[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-12143

________________________

D.C. Docket No. 2:12-cr-00092-JES-DNF-1

UNITED STATES OF AMERICA, 

Plaintiff - Appellee,

versus

ALAN ROBERT JOHNSON, 

Defendant - Appellant. 

________________________

No. 14-12075

________________________

D.C. Docket No. 2:12-cr-00092-JES-DNF-2

UNITED STATES OF AMERICA, 

Plaintiff - Appellee,

versus

JENNIFER A. SPARKS, 

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Defendant - Appellant.

________________________

Appeals from the United States District Court

for the Middle District of Florida

________________________

(December 1, 2015)

Before MARTIN and ROSENBAUM, Circuit Judges, and COOGLER,* District 

Judge.

ROSENBAUM, Circuit Judge: 

Defendant-Appellants Alan Robert Johnson and Jennifer A. Sparks’s day did 

not start well for them. They left their cell phone at a Walmart store. But this 

wasn’t just any cell phone; Johnson and Sparks’s phone stored hundreds of images 

and videos of child pornography that they had made using Sparks’s friend’s fouryear-old child—and Johnson was already a registered sex offender. So Defendants 

must have felt pretty relieved when they learned that Linda Vo, an employee of the 

Walmart where Defendants left their phone, had found it and that she agreed to 

return it. 

But Vo decided to look at the contents of the phone, which were not 

password-protected, after speaking with Sparks and before actually meeting her. 

Upon discovering the images of child pornography, Vo resolved not to return the 

 

* Honorable L. Scott Coogler, United States District Judge for the Northern District of 

Alabama, sitting by designation.

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phone. Instead, unbeknownst to Defendants, she arranged for it to be turned in to 

law enforcement.

When Vo failed to meet Sparks with the phone as the two had previously 

agreed, Defendants knew how to find Vo to get their phone back. But Defendants 

did not return to their Walmart store and look for Vo. Nor did they ask for 

Walmart’s assistance in obtaining their phone, found in its store, by its employee. 

They also did not file a report with Walmart or the police complaining that Vo 

would not return their phone, despite their requests. Instead, they made a 

conscious decision to stop pursuing the phone, even though they knew how to get 

it back with reasonable effort.

That decision—whether because Defendants hoped that Vo would not report 

them if they did not continue to seek the phone or because Defendants simply 

thought recovery of the phone was not worth their reasonable effort—can be 

viewed only as a deliberate decision to abandon the phone. Because Defendants 

abandoned their phone within three days of having lost it, they lack standing to 

challenge law enforcement’s 23-day delay between recovering the phone and 

obtaining a search warrant to search it. 

As for searches conducted within the three-day period before Defendants 

abandoned their interest in the phone, we find no reversible error in the district 

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court’s denials of Defendants’ suppression motions. We also deny Johnson’s 

challenges to his sentence.

I.

Johnson and Sparks were indicted by a grand jury for possession of child 

pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(b), (b)(2), and 2 (Count 1), 

and for production of child pornography, in violation of 18 U.S.C. §§ 2251(a), (e) 

and 2 (Counts 2 and 3). Both Johnson and Sparks moved to suppress evidence. 

Following an evidentiary hearing, a United States magistrate judge 

submitted a report to the district court recommending that the district court deny 

the motions to suppress.1

 After reviewing a transcript of the testimony and hearing 

argument before the magistrate judge, the district court held a supplemental 

hearing to resolve conflicting testimony proffered by six witnesses during the 

initial hearing before the magistrate judge. The district court ultimately denied the 

motions to suppress. 

Johnson and Sparks each then pled guilty to Count 2 under plea agreements 

that reserved each’s right to appeal the denial of the motions to suppress. Johnson 

was sentenced to 600 months’ imprisonment after the district court applied the 

statutory enhancement set forth in 18 U.S.C. § 2251(e) based on Johnson’s prior 

 

1 Johnson also filed a motion to suppress statements, which the court addressed at that 

same hearing and subsequently denied. Johnson does not appeal its denial.

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federal convictions for distribution and possession of child pornography. Sparks 

was sentenced to 360 months’ imprisonment. 

Johnson and Sparks now appeal the denial of their motions to suppress. 

Additionally, Johnson appeals the application of the statutory enhancement to his 

sentence.

II.

2

A. The Private Search

Both Johnson’s and Sparks’s convictions, and this appeal, can be traced to 

an HTC smart phone that they mistakenly left at a Walmart store located in Cape 

Coral, Florida, on or about June 4, 2012.3

 Linda Vo, a Walmart employee, found 

the phone. 

After Sparks sent a text message that she describes as having “urgently 

requested” the return of the phone, Vo called the number indicated in the text 

message.

4

 During the ensuing conversation, Sparks made a peculiar request of Vo, 

asking her not to turn the phone over to customer service but instead to hold onto it 

until Sparks could pick it up directly from Vo.

 2 Where factual conflicts in the record exist, we take our facts from the district court’s 

factual findings. See infra at Section III.B.1.

3 Sparks maintains that the phone was left at Walmart two days earlier, on June 2, 2012. 

The disagreement over the date on which the phone was lost does not affect our analysis.

4 As the district court noted, what Vo did with the phone is not entirely clear because Vo 

was not called as a witness at the evidentiary hearings. Vo’s then-fiancé and now-husband, 

David Widner, did testify, and his testimony provided most of the basis for what is known about 

Vo’s actions.

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After making arrangements to return the phone, Vo looked at digital 

photographs stored in a photo album on the phone, apparently in an attempt to 

identify the woman to whom she was planning to return the phone. The phone was 

not password protected, so Vo was able to access the content stored on the phone. 

She discovered what Widner later described as “questionable” images. Vo told

Widner that she had seen some “pretty weird” pictures involving a young girl who

was sometimes nude. Widner decided to look at the pictures himself to determine 

whether the phone should be turned over to the police. 

Vo showed him the images on the cell phone and told him about a video 

that was also stored on the phone. In the phone’s photo-album application, Vo 

accessed a screen that displayed several smaller “thumbnail” images. Vo scrolled 

through the album as Widner looked on, and Widner was able to see in thumbnail 

format all of the images contained within the album. Vo then showed Widner a 

full-size image in which three prepubescent girls stood naked in the middle of a 

room in what Widner thought was a posed and sexually suggestive manner. 

Widner also testified that Vo showed him another full-size image that focused on a 

young girl’s nude vaginal area and stomach, which was covered in a substance that 

appeared to be semen. After Vo finished showing Widner the images, Vo gave 

Widner the cell phone to take to law enforcement.

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B. The Warrantless Police Search

On June 4, 2012, Widner took the phone to the Fort Myers Police 

Department (“FMPD”).

5

 When he arrived, he first spoke with a Community 

Service Aide (“CSA”)6 named Cassie Coleman, who had been stationed at the 

front booth. Widner stated that he wanted to file a report about cell-phone images 

that he believed to be child pornography. He scrolled through the entire album he 

had previously viewed with Vo to show Coleman the photos he thought were 

questionable, but as soon as he located one and handed the phone to Coleman, the 

phone’s battery died, and the phone turned off. 

Widner then charged the phone at the FMPD. While the cell phone was 

recharging, CSA Sarah Gallegos and CSA trainee Amanda Janetzke introduced 

themselves to Widner, and Widner explained how he had come to possess the 

phone. 

Once the cell phone was sufficiently charged, Widner scrolled through it to 

show Gallegos and Janetzke the images he believed constituted child pornography. 

In doing this, Widner scrolled through the entirety of the album in thumbnail form, 

pausing several times to show Gallegos and Janetzke full-size images. Gallegos 

remembered some of the specific images that Widner showed her, including the 

 5 Originally, Widner brought the phone to the Lee County Sheriff’s Office in downtown 

Fort Myers. That Sheriff’s Office instructed him to take the phone to the FMPD. 6 CSAs are civilians, but for purposes of its Fourth Amendment analysis, the district court 

treated CSAs as government officials. 

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image of the young naked female child with what appeared to be semen on her 

stomach. Widner also showed Gallegos a video of a young girl eating ice cream. 

While Widner displayed the images to Gallegos and Janetzke, text-message 

notifications appeared on the screen. No CSAs or FMPD personnel opened the 

text-message application or read the text messages during this encounter. Gallegos 

called Vo about the phone, and she advised Gallegos that a woman had been 

sending text messages to the found phone, insisting that she needed the phone back 

immediately. Vo did not know the woman’s last name or other identifying 

information.

Gallegos and Janetzke contacted Detective-Sergeant Brian O’Reilly to notify 

him that the cell phone that Widner had brought to the station contained images of 

a pornographic nature involving children. Gallegos then gave the cell phone to 

O’Reilly and showed him some of the images that Widner had shown her. 

O’Reilly viewed the images himself to verify that, in fact, child pornography was 

on the phone. In addition to the images that Gallegos showed O’Reilly, O’Reilly

briefly looked at two videos that were stored within the same album. One of the 

videos was that of the girl eating ice cream, which Widner had previously viewed. 

Widner had not watched the second video. As for the images that O’Reilly 

surveyed, O’Reilly looked at only those images contained within the same album 

that Widner had viewed.

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After concluding that the phone contained child pornography, O’Reilly 

turned the phone off and submitted it to evidence. He then contacted the Cape 

Coral Police Department, since, by that time, it had been established that Vo had 

found the phone at the Walmart located in Cape Coral, not Fort Myers. O’Reilly 

instructed Gallegos to prepare an offense report so that he could take the report and 

the cell phone to the Cape Coral Police Department. 

On June 5, 2012, O’Reilly logged the cell phone out of evidence and 

delivered it to the Cape Coral Police Department. He informed the Cape Coral 

Police Department that the phone had been found at a Walmart located in Cape 

Coral and that it contained images of child pornography. 

C. The Application for and Execution of the First and Second Search 

Warrants

On June 7, 2012, Agent Patricia Enterline, a police officer employed by the 

Cape Coral Police Department who had been assigned to the Federal Bureau of 

Investigation’s (“FBI”) Innocent Images Task Force (“Task Force”), received a 

phone call as she was about to board a plane to attend training in another city. The 

call was from Sergeant Steve Barnes, the sergeant in charge of the major-crimes 

unit of the Cape Coral Police Department. Barnes told Enterline that she was 

assigned to a case involving a cell phone that may or may not contain child 

pornography. He also explained that the cell phone was found at a Walmart and 

turned in to law enforcement. 

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Enterline was the only Cape Coral Police Department officer assigned to the 

FBI Task Force. In Enterline’s absence, the three other Task Force officers who 

might have been available to investigate the cell phone were not able to check the 

cell phone out of the Cape Coral Police Department evidence room. 

Enterline returned from her training late Friday night, on June 8, 2012, and 

left for another scheduled training class located in Maryland on Sunday, June 10, 

2012. She got back from that training on Saturday, June 16, 2012. On Monday, 

June 18, 2012, Enterline checked the cell phone out of the Cape Coral Police 

Department evidence room and transferred it to the FBI. For the rest of that day, 

Enterline was working with an Assistant United States Attorney on another case. 

