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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES OF AMERICA
v.

CASE NO: 2:16-cr-68-FtM-38CM

JORGE GUERRERO-TORRES
OPINION AND ORDER1
This matter comes before the Court on Defendant Jorge Guerrero-Torres’ Motion
to Suppress. (Doc. 56). The Government filed a Response in Opposition. (Doc. 67). In
addition to the parties’ briefs, the undersigned held a two-day evidentiary hearing at which
Defendant was present and represented by counsel. At the conclusion of the hearing,
the Court denied Defendant’s motion for lack of standing with a written order to follow.
This is that order.
INTRODUCTION
Defendant has been indicted for possessing and producing child pornography that
law enforcement allegedly recovered from his cellular phone.

(Doc. 1).

Although

Defendant concedes that the cell phone at issue is exclusively his device, he moves to
suppress the phone’s contents and any post-Miranda statements as “fruit of the
poisonous tree” of an illegal search. (Doc. 56). The Government asserts that Defendant

1

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websites. These hyperlinks are provided only for users’ convenience. Users are
cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By
allowing hyperlinks to other websites, this Court does not endorse, recommend, approve,
or guarantee any third parties or the services or products they provide on their websites.
Likewise, the Court has no agreements with any of these third parties or their websites.
The Court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the Court.

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lacks standing to bring the motion because he abandoned the phone and thus lost any
reasonable expectation of privacy in it. The Court agrees that Defendant lacks standing.
BACKGROUND
Defendant called one witness at the hearing – himself. He also introduced one
exhibit. (Doc. 74). The Government, in turn, called the following nine witnesses:


Fortunato Mazzotta, a detective with the Lee County Sheriff’s Office (“LCSO”);



Aurelio Almazan, a sergeant with the Okeechobee Police Department;



Jose Garduno, a road patrol officer with the Okeechobee County Sheriff’s
Office;



Tina Marsian, an agent with the Florida Department of Law Enforcement
(“FDLE”);



Amanda Stephens, an FDLE senior crime intelligence analyst;



Jeffrey Duncan, a special agent to the electronic surveillance support team for
the FDLE;



Michael Lacombe, an LCSO digital forensic specialist;



Antonia Aguirre-Torres, a private individual who helped law enforcement
apprehend Defendant; and



Steven Morehouse, a private individual who found Defendant’s cell phone.

(Doc. 70). The Government also introduced twelve exhibits. (Doc. 73). Based on this
evidence, the Court makes the following findings of fact material to the motion to
suppress.
This case originates from a missing child investigation.

Although the child’s

disappearance is unrelated to Defendant’s child pornography charges, it is relevant to
explain law enforcement’s interaction with him between May 29, 2016 and June 4, 2016.2

2

All dates relevant to this case occurred in 2016 unless otherwise stated.

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On the morning of May 29, LCSO received a report that a child went missing from
her home during the night. A statewide search for the child ensued that involved multiple
law enforcement agencies. The child’s mother mentioned Defendant’s name to police
because, among other things, he had moved out of her home a few weeks earlier. This
information prompted Tina Marsian, an FDLE agent, to speak with Defendant at his new
home in Orlando. Defendant denied any knowledge of the child’s whereabouts and said
that he was in a car accident on May 28 while driving to Okeechobee, Florida.
On May 31, LCSO obtained a search warrant to recover records and historical cell
cite location for three cell phones, including Defendant’s white Samsung Galaxy 5 with
the number 305-785-0205. Contrary to what Defendant told Agent Marsian, his cell tower
records placed his phone near the child’s home between 12:00 a.m. and 3:00 a.m. on the
night of her disappearance. The phone then travelled back to Orlando but stopped for
periods at several locations along the way. Later that afternoon, the United States
Marshal’s Florida Regional Fugitive Task Force got a second warrant to track Defendant’s
cell phone.
Also on May 31, Detective Mazzotta met with the child’s mother in hopes of
recovering any new information. During that conversation, Detective Mazzotta learned
that Defendant might have had an inappropriate relationship with the child prior to her
disappearance. As such, Agent Marsian arranged a second in person meeting with
Defendant.

