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Experienced Denver Criminal Defense Attorney on Search and Seizure of Abandoned Property

Experienced Colorado criminal defense attorney explains a warrantless search of abandoned property – specifically an iPhone.

People v. Schutter

Synopsis: Up in Aspen, Mr. Schutter dropped by a convenience store, got a key to the restroom, used the facilities, but forgot both the key and his iPhone in the restroom. The clerk at the convenience store refused to unlock the door proclaiming s/he was simply “too busy.” Further, the clerk told Mr. Schutter to come back when s/he was not so “busy” to pick up the iPhone. By the way, this incident occurred around 3:20 a.m. Mr. Schutter did not justifiably choke, mutilate, or punish the clerk, but simply told the clerk he would be back later when the clerk had time.

In less than an hour after Mr. Schutter left the store, the clerk opened the door, grabbed the iPhone, and promptly called the cops to turn the phone over. Upon arrival, the police searched the phone by going through text messages, answering calls and snooping through other contents in the phone. To actually identify the phone, the police used their own police service, which easily identified the phone. However, based upon the text messages, the police sought and obtained a search warrant for Mr. Schutter’s home. Subsequently, the prosecution filed two felonies against Mr. Schutter – possession with intent to distribute, a class 3 felony, and possession of more than a gram (old law), a class 4 felony. The prosecution big bitched Mr. Schutter by filing three habitual criminal counts against him.

The district court suppressed all the evidence gained as a result of the warrantless search of the iPhone. Further, the District Court suppressed all the other evidence, including the evidence gained from the search of Mr. Schutter’s home, as fruit of the unconstitutional search of Mr. Schutter’s iPhone. In doing so, the District Court found that Mr. Schutter did not abandon, lose or misplace his phone. Moreover, the District Court found, even if Mr. Schutter lost, abandoned, or misplaced the phone, the police went beyond the scope of a search needed to identify the owner of the iPhone.


(1) Whether the District Court correctly found that Mr. Schutter did not abandon, lose, or misplace his iPhone?

(2) Assuming the iPhone to be lost, abandoned, or misplaced, whether the police exceeded the scope of a search necessary to locate the owner of the iPhone?

Held: The Colorado Supreme Court held that Mr. Schutter did not lose, abandon, or misplace his iPhone. Thus, the Court affirmed the District Court’s suppression order in its entirety.  The Colorado Supreme Court saved the second issue for another day.

Reasoning: Justice Coates, of all Justices, wrote the majority opinion. Justice Coats wrote simply and succinctly, that no one with a straight face could characterize property as abandoned when the owner knows where he left the property, told the clerk about the property, and stated his intentions to retrieve the property later the same day.

Justice Eid, smile and all, did characterize the iPhone as abandoned, and dissented.

*** Commentary contributed by Eric Sims Jr., Esq.***

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