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Judge: Don’t expect privacy if you leave your phone at a crime scene

If a tree falls in the middle of the woods and no one is around to hear it, does it make a sound? Sure, why not? If you leave your phone behind while you are running away from a crime scene and your name is Matthew Muller, are you entitled to a reasonable expectation of privacy? According to a California federal judge, the answer is no, reports The Sacramento Bee.

This all started in 2015 when authorities found a Samsung Galaxy phone at the scene of a home burglary in Dublin, California. Authorities were able to get the phone’s actual number using 911’s caller ID, though Verizon asked to see a warrant when police asked Big Red to find out who the number belonged to. Police managed to get a warrant within a few hours and tracked down Muller after finding out the number was registered to his stepfather.

Related: Court: Law enforcement do not need a warrant to ask carriers for your location

Interestingly, police found materials related to a separate kidnapping case while executing the arrest. In that case, Denise Huskins was kidnapped from the home of her boyfriend, Aaron Quinn, in Vallejo, California, in March 2015. Quinn was instructed to deliver $17,000 in two ransom payments to the kidnapper. Authorities believed the kidnapping story to be a hoax, since Huskins did not show up for a flight to Northern California in order to speak with the police. However, it was after the kidnapper called the Vallejo Police Department confirming the story and both Huskins and Quinn took to the media that police believed that Huskins was a victim of kidnapping. The couple are suing Vallejo officials over the ordeal.

As such, when Muller was eventually found and arrested on June 5, 2015, not only was he arrested for the burglary, but for the kidnapping as well. Muller pleaded to the burglary charge, but denied any knowledge of the kidnapping.

A reasonable expectation of privacy?

Thomas Johnson, Muller’s lawyer, wants all evidence against Muller thrown out. According to Johnson, when authorities got Muller’s phone number by dialing 911, that constituted an illegal search, particularly since Muller did not intentionally leave his phone behind. As such, it violated Muller’s Fourth Amendment right of being free of unreasonable searches and seizures. Johnson used Riley v. California as an example, since the case made it unconstitutional to search a phone without a warrant unless it was an exigent circumstance, such as abductions and bomb plots.

However, federal prosecutors do not agree with Johnson, arguing that “a burglar has no reasonable expectation of privacy in something he places in an intruded-upon house.” Furthermore, the police only used the phone to dial 911 and waited until the warrant was granted to search it, argued prosecutors. Finally, prosecutors did not believe that Riley v. California applies, since that case was concerned with the search of a phone at the time of arrest.

Related: Judge rules government can search your phone location history without a warrant

With the final say in the matter, U.S. District Judge Troy Nunley sided with the prosecutors, saying that Muller leaving the phone behind was the definition of abandonment. The judge also said that there is an exception, since the officer established exigent circumstances.

“I simply can’t buy the argument that a person violently assaults some homeowners and then goes back: ‘Can I get my phone back please?’ Assuming that it wasn’t abandoned, if this is a search, then there is an exception because the office did establish exigent circumstances,” said Judge Nunley.

Muller’s trial is scheduled for January 30, 2017.