Supreme Court won’t hear Hampton case on warrantless search of abandoned cellphone

The U.S. Supreme Court has turned down a petition out of Hampton involving a warrantless police search of an abandoned cellphone.

The high court denied the bid by Antonio Futrell, whose lawyers asserted in June that a Hampton detective should have gotten a warrant when he opened Futrell’s phone during an investigation into a 2018 shootout.

The Supreme Court has held since 1924 that warrants are unnecessary if the item being searched is abandoned.

But though the Hampton trial judge determined Futrell’s phone was indeed abandoned — and therefore no warrant was needed — Futrell’s attorneys contended that cellphones should be an exception to the longstanding rules.

In a June petition, they asserted that because even discarded or lost cellphones contain so much sensitive information about people’s private lives, police should have to get warrants to search them.

“If you throw your phone away or discard it or trade it in, police can do whatever they want — they can access your emails, your bank records, your phone calls, text messages, photos — everything is fair game that’s on that phone,” said Brandon Boxler, a Richmond lawyer who filed the petition with Hampton attorney Charles Haden.

The attorneys also noted that the U.S. Supreme Court has already determined that cellphones are different from other searched objects. Though police can typically conduct warrantless searches of anything they seize during arrests, the high court ruled in 2014 that they need warrants for seized cellphones.

The Supreme Court justices considered taking the Hampton case at an Oct. 28 conference, the high court’s docket shows. That would have meant more filings followed by oral arguments at the Supreme Court in Washington, D.C.

Instead, the docket shows, justices denied the petition three days later. That means Futrell has reached the end of his appeals.

The denial wasn’t a surprise given that the Supreme Court hears only about 1% of petitions annually.

Still, the high court’s request for a response from the Virginia Attorney General’s Office raised hopes. A request for a response, Boxler said, raises the chances to about 6%.

“We’re disappointed the court declined to hear the case,” Boxler said Friday. “But we continue to believe it is an extremely important issue, and hope the court considers it in another case sometime in the future.”

The Hampton case stemmed from an incident in which shots were fired outside a Hampton Towne Centre restaurant on Oct. 7, 2018.

Futrell had left the Catch N Release Seafood Bar and Grill after closing time when he realized he left his phone inside.

But employees wouldn’t let him back in to get it. Court documents say Futrell argued with a waitress and security guard before he fired shots toward the guard outside. The security guard fired back — with no one hit as Futrell and a friend sped away.

The next day, court documents say Hampton Detective Steve Rodey got the phone from other officers. He opened the device — which wasn’t password protected — without a warrant, saying he used it only to find the phone number in the settings.

Court documents say Rodey entered that number into a police database, quickly finding Futrell’s picture. The detective included that picture in a photo spread, and the security guard picked out Futrell as the man who shot at him.

Later, Hampton Circuit Court Judge Bonnie L. Jones determined Futrell had indeed abandoned the device. “He made the decision to leave, didn’t come back, didn’t check with anybody to try to get the phone,” she said at a hearing in 2019.

Futrell entered a “conditional guilty plea” to malicious wounding and three gun charges, allowing him to challenge the convictions on the assertion that police violated his constitutional rights by searching the phone without a warrant.

Jones sentenced him to five years behind bars, and he was released from custody in August after serving that time.

In the response to the June petition by the Attorney General’s Office, the state contended that U.S. Supreme Court review “is unwarranted” because Jones’ decision — upheld by the Virginia Court of Appeals and Virginia Supreme Court — “was correct.”

“It is fully consistent with this Court’s Fourth Amendment jurisprudence, especially given the lack of a password on the phone and the extremely limited nature of the search,” the response from the Attorney General’s Office said.

Moreover, the Attorney General’s Office said, the case was a “poor vehicle” for the U.S. Supreme Court to take up the issue, given that Futrell’s phone wasn’t password protected.

“A case in which the digital contents of an abandoned phone were protected by a password would be a far superior vehicle to consider whether a person abandons his reasonable expectations of privacy,” the response said.

But Boxler responded in a court filing that Futrell’s case was a perfect one to consider the issues at stake.

“Futrell’s conviction rises or falls on the abandonment issue,” he wrote. “It is difficult to imagine a better vehicle for the question presented.”

The fact that Futrell’s phone wasn’t password protected, Boxler asserted, was actually a reason for the high court to hear the case rather than a reason not to.

“It highlights the confusion and conflict among lower courts,” Boxler wrote, saying that some lower courts have recognized the password distinction and others have not.

As cellphones and related cloud storage systems only increase in usage, Boxler contends, the issue isn’t going away.

It’s “a genuine issue” that’s dividing courts, he said Friday. “They’re gonna have to take it up at some point.”

Peter Dujardin, 757-247-4749, pdujardin@dailypress.com