This time Detective Mazzotta and his partner, Detective John Lathrop,

planned to attend.
Around 4:30 p.m. that day, Detectives Mazzotta and Lathrop landed at the Orlando
airport, which was approximately ten to fifteen minutes from Defendant’s home. While en

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route, Defendant called Agent Marsian, who told Defendant that they were almost at his
home. When the officers arrived, Defendant was not there and nowhere to be found.
Agent Marsian called his cell phone at least ten times and left him voicemail messages –
he never answered or returned her calls. One of Defendant’s roommates called him too,
but again he did not answer.
Defendant offers a slightly different narrative. He concurs that he had a meeting
with officers on May 31, and that he talked to Agent Marsian that afternoon. But he puts
the scheduled meeting around an hour or so earlier. According to Defendant, the officers
did not show up at his home when they said they would. He then went for a walk and got
lost. And while lost, Defendant testified that it rained.
The rain is important to this case because Defendant stated that his cell phone got
soaked in his pants’ pocket. He removed the phone’s battery twice to shake out excess
water. That did not work, because the phone did not power on after he reinserted the
battery. Defendant testified that he knew the phone was unfixable and that he needed a
new one because of his previous experience with water-damaged cell phones.
Consequently, he explained that he threw the phone in a ditch that ran parallel to a public
street and in front of an apartment complex. The ditch was about one mile from his home.
The next day, Steven Morehouse found Defendant’s phone in the ditch while
cutting the grass. Morehouse testified that he found the phone powered on, albeit with
low battery, with around twenty-seven (27) missed phone calls. He showed the phone to
his supervisor, who told Morehouse that he could keep the phone if nobody claimed it. At
some point that day or the next, the cell phone rang and Morehouse answered it. He
spoke to an unknown female caller and told her that he would meet her or the phone’s

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owner to return it. According to Morehouse, the female said that he could keep the phone
and that she did not have any use for it. On June 3, FDLE agents traced Defendant’s cell
phone to Morehouse in Daytona Beach, Florida. FDLE agent Jeffrey Duncan retrieved it
from Morehouse and gave it to Detective Mazzotta.
Also on June 3, Defendant attempted to enlist help to reach Texas or the Mexican
border. Defendant and his friend met the friend’s sister, Antonia Aguirre, at her beauty
salon in Okeechobee in hopes that she could facilitate his travel. Aguirre initially advised
Defendant that she would think about helping him. But Aguirre contacted the police later
that day when she learned that Defendant was a possible suspect in a child’s
disappearance.

From there, Aguirre, in coordination with law enforcement, told

Defendant that she would help him and arranged a meeting. Around 8:00 p.m. that
evening, Aguirre picked up Defendant who was hiding in the woods. The police thereafter
stopped Aguirre’s car. They detained Defendant for questioning and transported him to
the Okeechobee County Sheriff’s Office.
The next day, Detective Mazzotta gave Defendant’s phone to the LCSO Digital
Forensics Unit to conduct a forensic examination in hopes of finding information on the
still-missing child. Although no such information was found, the Digital Forensics Unit
recovered deleted images of child pornography.
Against this factual backdrop, a federal grand jury returned a two-count indictment
against Defendant for possession and production of child pornography in violation of 18
U.S.C. §§ 2251, 2252. This motion to suppress followed.

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DISCUSSION
The Fourth Amendment protects people from “unreasonable searches and
seizures” by the government. U.S. Const. amend. IV. To have standing to assert a Fourth
Amendment violation, a defendant must establish that he has a legitimate expectation of
privacy in the item searched. See Rakas v. Illinois, 439 U.S. 128, 148-49 (1978); United
States v. Brazel, 102 F.3d 1120, 1147-48 (11th Cir. 1997). A defendant’s legitimate
expectation of privacy exists when he can show (1) a subjective expectation of privacy in
the item searched that (2) society is prepared to recognize as objectively reasonable.
See United States v. Ford, 34 F.3d 992, 995 (11th Cir. 1994) (citing Katz v. United States,
389 U.S. 347, 361 (1967) (Harlan, J., concurring)). Determining whether an individual
has a legitimate expectation of privacy requires a careful analysis of the facts of the
particular case, and the individual’s expectation must be justifiable under the
circumstances. See Rakas, 439 U.S. at 142-48; United States v. Cooper, 133 F.3d 1394,
1398 (11th Cir. 1998).