The next day, June 19, 2012, Enterline removed the cell phone’s protective case to 

procure the cell phone’s serial number. When she did that, she found three small 

pieces of paper, none of which provided information regarding ownership of the 

cell phone. Enterline did not pursue a search warrant on June 19, 2012, because 

she was leaving the next day for additional training on the other side of the state. 

When Enterline returned from her training on June 26, 2012, she attempted 

to contact O’Reilly and a state-court judge, but she was unable to reach either. On 

June 27, 2012, Enterline prepared an application for a search warrant and a

supporting affidavit for the cell phone. To do so, Enterline did not turn on the cell 

phone or view any images but instead attempted to contact Vo and Widner by 

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telephone. When she could reach neither, she called O’Reilly, who provided 

descriptions of the images he saw that he believed constituted child pornography. 

Enterline then presented the search warrant application and supporting 

affidavit to a state-court judge. The application did not attach any images. Instead, 

the affidavit included O’Reilly’s descriptions of images that he had viewed on the 

cell phone. The state-court judge found probable cause and signed the warrant on 

June 27, 2012. 

That same day, Enterline and her colleague Matt DeShazo, a forensic 

examiner, conducted a forensic examination of the phone. Enterline determined 

from data stored on the cell phone that Johnson owned the phone. Based on the 

information retrieved from the cell-phone search, she then obtained from the same 

judge a search warrant to search Johnson’s home, which Johnson shared with 

Sparks. 

Later that same day, June 27, 2012, Enterline and another law-enforcement 

officer went to Johnson’s home to execute the residence warrant, and they 

encountered Johnson. Johnson confirmed that he had lost the cell phone at 

Walmart. He also stated that within three days of having lost the phone, he filed an 

insurance claim with his phone company and received a replacement phone. He 

gave the replacement to Sparks. Additionally, by this time, Johnson had already 

purchased another phone for himself.

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In all, 1,322 sexually explicit still images and 45 sexually explicit videos 

that constituted child pornography were recovered from the cell phone. Another 

508 sexually explicit images and 58 sexually explicit videos constituting child 

pornography were found on items within Johnson’s residence. 

III.

Johnson and Sparks contend that the district court’s denial of their respective 

motions to suppress should be reversed. They both argue that the district court 

clearly erred by finding that the warrantless search of the cell phone by the FMPD

did not exceed the scope of the search conducted by Vo and Widner. They also 

assert that Enterline’s delay in obtaining the search warrant unreasonably 

interfered with their possessory interests in the cell phone. Additionally, Sparks 

contends that the district court should have granted her motion to suppress because 

Enterline did not attach actual images to the search-warrant affidavit and instead 

relied upon O’Reilly’s descriptions. We do not find merit in any of Johnson’s and 

Sparks’s arguments.

A. Standard of Review

The review of the denial of a motion to suppress presents a mixed question 

of law and fact. See United States v. Mathis, 767 F.3d 1264, 1274-75 (11th Cir. 

2014); United States v. Laist, 702 F.3d 608, 612 (11th Cir. 2012). We review the 

district court’s findings of fact for clear error and it rulings of law and application 

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of the law to the facts de novo. See Mathis, 767 F.3d at 1274-75; Laist, 702 F.3d at 

612. With regard to the district court’s factual findings, only if a review of the 

record leaves a “definite and firm conviction that a mistake” has been made do we 

conclude that a district court clearly erred. United States v. White, 335 F.3d 1314, 

1319 (11th Cir. 2003) (citation and quotation marks omitted). Because the district 

court personally observes the testimony and is in the best position to evaluate 

witnesses’ credibility, “where . . . testimonies are in direct conflict . . . , a ‘trial 

judge’s . . . choice of whom to believe is conclusive on the appellate court unless 

the judge credits exceedingly improbable testimony.’” United States v. RamirezChilel, 289 F.3d 744, 749 (11th Cir. 2002) (quoting United States v. CardonaRivera, 904 F.2d 1149, 1152 (7th Cir. 1990)).

In applying the law to the facts while reviewing a motion to suppress, we 

construe the facts in the light most favorable to the party that prevailed in the 

district court—in this case, the government. See Mathis, 767 F.3d at 1274-75; 

Laist, 702 F.3d at 612. We may affirm the district court’s judgment on any basis 

supported by the record. Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006). 

And even if the district court erred in denying a motion to suppress, we must 

uphold the conviction unless the error was not harmless beyond a reasonable 

doubt. United States v. Alexander, 835 F.2d 1406, 1411 (11th Cir. 1988); see also 

Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967).

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B. The Private-Search Doctrine

The Fourth Amendment provides that the “right of the people to be secure in 

their persons, houses, papers, and effects, against unreasonable searches and 

seizures, shall not be violated.” U.S. Const. amend. IV. The protection the Fourth 

Amendment affords, however, extends to governmental action only; “it is wholly 

inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private 

individual not acting as an agent of the Government or with the participation or 

knowledge of any governmental official.’” United States v. Jacobsen, 466 U.S. 

109, 113, 104 S. Ct. 1652, 1656 (1984) (quoting Walter v. United States, 447 U.S. 

649, 662, 100 S. Ct. 2395, 2404 (1980) (Blackmun, J., dissenting)). So once an 

individual’s expectation of privacy in particular information has been frustrated by 

a private individual, the Fourth Amendment does not prohibit law enforcement’s 

subsequent use of that information, even if obtained without a warrant. Id. at 116, 

104 S. Ct. at 1656; see id. at 117, 104 S. Ct. at 1658-59. As a result, a warrantless 

law-enforcement search conducted after a private search violates the Fourth 

Amendment only to the extent to which it is broader than the scope of the 

previously occurring private search. Id. at 115, 104 S. Ct. at 1656; see also United 

States v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009).

Johnson and Sparks maintain that the warrantless search of the cell phone 

conducted by O’Reilly violated their Fourth Amendment rights. Specifically, they 

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argue that the government failed to establish that the images observed by O’Reilly 

at the FMPD, which formed the basis for and led to the issuance of the search 

warrants, were within the scope of the prior search that Vo and Widner conducted. 

As a result, Johnson and Sparks contend, all of the evidence that was obtained by 

executing the warrants should be suppressed.7

 This argument has two components: 

(1) the district court clearly erred when it determined, as a matter of fact, that the 

scope of the private search included all images contained within one digital photo 

album stored in the photo application of the cell phone and when it found that 

O’Reilly viewed content stored only within that same album; and (2) the district 

court erred as a matter of law by concluding that O’Reilly’s search did not exceed 

the scope of the private search when O’Reilly watched a video not viewed by 

Widner, which was stored within the same album that Widner had scrolled 

through.

1.

Regarding the alleged error of fact, the district court found that Widner had, 

on at least three separate occasions, viewed the entirety of one photo album stored 

on the phone. First, Widner initially saw all of the images contained in the single 

photo album—at least in thumbnail format—when Widner scrolled through the 

 

7 “[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of 

an illegal search or seizure . . . but also evidence later discovered and found to be derivative of an 

illegality or ‘fruit of the poisonous tree.’” Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 

3380, 3385 (1984) (citations omitted).

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whole album while looking at the cell-phone images with Vo at Walmart. Widner 

scrolled through the entirety of the same photo album a second time before 

handing the phone over to Coleman. And third, Widner scrolled through and 

therefore viewed all of the images in the album when he looked at them with 

Gallegos and Janetzke. 

Widner’s testimony supported these findings and demonstrated that Widner

was able to discern the images of the photos in the album by reviewing them in 

thumbnail format. For example, Widner testified that he “saw the little 

thumbnails” and that his wife, using the thumbnails of the images, showed him

“where [the potential images of child pornography] start[ed] and . . . where they 

start[ed] getting worse.” Widner also explained that, while at the FMPD, he 

searched for the images he had previously viewed by looking at the thumbnails. In 

addition, Widner described the album as containing a “sequence [of pictures], like 

taken back to back,” and stated that he “could see the images as they passed.” 

As for the videos, although Widner testified that he did not view any videos 

stored within the album, the court credited Gallegos’s testimony that Widner had 

showed her a video of a girl eating ice cream. In explaining why, the court stated 

that after considering the witnesses’ demeanor, their testimony, and the factors 

listed in Basic Instruction 5 of the Eleventh Circuit Pattern Criminal Jury 

Instructions, it did “not find that Widner [was] not telling the truth as he 

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remember[ed] it, but [did] find that he [was] inaccurate” regarding the viewing of 

the video. We cannot say that the testimony that the district court chose to credit 

was “exceedingly improbable,” Ramirez-Chilel, 289 F.3d at 749, or otherwise 

clearly erroneous.

With regard to the scope of the search performed by O’Reilly, the district 

court concluded that O’Reilly observed images contained within the same photo 

album that Widner had already viewed in its entirety. Nothing in the record 

contradicts this conclusion or even casts aspersions on it. To the contrary, 

O’Reilly specifically testified that he looked at only those images contained in a 

single photo album, and his description of the thumbnails of the photos contained 

in that album matched the contents of the album that Widner had viewed. The 

district court’s factual findings are amply supported by the record, and we find no 

clear error in any of the district court’s challenged factual conclusions.

2.

Next, we consider Johnson and Sparks’s second argument—that the district

court erred as a matter of law by concluding that O’Reilly’s search did not exceed 

the scope of the private search. To the extent that O’Reilly viewed the second 

video, which was stored within the same album that Widner had scrolled through 

but which Widner did not view, we agree with Johnson and Sparks that O’Reilly 

exceeded the scope of Widner’s private search. But we nevertheless conclude that 

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the error had no effect on the state court’s determination of probable cause 

supporting the issuance of the two search warrants. We therefore affirm the 

district court’s denial of Defendants’ motions to suppress.

The district court relied on United States v. Simpson, 904 F.2d 607 (11th Cir. 

1990), in holding that O’Reilly’s viewing of the second video did not exceed the 

scope of Widner’s search, even though Widner had not reviewed that particular 

video. Though we find Simpson to be analogous to the facts here as they regard

O’Reilly’s review of the photos and the video that Widner had previously seen, we 

conclude that Simpson cannot justify O’Reilly’s viewing of the second video.

In Simpson, FedEx employees opened a package that was missing an address 

label to try to determine a destination for the package. Id. at 610. A company 

security officer viewed four videotapes from the package and concluded that they

contained sexually explicit material in which some of the actors appeared to be 

minors. See id. An Assistant United States Attorney and an FBI agent later 

viewed the same four videotapes. See id. We held that the government officials

“did not exceed the scope of the prior private searches for Fourth Amendment 

purposes simply because they took more time and were more thorough than the 

Federal Express agents.” Id. at 610.

We agree that under Simpson, O’Reilly’s review of the photos and the video 

that Widner watched did not violate the Fourth Amendment. Though O’Reilly 

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may have looked at some of the photos and the video more closely than did 

Widner, as with the videotapes in Simpson, the private party’s earlier viewing of 

the same images and video insulated law enforcement’s later, more thorough 

review of them from transgressing the Fourth Amendment.

But with respect to the second video, which Widner never watched, 

O’Reilly’s review exceeded—not replicated—the breadth of the private search. 

