SACRAMENTO, Calif.—Attorney Thomas Johnson came ready to defend a novel legal theory in court.
Earlier this year his client had abandoned a Samsung Galaxy phone at a burglary crime scene, which allowed authorities to find the device, call 911 from the lock screen, and acquire the phone’s actual number. Law enforcement soon determined the phone’s owner, Matthew Muller, and arrested him days later.
But while executing that arrest, authorities found materials related to a separate kidnapping case reported earlier in the year. The kidnapping case was a wild and harrowing account.
A Vallejo woman and her boyfriend were bound with zip-ties and made to wear blackened swimming goggles.
The man was instructed to send $15,000 to secure her release, while she was eventually driven to her hometown in Southern California and released two days later.
As the Sacramento Bee reported, investigators initially believed that the kidnapping story that the couple told was a hoax—until the victims spoke out in public and the kidnappers contacted the Vallejo Police Department to insist the story was authentic.Muller eventually pleaded guilty to the burglary, but he denied any role in the kidnapping.
And according to his attorney Johnson, this whole thing should have been avoided. When law enforcement grabbed the Samsung Galaxy and acted on that fateful day, the attorney believes they engaged in an unconstitutional search against his client.
However, a federal judge disagreed with Johnson on Thursday. “I don’t think this is a very difficult issue,” US District Judge Troy L. Nunley told the court after hearing oral arguments from the defense lawyer and from government prosecutors. Judge Nunley denied Johnson’s attempt to suppress evidence that stemmed from Muller’s arrest and his attempt to seek an evidentiary hearing.
“Based on everything I’ve heard, the defense can’t reasonably claim that [Muller] didn’t abandon the phone,” the judge continued. “He intruded into someone else’s house, commits an act of violence on one of the members of that residence, and leaves his cell phone.
I think it stands to reason… it makes common sense that he wasn’t going back to the house, and even if it was that suggests the exigence that the government was worried about.
It stands to reason that the defense wasn’t going back to the house, and it is well settled that a fleeing criminal has no reasonable expectation of privacy in materials he discards while fleeing.”
Leaving a phone behind isn’t abandoning it?
In court, Johnson made an impassioned plea on behalf of his client—himself a former lawyer—and presented a two-pronged argument.
Firstly, he said, Muller did not abandon the phone during the March 2015 burglary at the home of the Yen family in Dublin, California.
Therefore, so the logic goes, Muller did not revoke his privacy interests in it.
Secondly, there was no exigency exception because the burglary was over, Muller had fled, and there was no more risk to the family or anyone else. But because of the warrantless 911 call from Muller’s seized phone, Johnson’s client was arrested and accused of a separate kidnapping crime.
Johnson primarily argued that previous case law with respect to questions of abandonment do not address this specific situation.
Those cases, he claimed, have to do with situations where suspects made an affirmative decision to ditch an object as they were being pursued by police. Here, he said, just because Muller accidentally left the phone in the pitch black house he was trying to burglarize doesn’t mean that Muller abandoned it.
“It is a terribly difficult decision that the court has to make today because of the consequence of the government’s case,” Johnson said, casting the issues in broad terms. “Muller’s Fourth Amendment case and his rights under the US Constitution take precedence over the magnitude of this case.”
To bolster his case, Johnson relied on his interpretation of the landmark 2014 Supreme Court decision known as Riley v.
California, which unanimously found that law enforcement could not warrantlessly search a phone incident to arrest barring exigent circumstances.
“We don’t contend that he had an expectation of privacy in the house, we are asking the court to find that he had an expectation of privacy in the phone,” the defense attorney argued. “When you circle back to Riley v.
California, there is specific language when it talks about what phones are to Americans these days.”
An Alameda County Sheriff’s Office report on the burglary was included with earlier court filings.
In it, Sgt.
Christopher Shepard described the scene as relatively calm when he arrived: officers stood on the porch of the Dublin family’s home, took statements, and began to look for clues.
“So whatever is in Shepard’s report now is what you would write if you had to justify searching a phone,” Johnson argued in the Thursday hearing. “But even the way he writes it is a thin excuse for exigency. We at least have a right to test that exigency in an evidentiary hearing.”
Johnson also focused on the fact that it took 15 minutes from the time the officer discovered the phone until he decided to place the 911 call and determine the phone’s number.
“Is it a search? It is absolutely a search,” Johnson continued. “Anytime you activate a phone and go inside that phone, you are searching it.
If an act produces evidence, that’s a search.
It’s no different than someone peering inside a window.”
From lawyer to burglar and alleged kidnapper
In court, Muller appeared in shackles, wearing an Sacramento County Jail orange jumpsuit and black, thick-rimmed glasses.
During the hearing, he stared straight ahead towards the judge. He did not speak at all during the proceedings.
He has an impressive pedigree: Muller is a former United States Marine, and an alumnus of Harvard Law School. He worked as an immigration lawyer in California from 2011 until he was disbarred in 2015.
At one point in time, Muller was even dubbed as one of the country’s “techiest” lawyers by the ABA Journal.
After Johnson presented his defense, Assistant United States Attorney Heiko Coppola addressed the court and rebutted each of Johnson’s points. He said that case law supports the proposition that one cannot assert privacy rights “in a place that you had no lawful right to be. Make no mistake, Muller had no lawful right to be in the Yen’s residence.”
And Coppola made clear that Muller did in fact abandon his phone.
“He struck Mr. Yen in the face, drawing blood and then he fled to avoid being shot or caught—more importantly, he never came back,” Coppola said. According to police reports, Chung Yen told his wife Lynn to “go get the gun.”
“There was no evidence that [Muller] was thinking about anything other than not getting caught,” Coppola added. “There’s simply no case authority that stands for that proposition.
Clearly he had an opportunity to come back and the reason he didn’t come back was because he would have gotten caught.”
Citing the same police report, Coppola said that while there was no immediate threat to the Yen family once the officers arrived, it was reasonable to assume that the burglar had not gotten far, may still be armed, and may still be interested in burglarizing other homes.
“Those are sufficient facts to justify exigency in this case,” he said.
Coppola went further, pointing out that Riley was not applicable here as it had to do with search of a phone at the time of an arrest.
By contrast, Muller was not arrested until days later.
And when the phone was actually searched properly (not just the 911 call), law enforcement sought and received a search warrant.
Johnson next had a chance to briefly rebut, saying that the defense disputed the exigency. Ultimately, Judge Nunley knocked down Johnson’s arguments one-by-one.
First off, while Muller wasn’t fleeing the police, “he was fleeing from an angry homeowner,” the judge said. Judge Nunley added that leaving the phone behind was the “very definition of abandonment.”
“I simply can’t buy the argument that a person violently assaults some homeowners and then goes back: ‘Can I have the phone back please?’ Assuming that it wasn’t abandoned, if this is a search, then there is an exception because the officer did establish exigent circumstances.”
Muller is set to go to trial on January 30, 2017.