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Digital-privacy group backs carjacker’s Supreme Court appeal

Cellphones should not be treated like garbage, a digital-privacy group stated Friday in urging the U.S. Supreme Court to hear the appeal of a man who led police on a high-speed car chase into Fort Meade before being convicted of carjacking with the help of information officers found on the phone he had abandoned during the pursuit.

In papers filed with the justices, the Electronic Frontier Foundation said the Anne Arundel County police violated Dontae Small’s constitutional rights by searching his phone’s contents without a warrant even though he had essentially thrown the device away while trying to elude them.

EFF stated that, due to the voluminous personal information that individuals store on their phones, people cannot be deemed to have forfeited their right to keep that data protected from unwarranted searches even when they discard their phones.

The distinction the foundation drew between discarded phones and common refuse is significant because the Supreme Court has held that police do not need a search warrant to go through the garbage people leave outside their homes or in dumpsters.

EFF said the Supreme Court’s 1988 holding in California v. Greenwood – that people have no reasonable expectation of privacy in the garbage they place for collection – does not apply to cellphones.

“(C)ellphones contain more, and more varied, information than anything one could find in the trash left outside of a person’s home,” wrote Jennifer Lynch, the San Francisco-based foundation’s counsel of record before the high court.

“While trash, too, contains clues to people’s most private traits and affairs, the trash left outside one’s home is limited by the size of a bag or trash bin and by the nature of items left in the trash,” Lynch added. “Cellphones have no such limits; instead the storage capacity of the average cellphone has more than quintupled (since 2014), and phones contain more detailed information than one could ever find in a bag of trash.”

The 4th U.S. Circuit Court of Appeals rejected a similar Fourth Amendment argument from Small’s counsel last year in upholding his carjacking conviction and prompting his request for review by the Supreme Court. The U.S. Department of Justice, which prosecuted Small, has waived its right to respond to his request.

The justices are scheduled to consider Small’s petition for review at their private conference Friday. The case is docketed at the high court as Dontae Small v. United States, No. 19-1102.

According to testimony at Small’s trial, Brandon Rowe had just parked his silver Acura a block away from the Federal Hill house he shared with his fiancée when he was accosted on Oct. 4, 2015, by three masked men, including one who pointed a gun at his face and demanded he hand over everything he had.

Rowe surrendered his car keys but refused to give the masked men his house keys. His assailants patted him down but found nothing of value and let him go, according to testimony.

Three days later, the Acura was spotted in the Arundel Mills mall parking lot via a security camera. Police then waited for the driver – who turned out to be Small — to return. When Small got behind the wheel at about 8:50 p.m., an officer pulled his squad car behind the Acura.

But Small drove away, eventually speeding through the outbound gate at Fort Meade, about five miles from the mall, and then through a fence surrounding the National Security Agency facility before crashing down an embankment. Small discarded his shirt, a hat and his cellphone.

Small ran and hid, prompting the police to search his phone and call someone identified on the device as “Sincere my Wife.”

Sincere, later identified as Kimberly Duckfield, said the phone belonged to her husband, Dontae Small. Police obtained a photo of Small, which matched the image on the mall’s security camera.

Police caught Small at 10 the next morning as he emerged from a sewer.

A U.S. District Court jury in Baltimore convicted Small of carjacking, conspiracy to commit carjacking and destruction of government property. Small, who was sentenced to 27 years in prison, appealed to the 4th Circuit, challenging the sufficiency of the carjacking evidence and the constitutionality of the search of his cellphone.


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