Nothing in Simpson provides a safe harbor for a governmental search of materials 

beyond the scope of a private search.

We also have serious doubts that approving of O’Reilly’s viewing of the 

second video when no private party had first watched it would be consistent with

the reasoning in Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 2489-90 

(2014). In Riley, the Supreme Court held that law enforcement must obtain a 

search warrant to search a cell phone seized incident to arrest, unless exigent 

circumstances apply. Id. at 2494-95. In reaching this conclusion, the Court 

emphasized that cell phones “hold for many Americans ‘the privacies of life.’” Id.

(citation omitted). It further observed the tremendous storage capacity of cell 

phones and the broad range of types of information that cell phones generally 

contain, suggesting that a search warrant for a cell phone must specify what part or 

parts of the information contained on it may be searched. Id. at 2489. While 

Widner’s private search of the cell phone might have removed certain information 

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from the Fourth Amendment’s protections, it did not expose every part of the 

information contained in the cell phone. Here, no search warrant was obtained, 

and no exception to the search-warrant requirement excused O’Reilly’s viewing of 

the second video.

3.

Nevertheless, we find no reversible error in the denial of the motions to 

suppress. The government subsequently obtained a valid search warrant to search 

the cell phone, based upon an affidavit that did not include any reference to 

O’Reilly’s review of the second video.8

 Instead, the affidavit described only the 

photos and the first video, which Widner had previously reviewed:

The images begin with a naked adult white male and 

female and several pictures of a white male penis. The 

pictures progress into a series of images and a video of a 

white female toddler eating an ice cream cone. Sgt. 

O’Reilly said that he then observed a series of pictures of 

what appeared to be the same toddler female on the 

beach in her bathing suit, as the pictures progress the 

images zoom in on the toddler’s buttocks making it the 

focal point of the image. The next series of images also 

appear to be the same toddler child asleep wearing a pair 

of panties and a shirt, as the pictures progress the images 

zoom into the vaginal area of the toddler’s panties as she 

is sleeping and her legs are spread apart.

 8 The search warrant was obtained on June 27, 2012. By that time, Johnson and Sparks 

had long since abandoned the cell phone. See infra at Section III.C.2. As a result, they lacked 

standing to contest the June 27, 2012, search warrant. United States v. Winchester, 916 F.2d 

601, 603 (11th Cir. 1990) (standing to challenge a search is measured at the time of the search). 

But even if Johnson and Sparks enjoyed standing to contest the search warrant issued on June 27, 

2012, their challenges could not have succeeded for the reasons set forth above.

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Sgt. O’Reilly then described images of a naked female 

toddler sitting on a toilet, naked toddler males standing 

beside each other exposing their genitals and an image of 

what appeared to be a naked prepubescent female lying 

down. The image depicts the child from the waist down 

and focuses on her vaginal and stomach area. Sgt. 

O’Reilly describes a substance on the stomach of the 

child in the image that appears to be semen.

This affidavit established probable cause that the cell phone contained evidence of 

criminal activity.

As we have explained, “[p]robable cause to support a search warrant exists 

when the totality of the circumstances allow a conclusion that there is a fair 

probability of finding contraband or evidence at a particular location.” United 

States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999). Judges must “make a 

practical, common-sense decision whether, given all the circumstances set forth in 

the affidavit before him including the ‘veracity’ and ‘basis of knowledge’ of 

persons supplying hearsay information, there is a fair probability that contraband 

or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 

U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). “Observations of fellow officers of 

the Government engaged in a common investigation are plainly a reliable basis for 

a warrant applied for by one of their number.” United States v. Kirk, 781 F.2d 

1498, 1505 (11th Cir. 1986) (citation omitted). When determining whether a 

search-warrant affidavit established probable cause, due weight is given to 

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inferences drawn from the facts by the issuing judge and local law-enforcement 

officers. Mathis, 767 F.3d at 1275 (citation omitted). 

The affidavit supporting the search of the phone allowed the court to find 

probable cause. It described photographs of naked men, women, and children, 

including close-ups of private body parts, and culminated in a description of a 

photo that focused on a young child’s naked vagina and stomach, covered in a fluid 

that appeared to be semen. This was more than enough to allow a judge, relying 

on common sense, to determine that it was fairly probable that the phone contained 

evidence of images depicting a sexual performance by a child, in violation of Fla. 

Stat. § 827.071.9

 

Nor do we agree with Sparks that the affidavit contained insufficient 

probable cause since it did not attach copies of the photographs that it described. 

An issuing judge need not personally view photographs or images which are 

alleged to be contraband if a reasonably specific affidavit describing the contents

 

9 Fla Stat. § 827.071(5)(a) provides, “It is unlawful for any person to knowingly possess, 

control, or intentionally view a[n] . . . image . . . which, in whole or in part, he or she knows to 

include any sexual conduct by a child.” In relevant part, “sexual conduct” is defined as

actual or simulated sexual intercourse, deviate sexual intercourse, 

sexual bestiality, masturbation, or sadomasochistic abuse; actual 

lewd exhibition of the genitals; actual physical contact with a 

person's clothed or unclothed genitals, pubic area, buttocks, or, if 

such person is a female, breast, with the intent to arouse or gratify 

the sexual desire of either party; or any act or conduct which 

constitutes sexual battery or simulates that sexual battery is being 

or will be committed.

Fla. Stat. § 827.071(1)(h)

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23

can provide an adequate basis to establish probable cause. See New York v. P.J. 

Video, Inc., 475 U.S. 868, 873-74, 106 S. Ct. 1610, 1614 (1986); United States v. 

Lowe, 516 F.3d 580, 586 (7th Cir. 2008); United States v. Chrobak, 289 F.3d 1043, 

1045 (8th Cir. 2002). The descriptions here were not vague conclusions that the 

phone contained images of child pornography; they objectively and specifically 

stated the contents of the photos, and Enterline swore to these descriptions under 

oath. 

Indeed, Sparks does not challenge the descriptions as inaccurate; she

complains instead that the judge who issued the warrant did not personally view 

the photos. But the affidavit’s descriptions, in and of themselves, established the 

child-pornographic nature of the images. Because the descriptions independently 

demonstrated probable cause for possession of child pornography, the judge was 

not required to actually look at the photos.

C. The Effect of a Delay in Obtaining a Search Warrant on a Possessory 

Interest

Johnson and Sparks also challenge the district court’s conclusion that 

Enterline’s delay in obtaining the initial search warrant for the cell phone did not 

unreasonably interfere with Johnson’s and Sparks’s possessory interests in the 

phone.

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Johnson and Sparks concede the legality of the initial seizure10 of the cell 

phone by the FMPD after it had viewed images on the phone, even though the 

phone was seized without a warrant. As we have discussed, the phone carried

images of child pornography, which constituted contraband. “[I]t is 

constitutionally reasonable for law enforcement officials to seize ‘effects’ . . . 

without a warrant [when] probable cause [exists] to believe they contain 

contraband.” Jacobsen, 466 U.S. at 121-22, 104 S. Ct. at 1660.

But “a seizure lawful at its inception can nevertheless violate the Fourth 

Amendment because its manner of execution unreasonably infringes possessory 

interests protected by the Fourth Amendment’s prohibition on ‘unreasonable 

searches.’” Id. at 124, 104 S. Ct. at 1662. So if, after seizing an item, law 

enforcement unreasonably delays obtaining a warrant to search the item, a 

reasonable seizure can become unreasonable. United States v. Mitchell, 565 F.3d 

1347, 1350 (11th Cir. 2009). Usually, “the reasonableness determination will 

reflect a careful balancing of governmental and private interests.” Soldal v. Cook 

Cty., 506 U.S. 56, 71, 113 S. Ct. 538, 549 (1992) (quotation marks and citation 

omitted); see Illinois v. McArthur, 531 U.S. 326, 331, 121 S. Ct. 946, 950 (2001) 

 

10 Where “governmental authorities exert dominion and control over [an effect] for their 

own purposes . . . a ‘seizure’ [has occurred], though not necessarily an unreasonable one.” 

Jacobsen, 466 U.S. at 120 n.18, 104 S. Ct. at 1660 n.18. Property need not be seized from the 

immediate custody and control of the owner to qualify as a “seizure.” United States v. Place, 

462 U.S. 696, 705, 103 S. Ct. 2637, 2643 (1983).

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(“[R]ather than employing a per se rule of unreasonableness, [courts should] 

balance the privacy-related and law enforcement-related concerns to determine if 

the intrusion was reasonable.”).

Here, the district court employed this balancing approach and concluded that 

the delay in obtaining the search warrant for the cell phone was reasonable. First,

the district court opined that “[l]aw enforcement was not particularly diligent in 

pursuing its investigation of the images on the cell phone” because attending 

training is not typically a sufficient justification for a three-week delay in obtaining 

a warrant and because the “search warrant application was not complex or timeconsuming.” 

But it weighed these determinations against its finding that Johnson’s and 

Sparks’s possessory interests in the phone were “greatly diminished” for a number 

of reasons: (1) the phone had been lost and retrieved by a private person; (2) the 

phone was not password protected; (3) two private citizens and several lawenforcement officials had already viewed images contained on the phone; (4) from 

that point forward, neither defendant would have been able to retrieve the phone 

because it contained contraband and was itself derivative contraband; and (5) the 

defendants replaced the cell phone within a couple of days. Based on the weighing 

of these factors, the court concluded that the government’s legitimate interest in 

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holding the cell phone that it had already determined contained contraband 

outweighed Johnson’s and Sparks’s interests in the phone. 

Johnson and Sparks contend that the district court erred in finding that the 

23-day delay between law enforcement’s seizure of the phone and its obtaining of 

a search warrant was not unreasonable. In support, they rely on United States v. 

Mitchell, 565 F.3d 1347 (11th Cir. 2009)—where we held that a 21-day delay was 

unreasonable—and attempt to distinguish United States v. Laist, 702 F.3d 608 

(11th Cir. 2012)—where we held that a 25-day delay11 was reasonable. 

We do not reach the issue of whether the 23-day period between the seizure 

of the phone on June 4 and the obtaining of a search warrant for it on June 27 was 

unreasonable. Johnson and Sparks lost standing to contest the length of the 23-day

delay because they abandoned their possessory interests in the phone by, at the 

latest, June 7, 2012.

12 And the, at most, three-day period during which they had 

standing to contest the length of the delay was not unreasonable under the 

circumstances of this case.

 11 In actuality, the delay in Laist lasted from March 12 until April 7—a delay of 26 days 

(or 27 if both the first and last days are counted).

12 Johnson stated that he replaced the seized phone three days after its disappearance. 

Johnson and Sparks allege that Sparks lost the phone on June 2, though Widner suggested that 

the phone was found on June 4. If Johnson replaced the phone on June 5, at most, only a oneday period elapsed between the FMPD’s seizure of the phone and Johnson’s and Sparks’s 

abandonment of the phone.

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1.