The defendant bears the burden of showing a legitimate

expectation of privacy. See United States v. Ramos, 12 F.3d 1019, 1023 (11th Cir. 1994).
Pertinent here, “Fourth Amendment claims do not lie when the defendant has
abandoned the searched property.” United States v. Sparks, 806 F.3d 1323, 1341-42
(11th Cir. 2015) (citations and footnote omitted). “It 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).3 “In determining whether
there has been an abandonment, the critical inquiry is whether the person prejudiced by

3

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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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.” Ramos, 12 F.3d at 1023 (emphasis,
internal quotations, and citation omitted).

“[T]he issue of abandonment for Fourth

Amendment standing purposes is not abandonment in the ‘strict property-right sense.’
Rather, courts use a ‘common sen[s]e approach’ in evaluating abandonment.” Sparks,
806 F.3d at 1342 (quoting United States v. Edwards, 441 F.2d 749, 753 (5th Cir. 1971)).
While the defendant must prove a legitimate expectation of privacy in the areas searched,
the government must prove abandonment. See Ramos, 12 F.3d at 1023.
The abandonment doctrine hinges on the individual’s intent to abandon. Courts
“assess objectively whether abandonment has occurred, based primarily on the prior
possessor’s intent, as discerned from statements, acts, and other facts. All relevant
circumstances existing at the time of the alleged abandonment should be considered.”
Sparks, 806 F.3d at 1342. Intent is inferred from the defendant’s words, actions, and
other circumstances that indicate a lack of privacy expectation over the discarded item.
Id. at 1353; see also Colbert, 474 F.2d at 176 (stating that intent to voluntarily abandon
may be inferred from “words spoken, acts done, and other objective facts”). For instance,
abandonment is common in criminal cases when a suspect throws, drops, or discards an
incriminating item or contraband like drugs or weapons in anticipation of police interaction.
See, e.g., California v. Hodari, 499 U.S. 621, 629 (1991); United States v. Tinoco, 304
F.3d 1088, 1117 (11th Cir. 2002). Trash left outside of a home or dropped in the garbage
can of another person or business is another common situation involving abandoned
evidence. See, e.g., California v. Greenwood, 486 U.S. 35, 40 (1988). The idea in both

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scenarios is the individual discarded an item with the intent of not maintaining ownership
over it. Along these lines, the abandonment doctrine has been extended to opening and
searching discarded containers, because once abandoned, the loss of any privacy
expectation applies to both the container and anything inside. See, e.g., United States v.
McKennon, 814 F.2d 1539, 1546 (11th Cir. 1987) (per curiam) (“This Court has
specifically held that when a claimant relinquishes possession and disclaims ownership
of an article of luggage, any expectations of privacy become illegitimate.” (citation
omitted)); United States v. O’Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985) (concluding
that the defendant “did not have a reasonable expectation of privacy in a briefcase that
was discarded next to an overflowing trash bin on a busy city street”).
Although the abandonment doctrine has long been in place, Defendant argues that
this case does not align with current precedent. This is because, according to him, the
item discarded was a passcode-locked cell phone. To be clear, Defendant concedes that
he ditched the physical cell phone on May 31. But he argues that he still had a reasonable
expectation of privacy in the phone’s contents because the phone was passwordprotected and because he would not have discarded it but for his belief that the phone
was broken. (Doc. 56 at 13). In other words, he asserts that even if the phone worked
when he discarded it, the contents were not accessible without his passcode, and thus
he maintains standing to challenge the search of his phone’s contents. (Id. at 12).
Defendant’s argument is novel and extrapolates from the Supreme Court’s decision in
Riley v. California, 134 S. Ct. 2473 (2016).
In Riley, the Court examined how the search incident to arrest exception to the
warrant requirement applied to modern cell phones. The Court reiterated that concerns

