UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-2160

JESSIE M. CASELLA,

Plaintiff - Appellant,

v.

MATT BORDERS, individually and in his official capacity; 

UNNAMED TOWN OF CULPEPER POLICE OFFICERS 1 - 100, 

individually and in their official capacity; SCOTT H.

BARLOW, Chief of Police in his official capacity; TOWN OF 

CULPEPER POLICE DEPARTMENT,

Defendants - Appellees.

Appeal from the United States District Court for the Western 

District of Virginia, at Charlottesville. Norman K. Moon, 

Senior District Judge. (3:09-cv-00019-nkm-bwc)

Argued: September 24, 2010 Decided: December 15, 2010

Before SHEDD and KEENAN, Circuit Judges, and Robert J. CONRAD, 

Jr., Chief United States District Judge for the Western District 

of North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

Emmett Franklin Robinson, Sr., LAW OFFICE OF E. F. ROBINSON, 

PLLC, Lake Ridge, Virginia, for Appellant. Jennifer Lee 

Parrish, PARRISH, HOUCK & SNEAD, PLC, Fredericksburg, Virginia; 

Richard Hustis Milnor, ZUNKA, MILNOR, CARTER & INIGO, LTD., 

Charlottesville, Virginia, for Appellees.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Jessie Casella lent her boyfriend a cellular phone 

containing images of her nude body. What she could not foresee 

was that law enforcement officers would eventually view these 

images in an act of voyeurism. Casella challenges these 

officers’ actions under 42 U.S.C. § 1983 and the Fourth 

Amendment to the United States Constitution. The district court 

found Casella lacked a reasonable expectation of privacy in the 

contents of the cellular phone because she lacked control or 

dominion over the phone when officers seized it from her 

boyfriend. We agree, and accordingly, we affirm.

I.

During the early morning hours of March 30, 2008, police 

offers of the Town of Culpeper, Virginia, arrested Casella’s 

then-boyfriend, Nathan Newhard. The officers searched Newhard 

incident to his arrest, and an unnamed officer seized the 

cellular phone he possessed. Casella had lent the phone to 

Newhard on February 1, 2008, “for his personal use.” This 

unnamed officer opened the cellular phone’s images folder, where 

he discovered nude images of Casella and Newhard in “sexually 

compromising positions.”
4

Sergeant Matt Borders eventually gained possession of the 

phone. Casella alleges Borders then announced over the Town of 

Culpeper radio system to several additional unnamed officers, 

county deputies, and members of the public “that the private 

pictures were available for their viewing and enjoyment.” She 

further claims that several officers who were unassociated with 

Newhard’s arrest, as well as an acquaintance unassociated with 

the police department, traveled to police headquarters and 

viewed the pictures. Casella asserts she never gave her consent 

to Newhard or any other party to share or transmit the contents 

of the phone. She claims that as a result of these actions, she 

has suffered fear and anxiety over widespread dispersion of the 

images, leading to depression and other medical issues.

Casella and Newhard filed separate actions against the Town 

of Culpeper Police Department (“Town”) and several of its 

officers, including Police Chief Scott Barlow, Sergeant Matt 

Borders, and Unnamed Town of Culpeper Police Officers 1-100. 

Casella alleged intentional infliction of emotional distress and 

violations of 42 U.S.C. § 1983. The district court dismissed 

the § 1983 claims and declined to exercise supplemental 

jurisdiction over the state-law claim. Casella appeals the 

district court’s dismissal of her § 1983 claims. 
5

II.

“[I]n order to state a claim under § 1983, a plaintiff must 

allege the violation of a right preserved by another federal law 

or by the Constitution.” Kendall v. City of Chesapeake, Va., 

174 F.3d 437, 440 (4th Cir. 1999) (citing Baker v. McCollan, 443 

U.S. 137, 140, 144 n.3 (1979)). Casella alleges a violation of 

her Fourth Amendment rights.1

“The ‘capacity to claim the protection of the Fourth 

Amendment depends . . . upon whether the person who claims the 

protection . . . has a legitimate expectation of privacy in the 

invaded place.’” United States v. Gray, 491 F.3d 138, 144 (4th 

Cir. 2007) (quoting Minnesota v. Carter, 525 U.S. 83, 88 

(1998)). To be legitimate, a subjective expectation of privacy 

must be objectively reasonable. Id.

Where an individual claims an expectation of privacy in 

property held by another, this Court has looked at “whether that 

person claims an ownership or possessory interest in the 

property, and whether he has established a right or taken 

precautions to exclude others from the property.” United States 

 1 The district court, presumably out of caution in facing a 

confusingly worded Amended Complaint, addressed Casella’s claims 

under both the Fourth Amendment and Fourteenth Amendment 

substantive due process. Casella’s counsel made clear at oral 

argument, however, that she only appeals the district court’s 

judgment regarding her assertion of her Fourth Amendment rights.
6

v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992) (citing Rawlings v. 