Article III of the Constitution extends the jurisdiction of federal courts to 

“Cases” and “Controversies” only. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559, 

112 S. Ct. 2130, 2136 (1992) (citation omitted). Among other requirements, the 

case-or-controversy restriction demands that litigants before the court have 

standing to pursue the claims they press. See id. at 559-60, 112 S. Ct. at 2136. At 

an “irreducible constitutional minimum,” standing requires a showing of injury in 

fact, causation, and redressability. See CAMP Legal Def. Fund, Inc. v. City of 

Atlanta, 451 F.3d 1257, 1269 (11th Cir. 2006) (citation and quotation marks 

omitted). Here, Defendants can show no injury inflicted by the delay between June 

7, when, at the latest, they abandoned their cell phone, and June 27, when law 

enforcement obtained a search warrant for the abandoned phone.

Law enforcement must not unreasonably delay in obtaining a search warrant 

after seizing an item to be searched. See United States v. Mitchell, 565 F.3d 1347, 

1352 (11th Cir. 2009). We demand expediency in obtaining a search warrant to 

search seized evidence in order to avoid interfering with a continuing possessory 

interest for longer than reasonably necessary, in case the search reveals no 

evidence (or permissibly segregable evidence) of a crime and the item has no 

independent evidentiary value and is not otherwise forfeitable. See id. Under 

those circumstances, the searched item must be returned promptly so the person 

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with the possessory interest can continue to enjoy that interest. Id. As we have 

explained, “In the ordinary case, the sooner the warrant issues, the sooner the 

property owner’s possessory rights can be restored if the search reveals nothing 

incriminating.”13 Id.

But if the person from whom the item was seized lacks a cognizable 

possessory interest in the item, that person’s Fourth Amendment rights are not 

violated by even a lengthy period between seizure and the procurement of a 

warrant. That is so because any delay—no matter the length—cannot interfere 

with possessory rights that do not exist. And, as Chief Justice Burger has 

explained, “[a] seizure affects only the person’s possessory interests.” Segura v. 

United States, 468 U.S. 796, 806, 104 S. Ct. 3380, 3386 (1984) (Burger, J., nonmajority section of majority opinion). 

The import of this observation is that a person without a possessory interest 

in a seized item lacks standing to object to the length of the period between the 

seizure and the search because the length of the seizure cannot inflict injury on that 

person.

14 And a person must have standing, of course, for a court to have

 13 Diligently seeking a warrant also allows the judiciary to promptly evaluate and correct 

seizures that were improper from the outset. United States v. Burgard, 675 F.3d 1029, 1033 (7th 

Cir. 2012). Here, however, the lawfulness of the initial seizure is beyond dispute.

14 We have described the considerations involved in evaluating standing to object to a 

search—as opposed to standing to object solely to the length of a seizure—slightly differently. 

See United States v. Hastamorir, 881 F.2d 1551, 1559-60 (11th Cir. 1989). In Hastamorir, we 

explained that to have standing to challenge a search, a person must “maintain[] a legitimate 

expectation of privacy in the object of the search.” Id. at 1559. The answer to that inquiry, in 

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jurisdiction over the delay issue. See Kelly v. Harris, 331 F.3d 817, 819 (11th Cir. 

2003) (explaining that the standing requirement must be fulfilled in order for a 

federal court to have jurisdiction). Indeed, federal courts are “obligated to inquire 

into subject matter jurisdiction sua sponte whenever it may be lacking,” and the 

issue may not be waived or forfeited. Bochese v. Town v. Town of Ponce Inlet, 405 

F.3d 964, 975 (11th Cir. 2005) (citation and quotation marks omitted); see also 

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31, 110 S. Ct. 596, 607 (1990) 

(citation omitted) (“Although neither side raises the issue [of standing] here, we are 

required to address the issue even if the courts below have not passed on it, . . . and 

even if the parties fail to raise the issue before us. The federal courts are under an 

independent obligation to examine their own jurisdiction, and standing ‘is perhaps 

the most important of [the jurisdictional] doctrines.’”). 

Here, Defendants lack standing to contest the period of delay between June 7 

and the obtaining of the search warrant on June 27 because they abandoned any 

possessory interests they once had in the seized cell phone by, at the latest, June 7. 

For this reason, we do not have jurisdiction over Defendants’ claim that this delay 

violated their Fourth Amendment rights.

 

turn, requires two sub-inquiries: (1) whether the person “has manifested ‘a subjective 

expectation of privacy in the object of the challenged search[,]’” and (2) whether society is 

willing to recognize the person’s expectation of privacy as legitimate. Id. (citation omitted). The 

issue of abandonment arises under the first inquiry. Id. Where abandonment occurs, we do not 

reach the second inquiry. Id.

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2.

Fourth Amendment claims do not lie when the defendant has abandoned the 

searched property.

15 See United States v. Ramos, 12 F.3d 1019, 1024 (11th Cir. 

 15 To the extent that the Dissent suggests that abandonment was never at issue in this 

case, see Dissent at 52 n.1 and 54 n.2, we respectfully disagree. First, the Government did, in 

fact, raise abandonment in the district court in response to Defendants’ motions to suppress. See

Government’s Response to Defendant’s Motion to Suppress, ECF No. 44, at 8 (emphasis added) 

(“The cellular phone had been previously lost, left behind, or abandoned by the defendant at a 

shopping center. . . . The police did not deprive the owner, the defendant, of his possessory 

interest in his phone. Since the defendant lost or abandoned his phone, and he did not report its 

loss to the police as to alert the police to his identity, any delay in obtaining a search warrant did 

not constitute a significant interference with the defendant’s possessory interest.”) (emphasis 

added); see also Transcript of Suppression Hearing, ECF No. 62 at 240 (government arguing, 

“The cell phone had been previously lost or left behind at a store, and subsequently it was 

abandoned”) (emphasis added); id. at 249 (defense counsel responding, “Now, their argument as 

far as—they’re wrong about it, but their argument as far as the potential that it might have 

been abandoned is relevant, although incorrect . . . .”) (emphasis added) & 254 (defense counsel 

arguing, “[O]n this abandoned issue that keeps—that’s been quoted around all day . . . .)

(emphasis added); id. at 253 (court asking defense counsel, “[A]ren’t you establishing a pretty 

high burden on them to—on a piece of abandoned property?”) (emphasis added). Second, 

abandonment results in a lack of standing because a person has no possessory interest in—and 

therefore no injury resulting from the seizure of—an item that she has abandoned. Defendants’ 

possessory interest in the recovered cell phone has always been at the center of Defendants’ 

claim that the 23-day delay violated their Fourth Amendment rights, see, e.g., Opinion and 

Order, ECF No. 97 (“Defendants’ possessory interest in the cell phone was, as the Report and 

Recommendation found, ‘greatly diminished.’”); Testimony of Classie Coleman, ECF No. 62 at 

57-58 (“Q: “And no one contacted the Police Department, that you’re aware of, looking for the 

phone?” A: “Not to my knowledge.” Q: “Or reporting it lost or stolen?” A: “Not to my 

knowledge, no.”). And, to show their continuing possessory interest in the phone, defendants 

have not been shy about describing efforts they undertook to recover the phone after they lost it. 

See, e.g., Sparks’s Opening Br. at 8 (noting that Sparks returned to Walmart to find her phone 

after she realized that it had been lost; Walmart reported not having yet found the phone; Sparks 

sent text messages to the phone “urgently request[ing]” its return; Sparks asked Vo not to give 

the phone to Walmart’s customer service but instead to return it personally to Sparks); id. at 39 

(arguing, “Although the cellphone was initially lost, the defendant promptly communicated with 

the finder of the telephone to arrange for its immediate return.”). Third, even if the issue of 

abandonment were wholly unrelated to the issue of possessory interest and the issue of 

abandonment had never been mentioned in this case previously, we would still have an 

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31

1994); United States v. O’Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985). As our 

predecessor Court has explained, “[I]t is settled law that one has no standing to 

complain of a search or seizure of property he has voluntarily abandoned.” United 

States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973) (en banc).16 

We assess objectively whether abandonment has occurred, based primarily 

on the prior possessor’s intent, as discerned from statements, acts, and other facts. 

Id. As we have said, “All relevant circumstances existing at the time of the 

alleged abandonment should be considered. Police pursuit or the existence of a 

police investigation does not of itself render abandonment involuntary.” Id.

(citation omitted). In making this inquiry, we have emphasized that the issue of 

abandonment for Fourth Amendment standing purposes is not abandonment in the 

“strict property-right sense.” United States v. Edwards, 441 F.2d 749, 753 (5th 

Cir. 1971). Rather, we use a “common sen[s]e approach” in evaluating 

abandonment. Id. The critical inquiry when determining whether an abandonment 

has occurred is “whether the person prejudiced . . . voluntarily discarded, left 

behind, or otherwise relinquished his interest in the property in question.” Ramos, 

12 F.3d at 1022 (emphasis and citation omitted).

 

obligation to consider whether the record showed abandonment because where abandonment 

occurs, we lack jurisdiction.

16 Pursuant to Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en 

banc), opinions of the Fifth Circuit issued prior to October 1, 1981, are binding precedent in the 

Eleventh Circuit.

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32

Applying this doctrine, we have determined, for example, that an individual 

who ditches property during a chase with law enforcement abandons that property 

and lacks standing to challenge the seizure of it. See, e.g., United States v. Tinoco, 

304 F.3d 1088, 1117 (11th Cir. 2002); United States v. Edwards, 441 F.2d 749, 

751 (5th Cir. 1971). We have similarly concluded that a person who makes a 

decision to leave his property containing contraband when law enforcement 

approaches or seeks to examine the property likewise abandons the property and 

loses standing to challenge its seizure. See, e.g., United States v. McKennon, 814 

F.2d 1539, 1545-46 (11th Cir. 1987).

Indeed, we have found abandonment and consequently no standing even 

when a defendant chose to leave his property only because his life would have 

been endangered had he not done so. In United States v. Edwards, 644 F.2d 1 (5th 

Cir. Unit B 1981), the defendant was onboard a vessel called the Lady Barbara. A 

distress call was made from the vessel, stating that the boat was taking on water 

and sinking. Id. at 1. In response, both the Coast Guard and the Florida Marine 

Patrol dispatched rescue vessels. Id. at 1-2. The Coast Guard reached the Lady 

Barbara first, and its occupants, including the defendant, left the Lady Barbara

and were taken by the Coast Guard to shore. Id. at 1. In the meantime, the Marine 

Patrol reached the empty ship and boarded it to find out whether anyone was 

onboard and to ascertain whether the ship carried contraband. Id. at 2. The Marine 

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Patrol discovered numerous bales of marijuana, which the Coast Guard later 

seized. Id. We held that the defendant lacked standing to challenge the seizure 

because he “called for aid, accepted aid from the Coast Guard, and voluntarily 

abandoned” the ship. Id.

Johnson and Sparks made their decision to abandon their cell phone under 

far less onerous circumstances. Law enforcement was not chasing them, nor were 

their lives at risk when they decided to abandon their cell phone. Instead, knowing 

who had their cell phone and where she could be found through minimal effort, 

Johnson and Sparks made a voluntary and calculated decision over a period of 

three days to cease all efforts to reclaim their phone.