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for officer safety and evidence preservation justify the search incident to arrest exception,
and that any such search is limited to the arrestee’s person or area of immediate control.
During a search incident to arrest, an officer may examine containers like cigarette packs
discovered on the arrestee or in an area that he might gain possession without a warrant.
Id. at 2483 (citing United States v. Robinson, 414 U.S. 218 (1974)).
The Court, however, found that searches of data on cell phones are untethered to
the justifications for a search incident to arrest. It reasoned that cell phones do not pose
a safety risk to police because “[d]igital data stored a cell phone cannot itself be used as
a weapon to harm an arresting officer or to effectuate an arrestee’s escape. . . . Once an
officer has secured a phone and eliminated any potential physical threats, however, data
on the phone can endanger no one.” Id. at 2485. The Court also elaborated that
destruction of evidence does not justify a warrantless search because once officers
separate the phone from the arrestee “there is no longer any risk that the arrestee himself
will be able to delete incriminating data from the phone.” Id. at 2486.
From there, the Court discussed an arrestee’s privacy interest when taken into
police custody. Id. at 2488. “The fact that an arrestee has diminished privacy interests
does not mean that the Fourth Amendment falls out of the picture entirely.” Id. The Court
acknowledged that lower courts have applied the search incident to arrest exception to a
variety of personal items carried by the arrestee. But the Court noted, “[m]odern cell
phones, as a category, implicate privacy concerns far beyond those implicated by the
search of a cigarette pack, a wallet, or a purse.” Id. at 2488-89.
The Court also outlined the quantitative and qualitative differences between cell
phones and other items that could be found on an arrestee’s person. Id. at 2489. Likening

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cell phones to “minicomputers,” the Court discussed the vast storage capacity of cell
phones, the privacy implications that data storage causes, and the pervasiveness of the
devices in today’s society. Id. at 2489-90. The Court expressed concern that today nearly
every adult stopped by the police will have a cell phone filled with revealing and sensitive
information about its owner and “[a]llowing the police to scrutinize such records on a
routine basis is quite different from allowing them to search a personal item or two in the
occasional case.”

Id. at 2490.

The Court further asserted that cell phones are

qualitatively different from non-digital objects in the detailed personal information they
contain such as internet search history, historical location information, and geographic
tracking. Id. “Indeed, a cell phone search would typically expose to the government far
more than the most exhaustive search of a house: A phone not only contains in digital
form many sensitive records previously found in the home; it also contains a broad array
of private information never found in a home[.]” Id. at 2491 (emphasis in original).
Finally, the Court recognized that “even though the search incident to arrest
exception does not apply to cell phones, other case-specific exceptions may still justify a
warrantless search of a particular phone.” Id. at 2494. The Court recognized an exigent
circumstance as one such exception:
In light of the availability of the exigent circumstances
exception, there is no reason to believe that law enforcement
officers will not be able to address some of the more extreme
hypotheticals that have been suggested: . . . a child abductor
who may have information about the child’s location on his cell
phone.
The defendants here recognize—indeed, they
stress—that such fact-specific threats may justify a
warrantless search of cell phone data. The critical point is
that, unlike the search incident to arrest exception, the exigent
circumstances exception requires a court to examine whether
an emergency justified a warrantless search in each particular
case.

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Id. (internal citations and footnote omitted) (emphasis added). To conclude its decision,
the Court wrote, “[o]ur answer to the question of what police must do before searching a
cell phone seized incident to an arrest is accordingly simple – get a warrant.” Id. at 2495.
Because of Riley, Defendant argues that the Supreme Court has placed cell
phones on a pedestal above other property when it comes to warrantless searches. But
Defendant reads Riley too broadly. Riley is limited to searches incident to arrest and
explicitly left the door open for the fate of cell phones in other types of warrantless
searches.
Abandonment is at issue here – not search incident to arrest. And that distinction
makes a difference. The abandonment doctrine is conceptually different from a search
incident to arrest, and thus the application to cell phones is different.

