People v. SCHUTTER

¶1dissenting.

¶2Because the cell phone in this case was abandoned by the defendant, he had no legitimate expectation of privacy in its contents. See People v. Morrison, 583 P.2d 924, 926, 196 Colo. 319, 322 (1978) (no legitimate expectation of privacy in abandoned property). I therefore respectfully dissent from the majority's opinion affirming the trial court's suppression order.

¶3The defendant left the cell phone in a public restroom of a convenience store. When he could not get back into the restroom because it was locked, he spoke to the store clerk. The clerk informed him that he was too busy at the time to retrieve it, and told the defendant he would have to come back later. At that point, the defendant left the convenience store.

¶4Significantly, the defendant left the store without making any arrangements with the clerk for recovering the phone. He did not ask the clerk to retrieve the phone, nor did the clerk make such a promise. He did not inquire into when the clerk would no longer be busy. He did not leave his name or a way in which he could be contacted if the phone were retrieved. Nor did he ever return to the convenience store.1 In sum, the defendant left the convenience store despite the fact that his phone was in a public space that was only temporarily locked. See United States v. Moroney, 220 F.Supp2d 52, 57 (D.Mass.2002) (holding that defendant aban*1127doned items in public restroom when he exited restroom after being ordered to do so by police; "A [restaurant] restroom is not a private place, since clients of the restaurant often frequent the restroom and share the bathroom space with other clients, often strangers."); see also New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) ("An expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual's home."); Umited States v. Hill, 393 F.3d 839, 841 (8th Cir.2005) (finding no expectation of privacy in public restroom where officer used toolkit to unlock restroom door and subsequently discovered evidence of illegal activity). In my view, by leaving the convenience store without making any arrangements for recovery of the cell phone left in a public restroom, defendant abandoned the phone. Accordingly, I would reverse the district court's suppression order.