First, we affirm that Johnson and Sparks initially maintained a possessory 

interest in the cell phone when it was lost. After Sparks noticed that she had left 

the phone at Walmart, she returned to the store to retrieve it but was unable to 

locate it. Sparks then contacted Vo and made arrangements to pick up the phone 

from Vo at Vo’s workplace in Walmart. So far, so good.

But while Johnson and Sparks were initially eager to retrieve the cell phone, 

notably, Sparks instructed Vo not to leave the phone with customer service for 

Sparks to retrieve, suggesting that she did not want the phone back at all expenses. 

And when Vo failed to appear at the Walmart with the phone, as Sparks and Vo 

had arranged, Johnson and Sparks did a strange thing: though they knew precisely 

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34

who had the phone and where to find her, they made no attempts to locate Vo at 

the Walmart where they knew she worked. They similarly did not ask anyone at 

Walmart for assistance in obtaining the phone’s return from Vo. Nor did they 

complain to Walmart that a Walmart employee had found their phone at Walmart

and refused to return it. They also chose not to file a report with the police 

complaining about Vo’s failure to give them back their phone, though they knew 

where Vo could be found. In fact, no evidence exists that Johnson or Sparks ever 

even sent another text message to the phone after June 4, 2012, in an attempt to 

retrieve it. See Report and Recommendation of the Magistrate Judge (ECF No. 64) 

at 33 (“Other than a text or texts reported by Vo and Widner, there was no other 

evidence that Johnson or Sparks made concerted attempts to obtain the cell phone 

such as contacting law enforcement to report that it was lost.”). 

This decision to stop pursuing the phone, in the face of reasonable 

alternatives available to obtain the return of the phone, when Johnson and Sparks

knew where it was and how to get it back, stands in stark contrast to their urgent 

efforts to retrieve the phone in the period immediately after the phone was lost. 

Instead, this decision is consistent with the earlier instruction that Vo not leave the 

phone with customer service (which might prove too risky from a criminal-liability 

standpoint) and betrays the intent to abandon the phone. In other words, Johnson 

and Sparks made a conscious choice to allow a complete stranger (Vo) to keep 

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35

their phone and everything on it—without so much as a password to protect the 

phone’s contents—rather than make reasonable further efforts to obtain its return, 

even though they knew who had the phone and where she was. Whether they did 

so to try to avoid provoking Vo into taking the phone to law enforcement or simply 

because they decided that retrieval of the phone was not worth their effort, 

Johnson’s and Sparks’s intent to allow Vo to keep the phone is clear on this record.

Besides Johnson’s and Sparks’s complete abandonment of their efforts to 

obtain the phone after Vo did not appear at the designated time and place, Johnson 

and Sparks engaged in affirmative acts further demonstrating their intent to 

abandon the phone. Within a few days of losing the phone in question, Johnson 

purchased an upgraded phone for himself, filed an insurance claim for the lost 

phone, and obtained and provided a replacement phone to Sparks. The 

replacement phone that Johnson gave Sparks was the same model as the seized 

phone. 

Under the facts in this case, Johnson’s and Sparks’s replacement of the 

phone further signified the finality of their earlier calculated decision to abandon 

the seized phone and cease seeking its return from the known finder. Indeed, even 

had Vo decided to keep the phone for herself, the only reasonable conclusion from 

this record is that Johnson and Sparks had no intention to do anything further to 

recover it. And if a person’s decision to leave a sinking ship to save his own life 

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36

can be viewed as abandonment, see Edwards, 644 F.2d 1, we cannot see how a 

considered and voluntary choice over a three-day period to allow a total stranger to 

keep a phone containing personal information does not constitute abandonment, 

when Johnson and Sparks easily could have instead chosen to retrieve the phone 

with minimal, or at most, reasonable effort.

To be clear, we do not suggest a Fourth Amendment jurisprudence of 

“finders keepers; losers weepers.” Loss is not the same thing as abandonment. 

And loss alone cannot support a finding of abandonment. Nor does the filing of a 

claim for a lost item and the replacement of that item with the resulting insurance 

money, in and of itself, demonstrate an intent to abandon. Instead, we must view 

all of the facts and consider the totality of the circumstances to determine whether 

an intent to abandon may objectively be discerned.

Where, as here, the purchase of a replacement phone follows the ceasing of

efforts to recover the original phone despite knowledge of how to obtain the return 

of the original phone through reasonable efforts, those actions provide further 

confirmation of a deliberate decision to abandon the original phone. Nor, under 

these circumstances, can Johnson and Sparks’s initial efforts at recovering the 

phone insulate them forever from a finding of abandonment when their later 

actions leave no other reasonable conclusion to be drawn.

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37

In this regard, we respectfully disagree with the Dissent that Johnson and 

Sparks’s efforts to recover the phone in this case were analogous to the efforts of 

the defendant in Ramos, who we held not to have abandoned the searched property. 

See Dissent at 57. In Ramos, the defendant had leased a room, but his lease 

expired at 10 a.m., and another client was scheduled to move in at 2 p.m. that same 

day. Ramos, 12 F.3d at 1021. A cleaning-services company was hired to clean the 

unit to prepare it for the next tenant. Id. While cleaning the apartment, the 

housekeepers noticed that the defendant had still not moved out. Id. They packed 

the defendant’s personal effects into garbage bags. Id. In the process, the 

housekeepers found two dollar bills, each of which had a white powdery substance 

on it. Id. They also found a locked briefcase. Id. Peering through the side of the 

briefcase that did not contain the lock, the housekeepers could see pieces of 

napkins wrapped by rubberbands. Id. The cleaning company notified law 

enforcement. Id. When the police arrived, they opened the briefcase and fieldtested a powdery substance located in one of the bags within the briefcase. Id. at 

1021-22. It tested positive for cocaine. Id. The police then relocked the briefcase 

and obtained a search warrant for the purpose of expanding the search of the 

defendant’s unit.

We held that the defendant had not abandoned his interest in the rental unit 

and the briefcase. In reaching this conclusion, we relied on the following facts: the 

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38

defendant had retained the key to the unit, id. at 1024; prior practice dictated that 

the holdover lessee’s personal effects would be packed and held until the holdover 

lessee could be located, id. at 1025; and, significantly, the defendant had made a 

telephone call to the management’s office, presumably to arrange to retrieve his 

property, the day after he had been scheduled to vacate the unit, id. at 1022, 1026.

Ramos is readily distinguishable from Johnson and Sparks’s case. First, 

Ramos kept a key to the unit where his property was stored. Second, the search in 

Ramos’s case occurred on the same day and within hours of when Ramos

supposedly abandoned the searched property. And crucially, Ramos called the 

management company in an effort to recover his property within 24 hours of when 

he allegedly abandoned it. By that time, of course, the search had already 

occurred. 

In contrast, here, after the initial failed effort to obtain the phone from Vo, 

which occurred in the first three days after the phone was lost, Johnson and Sparks 

made an affirmative decision to allow Vo to keep the phone, though they knew she 

had it and where to find her. Then they replaced the phone and went on with their 

lives, without another action evidencing even another thought about the lost phone. 

Indeed, at least twenty days passed between Defendants’ cessation of efforts to 

recover the phone and law enforcement’s search of the phone. During that time, 

Defendants engaged in not a single effort of any type to recover their phone from 

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39

Vo, despite the fact that they knew she had it and where she worked. For these 

reasons, Ramos is not helpful to Defendants.

We also must say a few words about the Dissent’s suggestion that our 

decision here today puts us in conflict with other Circuits. See Dissent at 58 n.4 

(“Other Circuits have found in cases like this one, where there was no verbal denial 

of an interest in the property or clear physical relinquishment of it (such as by 

throwing the property away, unconditionally giving it to another person, or 

dropping it and running away from it), that a person had not abandoned the 

property.”). We respectfully disagree. 

None of the cases cited in footnote 4 of the Dissent involved facts similar to 

those at issue in our case. In United States v. Infante-Ruiz, 13 F.3d 498 (1st Cir. 

1994), for example, the court held that the defendant’s decision to store items 

“inside a closed briefcase inside a [friend’s] locked car trunk” did not reveal a 

“willingness . . . to ‘expose’ such items to the public,” and “nothing . . . indicated 

that [the defendant] had abandoned the briefcase, relinquished authority over it, or 

left it open to ‘public inspection and consumption.’” Id. at 501-02. Unlike in 

Infante-Ruiz, in our case, Johnson and Sparks did not leave their subsequently 

searched item with a trusted friend; they left it with a total stranger, despite the fact 

that it was not password-protected and despite knowing how to retrieve the phone.

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40

United States v. Scrivner, 680 F.2d 1099 (5th Cir. 1982), is no more 

relevant. There, the court concluded that the record could not support a finding of 

abandonment where the officer searched two loaded trucks leased by the 

defendant, which were found on or in warehouse premises also leased by the 

defendant, merely because the trucks were unlocked and the ignition keys were 

inside. Id. at 1100. Johnson and Sparks’s case is not similar to the situation in 

Scrivner; law enforcement did not recover the searched cell phone from 

Defendants’ property.

Next, the Dissent cites United States v. Basinksi, 226 F.3d 829 (7th Cir. 

2000). In Basinski, the defendant entrusted a locked briefcase to a “life long 

friend” so that the friend could hide it on the friend’s private property, in a locked 

barn, surrounded by a locked gate, in a remote part of Wisconsin, which the friend 

visited only infrequently. When the defendant learned that the FBI had tapped his 

phone, he instructed the friend to burn and destroy the briefcase. The friend agreed 

and told the defendant that he had burned the briefcase. In fact, however, the 

friend did not burn the briefcase but instead turned it over to the FBI, who searched 

the briefcase without a warrant. The court held that the defendant had not 

abandoned his property interests in the briefcase. As the court explained, “By 

ordering [the friend] to destroy the briefcase, [the defendant] did not invite all the 

world to rummage through the briefcase at will . . . . Rather, his command 

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41

manifested a desire that nobody possess or examine the contents of the briefcase. 

And even after he gave this order, he continued to manifest a desire to exclude 

others from seeing its contents.” Id. at 838. Johnson and Sparks did just the 

opposite of the Basinski defendant; instead of protecting their phone, they allowed 

a total stranger to keep it, even though the phone was not password-protected and 

even though they knew how to obtain the phone back from Vo with reasonable 

effort.

In United States v. Lopez-Cruz, 730 F.3d 803 (9th Cir. 2013), law 

enforcement asked the defendant about phones in the car he was driving. Id. at 

805. The defendant said that the phones were a friend’s. Id. at 805-06. The court 

concluded that the defendant could not be found to have abandoned his reasonable 

expectation of privacy in the phones because the phones were in the defendant’s 

possession and were being used by him at the time that law enforcement 

encountered him. Id. at 808-09. As the court further explained, “[T]he fact that 

the agent sought [the defendant’s] permission before searching the phones suggests 

that the agent did not believe that [the defendant] had abandoned his privacy 

interest in the phones, and contradicts the government’s position that his actions 

exhibited a clear abandonment of them.” Id. at 809. Unlike the Lopez-Cruz

defendant, Johnson and Sparks were not in possession of and were not using the 

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42

seized phone when it was seized or when it was searched—and they had not been 

in possession of it and they had not used it for at least 23 days.

