendant did not do so and the car was still there when police were summoned more than a week later). A person’s intent to maintain their expectation of privacy in an object can change in a matter of days, as apparently was the case in Hawley, or in a few seconds, as occurred here.

Richardson also attempts to distinguish this case from other abandonment-by-flight cases on the basis that, here, the flight followed a thwarted attempt to retain his property.9 his friend’s car when he fled the car following a traffic stop, and where he did not ask the friend to store or safeguard the backpack for him, but instead said nothing at all, “leaving the backpack behind and leaving [the friend] ‘amazed’ at [his] flight”). 9 In the trial court and before us, Richardson has conceded that Corporal Young did not unlawfully seize the backpack merely by picking it up from the ground. Nor do we 17 But this distinction, too, is immaterial. When someone sees a police officer, runs off, and discards an object while on the move, it is clear that the person, until the moment of discarding, manifested an intent to maintain their expectation of privacy in the object. The fact that Richardson manifested his pre-flight intent by reaching for his backpack, rather than by maintaining continuous possession of the backpack, is of no moment.10 In sum, despite Richardson’s initial reach for his backpack after it fell, we hold that Richardson relinquished all reasonable expectation of privacy in the backpack when he fled the scene.

It follows that Richardson abandoned his backpack before Corporal Young searched it, and that the circuit court correctly denied Richardson’s motion to suppress evidence based on the warrantless search of the backpack.11 perceive, based on the record established at the motions hearing, that Corporal Young “meaningfully interfered” with Richardson’s possessory interest in the backpack merely by picking it up. See United States v. Jacobsen, 466 U.S. 109, 113 (1984); see also United States v. Va Lerie, 424 F.3d 694, 706 (8th Cir. 2005) (“Because seizure is defined as some meaningful interference with an individual’s possessory interests in his property, not all police interference with an individual’s property constitutes a Fourth Amendment seizure, i.e., the police do not seize property every time they handle private property.”). At the moment he picked up the bag, Corporal Young did not objectively indicate to Richardson that he (Corporal Young) intended to retain the backpack. By not asking Corporal Young to return the backpack and instead immediately fleeing, Richardson forewent the opportunity to learn what Corporal Young would have done with the backpack if Richardson had asked him to return it. 10 Richardson also notes that he fled only after being assaulted and while other fights were still in progress nearby.

To the extent he argues that this circumstance undermines the trial court’s finding that he abandoned the backpack, we disagree. Corporal Young came to Richardson’s defense upon his arrival at the scene, after which the fighting in Richardson’s immediate area “pretty much stopped.” If Richardson was concerned about his safety, he could have remained with Corporal Young until all fighting came to an end. 11 Because Richardson abandoned the backpack, Corporal Young’s subsequent search of the backpack did not implicate the Fourth Amendment. Accordingly, like the 18 B. The Cell Phone Search Warrant 1. The Search Warrant Did Not Comply with the Fourth Amendment’s Particularity Requirement.

To comply with the Fourth Amendment, a search warrant: (1) must be based on probable cause; (2) must be supported by oath or affirmation; and (3) must describe with particularity “the place to be searched, and the persons or things to be seized.” U.S. CONST. amend. IV; Groh v. Ramirez, 540 U.S. 551, 557 (2004). The search warrant that the officers executed on the T-Mobile iPhone SE complied with the first two of these requirements: it was based on probable cause, and it was supported by a sworn affidavit. However, it failed the particularity requirement. a.

The Particularity Requirement The particularity requirement of the Fourth Amendment protects against general and overbroad warrants that leave the scope of the search to the discretion of law enforcement. See, e.g., State v. Jennings, 942 N.W.2d 753, 768 (Neb. 2020); see also Maryland v. Garrison, 480 U.S. 79, 84 (1987) (“The manifest purpose of [the] particularity requirement was to prevent general searches”; this “requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.”); United States v. George, 975 F.2d 72, 75 (2d Cir. 1992) (particularity requirement prohibits police from “indiscriminate[ly] rummaging through citizens’ personal effects”). Court of Special Appeals, we will not address Richardson’s other contentions concerning the search of the backpack. 19 As alluded to at the outset of this opinion, the emergence of the modern cell phone as an omnipresent aspect of American life has presented challenges for the application of the Fourth Amendment that were previously unknown: Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.

They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy…. Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read – nor would they have any reason to attempt to do so.

Riley v. California, 573 U.S. at 393-94. The Court observed that the storage capacity of cell phones and the “apps” that provide “tools for managing detailed information about all aspects of a person’s life,” combined with the pervasiveness of cell phones in American society, made it “no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate.” Id. at 395. These considerations, among others, led the Supreme Court to hold in Riley that imposing the requirement to obtain a warrant before searching a cell phone incident to arrest was necessary as a “meaningful constraint,” id. at 399, on the power of law enforcement officers to intrude on the “privacies of life” for many Americans. Id. at 403 (internal quotation marks and citation omitted). 20 “Vigilance in enforcing the probable cause and particularity requirements is … essential to the protection of the vital privacy interests inherent in virtually every modern cell phone and to the achievement of the ‘meaningful constraints’ contemplated in Riley.” Burns v. United States, 235 A.3d 758 , 773-74 (D.C. 2020) (quoting Riley, 573 U.S. at 399).

Courts are “obligated – as ‘subtler and more far-reaching means of invading privacy have become available to the Government’ – to ensure that the ‘progress of science’ does not erode Fourth Amendment protections.” Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018) (quoting Olmstead v. United States, 277 U.S. 438, 473-74 (1928) (Brandeis, J., dissenting)). The particularity requirement is usually not difficult to apply in the “physical world.” See Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 VAND. L. REV. 585, 598 (2016) (“Gershowitz”). For example, if police officers apply for a search warrant based on testimony from an informant that a suspect is involved in drug trafficking without specifying the location where the illegal activity is occurring, a judge should not automatically issue warrants for the suspect’s home, office, car, and person.

See id. (“Absent some limitation curtailing the officers’ discretion when executing the warrant, the safeguard of having a [judicial officer] determine the scope of the search is lost.”) (citing George, 975 F.2d at 76 ). Instead, in that situation, the judge “should demand more information about where the narcotics are likely to be found so that the search warrant can be tailored to a particular location where there is probable cause to believe narcotics will be located.” Id. 21 The particularity requirement is arguably of even greater importance in the context of computers and smartphones than it is in the physical world, given the ability of smartphones to store “millions of pages of text, thousands of pictures, or hundreds of videos,” Riley, 573 U.S. at 394, and of computers to store much more still. See United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009) (“The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s