Kentucky, 448 U.S. 98, 105-06 (1980)). “A person who is 

aggrieved by an illegal search and seizure . . . of a third 

person’s . . . property has not had any of his Fourth Amendment 

rights infringed . . . .” Rakas v. Illinois, 439 U.S. 128, 134 

(1978).

III.

We review de novo a district court’s decision to grant a 

motion to dismiss. Novell, Inc. v. Microsoft Corp., 505 F.3d 

302, 307 (4th Cir. 2007).

The parties do not dispute whether Casella had a subjective 

expectation of privacy in the contents of the cellular phone. 

They both agree she did. The parties differ, however, as to 

whether Casella’s expectation of privacy was reasonable once she 

relinquished physical control of it.

Casella cites an unpublished Tenth Circuit case, Donohue v. 

Hoey, 109 Fed. Appx. 340 (10th Cir. 2004), in support of her 

position. In Donohue, a murder victim’s husband sued when 

officers shared among one another the nude honeymoon photographs 

of his deceased wife. Id. at 348. That court held that the

plaintiff, who had abandoned the photographs in his former home, 

had re-established any reasonable expectation of privacy he may 
7

have lost when officers refused his demand to return the 

photographs. Id.

Donohue is both non-binding and unpersuasive. Once the 

Donohue plaintiff lost a legitimate expectation of privacy in 

the photographs by abandoning them in his former home, this 

expectation could not be reestablished merely by demanding them 

back from the police. After all, by the time police had 

possession of the photos, a private investigator working 

pursuant to police authority had already retained the negative 

images in his own file, and he could have shared the images with 

any number of people. Id. at 348. Further, Casella here fails 

to allege that she demanded the photographs back, making Donohue

factually inapposite.

More legally on point, this Court addressed in an 

unpublished opinion a defendant prisoner’s challenge to the 

search of his mail, which officers had seized from a third 

party’s residence. United States v. Gallo, No. 87-5151, 1998 WL 

46293, at *3 (4th Cir. May 12, 1988). The defendant argued that 

the third party held his mail only as a bailee and that, despite 

the third party’s actual possession of it, the defendant had a 

reasonable expectation of privacy in the containers that were 

searched. Id. This Court held that the defendant lacked a

reasonable expectation of privacy. Id. It stated:
8

Imprisoned as he was, [the defendant] could not hope 

to exercise any control over those locations, and 

there is no evidence that he ever had exercised any 

control. While [the defendant] undoubtedly hoped and 

intended that these areas would not be searched by law 

enforcement officers, this has little to do with the 

objective reasonable expectation required for 

standing. The fact that some of the materials seized 

in the search were his property is not determinative. 

The fourth amendment inquiry focuses on expectations 

of privacy in the location or containers searched, not 

[on] property interests in items discovered in the 

search.

Id. (citing Rawlings, 448 U.S. at 105-06). While Casella is no 

prisoner, the legal principle fits well. Casella alleges no 

facts indicating she exercised a right to control the cell phone 

or its contents after giving the phone to Newhard. She

“undoubtedly hoped and intended” that the images would not be 

viewed by anyone other than Newhard, but hopes and intentions do 

not make Fourth Amendment rights.

As the Supreme Court observed in Rakas, “one who owns or 

lawfully possesses or controls property will in all likelihood 

have a legitimate expectation of privacy by virtue of this right 

to exclude.” 439 U.S. at 143 n.12. The Amended Complaint fails 

to assert facts from which the Court can infer that Casella, 

after she relinquished possession of the phone, had the right or 

ability to exclude others from viewing the images stored

therein.
9

Casella’s Amended Complaint further fails to allege any 

demands or limitations regarding dissemination of the cellular 

phone’s contents. Rather, she rests on the allegation that “At 

no time did Plaintiff give her consent to Nathan Newhard or any 

other party to the transmission or any sharing of the contents 

of her cellular telephone.” The mere absence of Casella’s 

consent to transmit or share the images, however, does not make 

her expectation of privacy in those images reasonable.2

While the officers’ actions as alleged may be

reprehensible, the Fourth Amendment’s scope of protection does 

not extend to the Appellant. Casella fails to plead facts from 

which it is plausible to conclude that she had a reasonable, and 

therefore legitimate, expectation of privacy in the contents of 

the cellular phone. 

 In 

addition, when Newhard was arrested on March 20, 2008, nearly 

two months had passed since Casella had lent him the phone, 

suggesting she lent the phone to Newhard for an extended period 

rather than on a day-to-day basis.

 2 Casella attempts to buttress her arguments with facts not 

alleged in the Amended Complaint. The Court will not consider 

facts not pled, nor will it entertain facts that cannot be 

inferred from the bare allegations of the Amended Complaint.
10

IV.

For the foregoing reasons, we hold that Casella lacked a 

legitimate expectation of privacy in the contents of the 

cellular phone. We therefore affirm the district court’s 

dismissal of her § 1983 claim.

AFFIRMED