United States v. Garzon, 119 F.3d 1446 (10th Cir. 1997), is likewise 

inapposite. In Garzon, the defendant was on a bus to Chicago that had a brief 

layover in Denver. Id. at 1450. The bus driver advised the patrons that they could 

leave their belongings on the bus during the layover. Id. at 1448. When the bus 

arrived in Denver, however, law enforcement instructed the bus riders to remove 

all of their property from the bus and to carry it past a narcotics-trained dog. Id. 

The defendant removed one backpack but left two other bags on the bus. Id. In 

concluding that the defendant had not abandoned the two bags, the court noted that 

the defendant was scheduled to reboard the bus that held the bags in question, and 

the only act that the district court relied on to find abandonment was the 

defendant’s failure to obey what the circuit court concluded was law enforcement’s 

unlawful order to remove items from the bus and “parade them past a drug-sniffing 

dog.” Id. at 1450. Johnson and Sparks’s case does not involve any unlawful 

orders—or any orders of any type, for that matter—by law enforcement that 

precipitated the acts of abandonment. Instead, Johnson and Sparks decided 

completely on their own to cease their pursuit of their phone and to obtain a 

replacement.

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43

Finally, in United States v. Most, 876 F.2d 191 (D. C. Cir. 1989), the 

defendant asked a store clerk to hold his bag for him while he was leaving the 

store. Id. at 192. The court held that this simple act did not constitute 

abandonment, noting that the store clerk testified that the defendant asked three or 

four times before he left for the store clerk to hold onto the bag for him. Id. at 197. 

As the court explained, the defendant “entrusted his belongings to the professional 

supervision of the cashiers with the clear understanding that they would protect the 

property from intrusion by the public.” Id. 

But unlike the defendant in Most, Johnson and Sparks did not entrust their 

phone to Vo. Rather, Vo found it. Though Vo originally agreed to return the 

phone, when she failed to do so at the appointed time and place, she never agreed 

to safeguard Defendants’ phone for them. And unlike in Most, where the search 

occurred within a short period of the defendant’s entrusting of the package to the 

store clerk, the search of Defendants’ phone did not occur for 23 days after Vo 

failed to meet Johnson and Sparks. That’s a long time to leave an unprotected cell 

phone with a complete stranger when reasonable efforts were available to recover 

the phone. In short, we do not agree that our decision today conflicts with other 

Circuits’ case law.

We emphasize that Defendants had alternatives available to them to recover 

the phone with reasonable effort, but they instead made a deliberate decision not to 

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44

do so. On this record, we are left with a definite and firm conviction that the 

district court erred in finding that Sparks and Johnson maintained even a minimal 

possessory interest in the seized phone after they abandoned their efforts to recover 

the phone from Vo and obtained a replacement phone.17 For this reason, 

Defendants lack standing to challenge the delay between June 7, when, at the 

latest, they made an affirmative decision to stop pursuing the phone, despite 

knowing how to obtain it with relatively little effort, and June 27, when law

enforcement obtained the search warrant for the phone.

3.

During the three-day period from June 4, when the FMPD seized the phone, 

and June 7, when, at the latest, Johnson and Sparks abandoned any possessory 

interest they may have had in the seized phone, the phone spent one day in 

transport to the Cape Coral Police Department, and Officer Enterline—the only 

Task Force member with access to the Cape Coral Police Department evidence 

room—was then assigned as the case agent as she was boarding a flight out of 

 17 We do not address the situation where information is simultaneously stored on a cell 

phone or other computer and the Cloud. The record contains no evidence that any of the 

searched information was stored on the Cloud. To the contrary, all of the images and videos in 

this case were stored on local media—specifically, on the cell phone at issue and on another cell 

phone recovered in Johnson’s home, as well as on four USB drives and a Micro SD card. See, 

e.g., Testimony of Sparks, ECF No. 62 at 224 (emphasis added) (agreeing that she “expect[ed] 

that the photographs and the information that [she] placed on the hard drive of [the recovered] 

phone . . . would be entitled to privacy . . . .”).

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45

town. Under these circumstances, the three-day delay was not unreasonable and 

did not violate Johnson’s and Sparks’s Fourth Amendment rights.

4.

Johnson and Sparks also argue that the FMPD should have informed them 

that it had possession of their phone so that they could have asserted their 

possessory interests in it. But Widner, Vo, and the FMPD had no information 

beyond the first names of the owners. 

Widner entered the police station with the phone and immediately told 

Coleman, the first government agent that he encountered, that he believed the 

phone contained inappropriate images of children. At that point, had law 

enforcement searched the phone more broadly than Widner, law enforcement 

would have risked violating the Fourth Amendment. See O’Bryant, 775 F.2d at

1534 (explaining that under South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 

3092 (1976), police are lawfully allowed to search property within their custody so

long as that search is consistent with the police caretaking function and is not 

merely a pretext for concealing an investigatory police motive).18 Moreover, the 

record clearly demonstrates that, as a matter of policy, the FMPD does not search 

 

18 Widner did not exchange any texts or speak on the phone with the purported owners of 

the phone. Although it appears Vo might have, the district court found that the extent to which 

Vo had viewed the phone’s contents was unclear. Consequently, the police could not search any 

part of the phone that Widner had not shown them without risking running afoul of Opperman. 

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46

technological devices it receives for indicia of ownership.

19 Quite simply, nothing 

required (and nothing may have allowed) the FMPD to look for information related 

to the ownership of the cell phone so that the owners could assert their possessory 

interests in it. And even if the FMPD were required to have searched for 

ownership information, (which, to be clear, it was not), the FMPD’s failure to do 

so does not shed light on Johnson’s or Sparks’s intent to subsequently relinquish 

their interests in the phone voluntarily.

In making the determination that the district court’s denial of Johnson’s and 

Sparks’s motions to suppress should be affirmed, we remain mindful that 

“the exclusionary rule . . . is a prudential doctrine created 

by th[e Supreme] Court to compel respect for the 

constitutional guaranty” of the Fourth Amendment. 

Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419, 

2426, 180 L.Ed.2d 285 (2011) (citations and internal 

quotation marks omitted). Its “sole purpose . . . is to 

deter future Fourth Amendment violations,” and it “is not 

a personal constitutional right” or “designed to redress 

the injury” already suffered. Id. (internal quotation 

marks omitted). In short, “[w]here suppression fails to 

yield appreciable deterrence, exclusion is clearly 

unwarranted.” Id. at 2426-27 (internal quotation marks 

omitted).

Laist, 702 F.3d at 615 (alterations in original).

Our decision here does nothing to undermine the diligence requirement’s 

incentive for law enforcement to act quickly to secure a warrant. Johnson’s and

 

19 The FMPD does look through items such as purses and wallets, which usually contain 

government-issued identification, in an effort to return the property to its likely owner. 

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Sparks’s actions and inactions demonstrating that they voluntarily relinquished

their possessory interests in the phone were completely beyond the FMPD’s or 

Agent Enterline’s ability to control. For instance, had Johnson or Sparks ever

returned to the Walmart to try to recover the phone when Vo did not return it at the 

appointed time and place, evidence would exist demonstrating that Johnson and 

Sparks had not abandoned their possessory interests. The delay in obtaining the 

search warrant that allegedly intruded on those interests could then be balanced 

“against the importance of the governmental interests alleged to justify the 

intrusion.” Place, 462 U.S. at 703, 103 S. Ct. at 2642. Even after today’s decision, 

then, “officers who [delay in obtaining a warrant] will recognize that whatever 

evidence they discover as a . . . result of the [delay] may be suppressed.” Segura, 

468 U.S. at 812, 104 S. Ct. at 3389. 

Additionally, we cannot overlook the fact that the cell phone was lost, it was 

recovered by private citizens, and neither the FMPD nor Agent Enterline were 

aware of the phone’s rightful owners before the search warrant was executed. 

Again, the purpose of the diligence requirement is to ensure that property thought 

to contain contraband can be returned promptly to its owners to limit the intrusion 

on their possessory interests, should contraband not be found. See Mitchell, 565 at 

F.3d at 1352. But here—where Johnson and Sparks took no action to retrieve their 

phone despite knowing who had found it and where she worked—acting diligently 

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would not have effectuated the diligence requirement’s purpose. On the other 

hand, when law enforcement is aware of or should be aware of who the owners of 

seized property are, they must act diligently so the purpose underlying the rule will 

be effectuated. Under the circumstances of this case, excluding the evidence would 

not even “minimally advance Fourth Amendment interests.” Jacobsen, 466 U.S. at 

125, 104 S. Ct. at 1663. 

For these reasons, we hold that because Johnson and Sparks abandoned their 

possessory interests in the cell phone, they lack standing to assert that any delay

beyond June 7 in obtaining a warrant intruded upon their constitutional rights.20 

See Colbert, 474 F.2d at 176 (collecting cases to support the proposition that “one 

has no standing to complain of a search or seizure of property he has voluntarily 

abandoned”). As a result, the district court did not commit reversible error in 

denying the motions to suppress.

IV.

Johnson also appeals the imposition of his 600-month prison sentence, 

arguing that it violates the Fifth and Sixth Amendments. 

 

20 Our standing analysis on this issue does not affect the determination that Johnson and 

Sparks have standing to assert that evidence should be suppressed because (1) the FMPD’s

search exceeded the scope of the private search. At the time the challenged FMPD and private 

searches occurred, Johnson and Sparks had not yet abandoned the cell phone, so they still 

maintained a reasonable expectation of privacy in it. Even if we employed the traditional 

balancing test to analyze whether the delay between seizure of the phone and procurement of the 

warrant was reasonable, the result would be the same. With no possessory interest to weigh on 

Johnson’s and Sparks’s side of the scale, any delay before obtaining a search warrant was 

inherently reasonable.

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49

Section 2251(e) of Title 18 ordinarily provides for a statutory minimum 

sentence of fifteen years’ imprisonment and a maximum of thirty years for a 

violation of 18 U.S.C. § 2251. If the person being sentenced was previously 

convicted under the chapter, however, § 2251(e) provides for a minimum sentence 

of twenty-five years’ imprisonment and a maximum of fifty years. Johnson 

received the enhanced penalty of fifty years, based upon a 2003 conviction for 

possession and transporting of child pornography. 

He argues that the imposition of this enhancement violated his Fifth 

Amendment right to due process because the specific conviction relied upon for 

the enhancement was not alleged in the indictment, so, he asserts, he was not 

afforded proper notice of the elements of the offense necessary to sustain such a 

sentence. Additionally, Johnson challenges the enhancement on Sixth Amendment 

grounds, arguing that because he did not admit to the prior conviction in the plea 

agreement, the fact of the prior conviction relied upon to increase both the 

statutory minimum and maximum was not proven beyond a reasonable doubt. 

In making these arguments, Johnson principally relies on Apprendi v. New 

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). In Apprendi, the Supreme Court 

held that facts that expose a defendant to an increase of the statutory maximum 

penalty constitute elements of the crime and cannot merely be found by a 

preponderance of the evidence by the judge. Id. at 490, 120 S. Ct. at 2362-63. 

