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Maryland high court will weigh ‘abandoned’ bags, cellphone warrants

Appeal addresses Fourth Amendment issues

Maryland’s top court has agreed to consider whether a person who chooses to run from his backpack – rather than continue to reach back for it – after a law enforcement officer has grabbed it has “abandoned” the bag, thereby enabling the police to search it without a warrant.

In the same case, the Court of Appeals will also weigh the level of specificity constitutionally required in a warrant to search a person’s cellphone.

The high court stated last week that it will address these constitutional issues in hearing the appeal of Anthony J. Richardson.

Richardson pleaded guilty to conspiracy to commit robbery and carrying a handgun after the weapon and cellphone were found in the backpack he dropped and which was instantly recovered by a high school resource officer in Temple Hills.

Richardson’s conditional plea enabled him to appeal the search of his backpack and cellphone as having been conducted in violation of his Fourth Amendment protection against unreasonable searches.

The Court of Appeals will hear the appeal early next year and is expected to issue its decision by Aug. 31. The case is docketed at the high court as Anthony J. Richardson v. State of Maryland, No. 46, September Term 2021.

In his successful request for high court review, Richardson stated through counsel that he had not truly abandoned his backpack, as evidenced by his reaching back for it before seeing it in officer Myron Young’s possession.

Because the backpack was not abandoned, the officer needed either Richardson’s consent, a warrant or reasonable suspicion that Richardson was armed in order to search it, none of which the officer had, wrote Assistant Maryland Public Defender Michael T. Torres.

“The proper test for abandonment” is whether the defendant “retains a reasonable expectation of privacy in the articles alleged to be abandoned,” Torres wrote, quoting from the Court of Appeals’ 1977 decision in Venner v. State.

The high court “should review this case to explore the applicability of the abandonment doctrine when, as here, a person expresses an intent to continue possessing property and runs away only when police take possession of the property first,” Torres added.

With regard to the cellphone, Torres stated, the search warrant was unconstitutionally broad in that it sought “all information” including “any other data stored or maintained inside” the phone, potentially unlocking the entirety of Richardson’s stored life without the particularity required of warrants under the Fourth Amendment.

“In light of the potential problems associated with cellphone warrants, courts across the country have underscored that warrants for cellphones must concretely limit what police may search and how they may search for it,” Torres wrote. “Although Maryland has not directly spoken on the matter, numerous courts around the country have invalidated warrants for cellphones (and other computer devices) that have permitted the search and seizure of ‘any and all’ stored data and information.”

In the state’s failed request that the high court deny review, Assistant Maryland Attorney General Derek Simmonsen argued that Richardson’s bolting from the backpack was a clear sign of abandonment.

“Richardson’s flight at full speed demonstrated his relinquishment of any expectation of privacy,” Simmonsen wrote. “It would be unreasonable under the circumstances to assume that Richardson planned to return for the bag, given that he was last seen running from a school that he did not attend.”

Simmonsen also argued that the search warrant was sufficiently limited and not an any and all request for data, as the sworn application for the warrant noted the search was for information related to Richardson’s suspected involvement in a robbery. That succinct affidavit was incorporated into the search warrant, Simmonsen added.

According to court papers, Young was attempting to break up a fight among 30 students in the back parking lot of Crossland High School on Sept. 28, 2018, when Richardson stood up amid the melee and his backpack fell to the ground.

Young and Richardson reached for the bag, which the officer snagged.

Richardson, who was not a Crossland student, ran from the campus and Young opened the bag, in which he found the gun and cellphone. The search of the cellphone revealed text messages in which Richardson discussed having participated in the armed robbery of a man earlier that day.

Richardson entered his conditional guilty plea in Prince George’s County Circuit Court.

The intermediate Court of Special Appeals in September upheld the guilty plea, saying Richardson had abandoned his backpack and that the warrant for the cell phone was sufficiently specific regarding what items were to be searched.

Richardson then sought review by the Court of Appeals.