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Instead, any such fact must be submitted to the jury and proven beyond a 

reasonable doubt. See id. Significantly, though, the Court excluded prior 

convictions that might increase statutory maximums from having to be submitted 

to a jury and proven beyond a reasonable doubt. Id.

Johnson concedes that Almendarez-Torres v. United States, 523 U.S. 224, 

118 S. Ct. 1219 (1998), forecloses his argument. In that case, the Court held that a 

prior conviction need not be alleged in the indictment to trigger an enhanced 

statutory maximum. Id. at 229, 118 S. Ct. at 1223. Although the Supreme Court 

hinted in dicta in Apprendi that Almendarez-Torres might have been incorrectly 

decided, Apprendi, 530 U.S. at 489, 120 S. Ct. at 2362, we have repeatedly noted

that we are bound by Almendarez-Torres until the Supreme Court explicitly 

overrules it. E.g., United States v. Beckles, 565 F. 3d 832, 846 (11th Cir. 2009). 

Nevertheless, Johnson attempts to distinguish his case from AlmendarezTorres. He argues that in Almendarez-Torres the defendant admitted the existence 

of the prior convictions during his plea colloquy, so the Court had to address only

the defendant’s Fifth Amendment rights to indictment, due process, and notice and 

had no reason to discuss his Sixth Amendment right to a jury trial. Here, however, 

Johnson contends that he never admitted to the fact of his 2003 conviction or that it 

was a qualifying predicate at his plea colloquy and that the government, therefore,

was required to prove it beyond a reasonable doubt. 

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51

Although the plea agreement did not specifically mention the 2003 

conviction, it did explicitly state that Johnson was pleading guilty to 18 U.S.C. § 

2251(e) and that the minimum was twenty-five years and the maximum was fifty 

years’ imprisonment. By the plain language of the statute, this minimum and 

maximum is applicable only to the extent that a defendant has a prior conviction 

under the same chapter. And significantly, Johnson does not contest the factual 

accuracy of the conviction; that is, he has not contended that he was not in fact 

previously convicted under the chapter. This proves fatal to his appeal. See 

Apprendi, 530 U.S. at 488, 120 S. Ct. at 2362 (noting that the procedural 

safeguards related to the “fact” of conviction, and the failure to challenge the “fact” 

of conviction mitigate any Sixth Amendment concerns that might otherwise be 

implicated by allowing a judge to determine a “fact” that increases the punishment 

beyond the statutory maximum). Accordingly, the district court did not err by 

applying the statutory enhancement when sentencing Johnson.

V.

For the foregoing reasons, the judgments and sentences of the district court 

are AFFIRMED.

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MARTIN, Circuit Judge, dissenting:

I agree with the careful ruling of the Majority that the search of Alan 

Johnson and Jennifer Sparks’s cell phone by Detective-Sergeant O’Reilly exceeded 

the scope of the private search done by Linda Vo and David Widner. I write 

separately, however, because I do not believe that Mr. Johnson and Ms. Sparks 

abandoned their cell phone. And if the phone was not abandoned, then the twentythree-day delay in getting a search warrant for the phone was long enough to 

render its seizure unreasonable under the Fourth Amendment. Based on this, I 

would suppress law enforcement’s search of the phone to the extent it went beyond 

the private search. Also, the officers searched the Johnson/Sparks home based on 

what they found during what I view as their unreasonable seizure of the phone, so I 

would suppress that search as well.

Both Mr. Johnson and Ms. Sparks pleaded guilty, but conditioned those 

pleas on their ability to raise the Fourth Amendment claims the panel addresses 

here. While my ruling would not suppress all of the evidence used to convict 

them, I believe it would mean they are prevailing parties, as that term is used in 

Federal Rule of Criminal Procedure 11. Mr. Johnson and Ms. Sparks would 

therefore have the right, under Rule 11, to withdraw their guilty pleas. That being 

the case, I respectfully dissent to the judgment entered by the Majority.

 52

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I.

I do not read our precedent to support the Majority’s conclusion that Mr. 

Johnson and Ms. Sparks abandoned their possessory interest in their cell phone 

after three days of looking for it.1

 This is not the typical case of abandonment, in 

which a person’s “only conceivable purpose . . . was to rid himself of the [item] 

with its incriminating contents.” United States v. Williams, 569 F.2d 823, 826 (5th 

Cir. 1978). To my knowledge, this court has not previously deemed property 

“abandoned” for Fourth Amendment purposes when it was accidentally lost and 

reasonable efforts were made to find it.

Further, Mr. Johnson and Ms. Sparks’s actions do not suggest that they 

“abandoned” their phone. It does not seem correct for the Majority to say that Mr. 

Johnson and Ms. Sparks “took no action to retrieve their phone.” Upon realizing 

that they had accidentally left their cell phone at Walmart, Ms. Sparks immediately 

 

1 Our precedent requires the government to bear the burden of proving abandonment. 

United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001) (per curiam). Though the 

government mentioned the issue of abandonment in the early stages of this case in the District 

Court, it never asked for or got a ruling from the trial court about whether Mr. Johnson and Ms. 

Sparks had abandoned their cell phone. The government in essence abandoned its abandonment 

argument. The District Court made no findings related to abandonment in denying the 

defendants’ motions to suppress. It did not mention the word. The government, in turn, did not 

argue abandonment on appeal. Indeed, the word “abandon” never appears in the brief the 

government filed here. Because the government failed to meet its burden of proof on the 

abandonment issue, and we have no factual findings about abandonment from the District Court, 

we should not now rely on our own findings on that subject to rule in favor of the government on 

appeal.

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54

returned to the store in an attempt to find and claim it. The store had not located 

the cell phone yet, so this first effort proved unsuccessful.

Ms. Sparks then sent a text message identifying herself and Mr. Johnson as 

the owners of the phone to anyone who might have found it, and urgently 

requested its return. Linda Vo, a Walmart employee, had found the phone and 

responded to Ms. Sparks’s text message. Ms. Sparks then spoke with Ms. Vo on 

the phone. The two arranged for Ms. Vo to keep the phone until Ms. Sparks could 

pick it up from Ms. Vo’s workplace.

But Ms. Sparks’s second trip to get the phone also proved unsuccessful. Ms. 

Vo gave the phone to Mr. Widner, who in turn gave it to the Fort Myers Police 

Department, who then gave it to the Cape Coral Police Department. Still, Mr. 

Johnson and Ms. Sparks remained undeterred in their efforts to retrieve their cell

phone. Even while Mr. Widner was turning the phone over to the police, Mr. 

Johnson and Ms. Sparks continued to call and send text messages to the phone in 

an attempt to reclaim it. These text messages “would automatically pop up” even 

as the police were examining the phone, stating that “we need the phone back” and 

even “giving information as to where they could meet to get the phone back.”

At the Fort Myers police station, Detective-Sergeant O’Reilly then turned 

the phone off and submitted it to evidence, blocking further efforts by Mr. Johnson 

and Ms. Sparks to successfully communicate with their cell phone. He then drove 

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55

the phone over to the Cape Coral Police Department. The entire time, Mr. Johnson 

and Ms. Sparks were under the impression that they were going to get the phone 

back from Ms. Vo at Walmart and had no knowledge the phone was located at a 

police station.

The Majority seems to suggest that Mr. Johnson and Ms. Sparks should have 

done even more to retrieve their phone in order to avoid a finding of abandonment. 

For example, the Majority characterizes Mr. Johnson and Ms. Sparks as having 

“voluntarily relinquished” their possessory interest in the phone. This seems to be 

based on the Majority’s belief that they “took no action to retrieve their phone” 

from Ms. Vo after their initial attempts in the first three days, “despite knowing 

who had found it and where she worked.”2

But in considering this question, it is important to note that Ms. Vo never 

testified in this case. We can only surmise based on Mr. Widner’s testimony what 

Mr. Johnson and Ms. Sparks possibly did to get their phone after it was turned over 

 2 In order to arrive at its finding that Mr. Johnson and Ms. Sparks abandoned their phone, the 

Majority makes findings, for the first time on appeal, about what Mr. Johnson and Ms. Sparks 

knew and what motivated them to take the actions they may or may not have taken. For 

example, the Majority says that Mr. Johnson and Ms. Sparks “chose not to file a report with the 

police complaining about Vo’s failure to give them back their phone, though they knew where 

Vo could be found,” that they “did not ask anyone at Walmart for assistance in obtaining the 

phone’s return from Vo,” and that “no evidence exists that [Mr.] Johnson or [Ms.] Sparks ever 

even sent another text message to the phone after June 4, 2012, in an attempt to retrieve it.” The 

District Court made no factual findings one way or the other about these issues. It is the job of 

Courts of Appeals to review findings of fact for clear error. See United States v. Ramos, 12 F.3d 

1019, 1022 (11th Cir. 1994); Fed. R. Civ. P. 52(a)(6). We do not properly engage in fact finding 

in the first instance. See S.S. Silberblatt, Inc. v. U.S. for Use & Benefit of Lambert Corp., 353 

F.2d 545, 550 (5th Cir. 1965) (“It is not the province of this court to determine the essential facts 

on which the judgment is based; that is the proper function of the trial court.”).

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56

to the police. And it is simply a mistake to think that we can know the full extent 

of Mr. Johnson and Ms. Sparks’s efforts to retrieve their cell phone based on Mr. 

Widner’s testimony. He repeatedly acknowledged he did not know the full extent 

of Ms. Vo’s interactions with them.3

Courts must distinguish between the everyday use of the term 

“abandonment” and its use in a context that may result in the loss of Fourth 

Amendment protections. Here, Mr. Johnson and Ms. Sparks ended their efforts to 

recover their lost cell phone only after several days of active searching. Although 

this might colloquially be referred to as “abandonment,” it is not nearly what is 

necessary to show abandonment so as to deprive someone of their Fourth 

Amendment protections.

For Fourth Amendment purposes, “the critical inquiry is whether the person 

prejudiced by the search . . . voluntarily discarded, left behind, or otherwise 

relinquished his interest in the property in question so that he could no longer 

retain a reasonable expectation of privacy with regard to it at the time of the 

search.” United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994) (quotation 

& emphasis omitted). “Whether abandonment occurred is a question of intent 

 

3 For example, the following exchanges were had during Mr. Widner’s testimony: Q:

“And you don’t know how many [photos] that your wife looked at?” A: “No, I do not.” Q: 

“You don’t know one way or the other whether [Ms. Vo sent a text to the phone]?” A:

“Correct.” Q: “So you don’t know whether your wife gave [the Fort Myers Police Department] 

the details of the communication that she had had with the individual that called with respect to 

the phone?” A. “No.” Q: “And have you spoken to your wife further about what the nature of 

that conversation was?” A. “No, sir, not really.”

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which may be inferred from acts, words and other objective facts.” Id. at 1022–23 

(quotation omitted). Our precedent teaches us to consider case-specific facts in 

determining whether abandonment has occurred. Id. at 1025.

There are many ways to affirmatively abandon something. For example, a 

person may abandon something by words. See, e.g., United States v. Pirolli, 673 

F.2d 1200, 1204 (11th Cir. 1982) (finding abandonment where ownership of items 

was explicitly disclaimed by a defendant who said “I never saw them before in my 

life”). He may abandon it by deed. See, e.g., United States v. Brown, 473 F.2d 

952, 954 (5th Cir. 1973) (finding abandonment where the defendant had buried a 

suitcase in a chicken coop in an open field). He may abandon it by a combination 

of the two. See, e.g., United States v. Colbert, 474 F.2d 174, 177 (5th Cir. 1973) 

(en banc) (finding abandonment where two individuals, in response to police 

questioning, verbally disclaimed any interest in briefcases and began to walk away 

from them). He may abandon it by saying nothing under circumstances in which 

any reasonable owner in the same position would speak up to claim possession. 

See, e.g., United States v. Cofield, 272 F.3d 1303, 1307 (11th Cir. 2001) (per 

curiam) (finding abandonment of bags where a person set them down and did not 

claim ownership after the police made a loud announcement asking if the bags 

belonged to someone nearby). He may abandon it by a failing to act after 

promising to reclaim the property. See, e.g., United States v. Lehder-Rivas, 955 

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58

F.2d 1510, 1521–22 (11th Cir. 1992) (finding abandonment where an owner left a 

suitcase with an acquaintance for over a year after explicitly promising and failing 

to retrieve it within three months). He may abandon property by giving it away 

with the intent to accept its return only at his discretion. See, e.g., United States v. 

McKennon, 814 F.2d 1539, 1546 (11th Cir. 1987) (per curiam) (finding 

abandonment of a suitcase containing cocaine where the defendant gave the 

luggage to another person to carry and admitted that he did not intend to retake 

possession unless the carrier reached the final destination without incident).

But a person may not abandon property for Fourth Amendment purposes by 

mere loss, carelessness, or accident, where he has made reasonable efforts to 

reclaim the property. See, e.g., Ramos, 12 F.3d at 1026 (11th Cir. 1994) (finding 

no abandonment where the defendant left a briefcase in a temporarily leased 

condominium a few hours after the scheduled checkout and telephoned the 

condominium office the next day to seek the briefcase’s return). In light of their 

repeated efforts to reclaim it, Mr. Johnson and Ms. Sparks demonstrated no intent 

to abandon the cell phone.4

 The fact that they could have conceivably done more 

 4 To my knowledge, no other Circuit has ever found abandonment for Fourth Amendment 

purposes where property was lost and the owner made reasonable efforts to recover it. The 

Seventh Circuit explained abandonment precedent from federal Courts of Appeals nicely:

There are three general types of abandonment cases, which are based on the[] two 

[main] indicia of abandonment[, explicit denials of ownership and physical 

relinquishment of the property]. The first type is characterized by the presence of 

a fleeing defendant who relinquishes an object to make his flight easier or because 

discarding the item might make it easier for him to later claim that he never 

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59

is simply not sufficient, in my view, to constitute abandonment under the Fourth 

Amendment.

I also understand the Majority to equate Mr. Johnson and Ms. Sparks’s 

purchase of a new phone with abandonment of the old. But we must be mindful of 

the status cell phones now have as property. They function as “cameras, video 

players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, 

maps, or newspapers.” Riley v. California, __ U.S. __, __, 134 S. Ct. 2473, 2489 

(2014). They have “immense storage capacity” and allow people to “collect[] in 

one place many distinct types of information—an address, a note, a prescription, a 

bank statement, a video.” Id. When Mr. Johnson and Ms. Sparks lost their cell 

phone, they lost troves of information necessary for navigating modern life. 

Buying a replacement phone allowed them to begin reaccumulating this 

 

possessed it. . . . The second type of case is closely related to the first, for in socalled “garbage cases” the defendant places material in or near a refuse receptacle 

that is readily accessible to the public, and in which he usually places other 

discarded materials. . . . In the third type of case, the defendant is usually caught 

red-handed with or near a container of contraband, whereupon he denies that the 

container or its contents are his.

United States v. Basinski, 226 F.3d 829, 837 (7th Cir. 2000) (citations omitted). This case does 

not look like any of these situations, where a finding of abandonment might be appropriate.

Other Circuits have found in cases like this one, where there was no verbal denial of an 

interest in the property or clear physical relinquishment of it (such as by throwing the property 

away, unconditionally giving it to another person, or dropping it and running away from it), that 

a person had not abandoned the property. See, e.g., United States v. Infante-Ruiz, 13 F.3d 498, 

501–02 (1st Cir. 1994); United States v. Scrivner, 680 F.2d 1099, 1100–01 (5th Cir. 1982); 

United States v. Basinski, 226 F.3d 829, 837–38 (7th Cir. 2000); United States v. James, 353 

F.3d 606, 616 (8th Cir. 2003); United States v. Lopez-Cruz, 730 F.3d 803, 808–09 (9th Cir. 

2013); United States v. Garzon, 119 F.3d 1446, 1450 (10th Cir. 1997); United States v. Most, 

876 F.2d 191, 196–97 (D.C. Cir. 1989).

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information. But getting a new phone does not mean they abandoned their interest 

in the unique information contained in the lost phone.

In my view, Mr. Johnson and Ms. Sparks took all the reasonable steps a 

responsible owner of lost property would have taken to recover it. That being the 

case, they did not “abandon” their lost cell phone after three days. I would hold 

that Mr. Johnson and Ms. Sparks maintained a possessory interest in the phone 

during the entire twenty-three-day seizure.

II.

If indeed Mr. Johnson and Ms. Sparks did not abandon their cell phone, we 

are left to decide whether the twenty-three-day delay in seeking a search warrant 

for the phone rendered the seizure of the phone—and the resulting search of their 

home—unreasonable under the Fourth Amendment. No one disputes that police 

seized the cell phone without a warrant on June 4 and held it until June 27. On that 

date, Agent Enterline got a search warrant.

The reasonableness of a delay in getting a search warrant is “determined in 

light of all the facts and circumstances, and on a case-by-case basis,” balancing the 

interests of the government and the private citizens. United States v. Mitchell, 565 

F.3d 1347, 1351 (11th Cir. 2009) (per curiam) (quotations omitted). The 

reasonableness of the delay is decided upon review of several factors, including: 

the significance of the interference with the person’s possessory interest; the length 

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of the delay; whether the person consented to the seizure; and the government’s 

legitimate interest in holding the property as evidence. United States v. Laist, 702 

F.3d 608, 613–14 (11th Cir. 2012).

In United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009) (per curiam), 

this Court held that an interference with an individual’s possessory interest in his 

computer was especially significant because computers are “relied upon heavily 

for personal and business use” and may “store personal letters, e-mails, financial 

information, passwords, family photos, and countless other items of a personal 

nature.” Id. at 1351. This principle, of course, applies to modern cell phones. See

Riley, 134 S. Ct. at 2489 (“The term ‘cell phone’ is itself misleading shorthand; 

many of these devices are in fact minicomputers that also happen to have the 

capacity to be used as a telephone.”). I know of no basis for disputing that people 

like Mr. Johnson and Ms. Sparks have a strong possessory interest in their cell 

phones.

In United States v. Laist, 702 F.3d 608 (11th Cir. 2012), this court held that 

two factors might diminish a person’s significant possessory interest: (1) the 

possessor is given the opportunity to (and actually does) remove anything he wants 

from the item before it is confiscated; or (2) the possessor admits to the presence of 

and actually shows the contraband on the device to government officials. Id. at 

616. Neither of these diminishing factors is present here. Mr. Johnson and Ms. 

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Sparks lost their phone, and were never given any opportunity to remove any 

information from it before it was seized. Nor did they make any admission to the 

Cape Coral Police Department that the phone contained contraband. The officers 

who possessed the phone had not actually seen the contraband. During the period 

of delay in getting the search warrant, Mr. Johnson and Ms. Sparks continued to 

have a strong possessory interest in their cell phone that we must weigh heavily in 

deciding whether the delay was reasonable.

The length of the delay—twenty-three days—also weighs against finding it 

was reasonable. In Mitchell, we concluded that a similar twenty-one-day delay 

was unreasonable. Mitchell, 565 F.3d at 1353. In Laist, although we found a 

twenty-five-day delay reasonable based on facts not present here, we cautioned 

that such a long delay was “far from ideal.” Laist, 702 F.3d at 617. We deemed 

the delay in Laist justifiable because the government officials began preparing the 

warrant “on the very day” they received notice that a search warrant was necessary. 

Id. at 618. Also noteworthy, the warrant in Laist contained “extensive quantities of 

non-boilerplate information” that had been “drafted originally for th[at] warrant 

application.” Id.

I see no similar justification for the delay here. Agent Enterline certainly did 

not start working on the warrant on the day she got the cell phone. Neither did she 

begin preparing it while she was back in town from June 8–10, or when she was 

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again in town from June 16–20. Also, the warrant she produced contained little 

original information. A mere half-page was anything other than boilerplate, and 

the warrant took less than half a day to prepare. Finally, Agent Enterline’s 

justification for the delay—that she had been out of town to take part in three 

separate trainings and had been told the search warrant was “no big deal, look into 

it when you get back”—was precisely the type of justification for delay this court 

rejected in Mitchell. See Mitchell, 565 F.3d at 1352–53.

While a person’s consent to the seizure of his property may justify some 

delay in procuring a search warrant, Laist, 702 F.3d at 614, there was clearly no 

consent here. Mr. Johnson and Ms. Sparks did not even know the police had their 

phone, and the police made no effort to secure their consent to the seizure.

Finally we must consider “the government’s legitimate interest in holding 

the property as evidence.” Laist, 702 F.3d at 614. We know that Agent Enterline 

had not seen images of child pornography on the cell phone. That makes this case 

different from Laist. See id. at 616. This case is also not like Mitchell because the 

defendants had not told Agent Enterline there was contraband on the phone. See

Mitchell, 565 F.3d at 1349 (finding even an admission by the defendant 

insufficient to bolster the government’s interest because “until an agent examines 

the [item’s] contents, he cannot be certain that it actually contains child 

pornography,” id. at 1351). Agent Enterline had been told only that the phone 

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“may or may not contain child pornography.” This remark, in my view, is not 

enough to create a government interest in keeping custody of the phone sufficient 

to justify the twenty-three-day delay in seeking a search warrant.

I would hold that the government’s twenty-three-day delay rendered the 

seizure of the cell phone, and the resulting search of Mr. Johnson and Ms. Sparks’s 

home, unreasonable under the Fourth Amendment.

III.

As I said at the outset, Mr. Johnson and Ms. Sparks entered a guilty plea in 

this case, conditioned on their reservation of their right to appeal the Fourth 

Amendment issues discussed extensively here. Under Federal Rule of Criminal 

Procedure 11, a defendant who “prevails on appeal” may withdraw a conditional 

plea. Fed. R. Crim. P. 11(a)(2). The holding I propose would, as I understand it, 

make Mr. Johnson and Ms. Sparks prevailing parties. This would in turn allow 

them to withdraw their guilty pleas.

I respectfully dissent to the judgment of the Majority.

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