Searching

abandoned property is justified because an individual intended to relinquish ownership
interest in the item, and thus he lost his privacy interest therein. Without a reasonable
expectation of privacy, there can be no Fourth Amendment violation. In contrast, a
suspect subject to a search incident to arrest has not relinquished ownership of any item.
But police are nevertheless justified to search the arrestee’s person and immediate area
to ensure officer safety and prevent destruction of evidence.
Much of the Supreme Court’s reasoning in Riley was devoted to why searching
data on a cell phone did not fit the traditional justifications for a search incident to an
arrest. That line of reasoning, as noted, is not applicable to the abandonment doctrine.
The remaining reasoning in Riley was dedicated to an arrestee’s privacy interests during
a search incident to arrest. The undersigned is mindful of the privacy concerns with cell
phones given their storage capacity and the myriad of data (e.g., pictures, bank records,

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medical records, text messages, internet history, etc.) stored on them. But there are no
privacy interests with abandoned property, so the privacy concerns the Supreme Court
expressed in Riley are not relevant to abandoned cell phones. Also, the prevalence of
most adults having cell phones on their person or within their immediate control is a far
cry from an individual who intentionally abandons a cell phone in a public place with no
intent to reclaim it. Because of these differences, the Supreme Court’s reasons for
categorically excluding cell phones from searches incident to arrest do not extend to
abandonment. Until the Supreme Court or Eleventh Circuit states otherwise, the longstanding precedent on abandonment binds this Court in this case.
Before the Court turns to applying the facts of this case to the settled abandonment
doctrine, it has one more hurdle – KC v. State, 207 So. 3d 951 (4th DCA 2016). Defendant
relies on this case because the Florida appellate court found exactly as he asks this Court
to find, namely, accessing the contents of a password-protected cell phone without a
warrant violates the Fourth Amendment. Id. at 982.
In K.C., a fleeing suspect left a password-protected cell phone in a stolen car. The
pursuing officer confiscated the phone, which sat at the police station for several months
unclaimed. Because the police considered the phone to have been abandoned, the
forensic unit unlocked the device, without a warrant, to determine its owner. Enter the
defendant who was charged with burglary.

The defendant successfully moved to

suppress his cell phone’s contents. He argued that the police could not search property
that was passcode-protected without a warrant. According to the defendant, even though
he abandoned the physical cell phone, he retained an expectation of privacy in its
contents by virtue of the passcode protecting the phone. Id. at 953.

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The Florida appellate court agreed with the defendant. It held that warrantless
searches of abandoned cell phones, the contents of which are password protected, are
per se unconstitutional. Id. at 956. It stated,
[w]hile we acknowledge that the physical cell phone in this
case was left in the stolen vehicle by the individual, and it was
not claimed by anyone at the police station, its contents were
still protected by a password, clearly indicating an intention to
protect the privacy of all the digital material on the cell phone
or able to be accessed by it.
Id. at 955. In reaching its holding, the court relied on and extended Riley. It was
persuaded by Riley’s reasoning of how cell phones are quantitatively and qualitatively
different from other objects that might be subject to a search. Id. at 953-54.
But it was not lost on the court that its decision was the minority view. Indeed, it
noted that it agreed with the dissenting opinions in two state court cases addressing the
same issue. Id. at 956-57 (citing State v. Brown, 414 S.C. 14 (S.C. Ct. App. 2015) and
State v. Samalia, 186 Wash. 2d 262 (2016)). In Brown, the majority found that the police
properly searched the defendant’s passcode-locked cell phone without a warrant because
the objective facts showed that he abandoned the device at the scene of the crime. Id.
at 28-29 (“[I]n the case of a smartphone, the mere use of a passcode does not always
lead law enforcement to conclude the owner of the phone retained an expectation of
privacy in the phone and its contents when other objective facts to the contrary are
available.”). Although the dissent reached the opposite conclusion, it noted that “[t]he
officers’ delay in accessing the cell phones belies the presence of any exigent
circumstances justifying the warrantless intrusion.”

Id. at 30-31 (citation omitted).

Similarly, in Samalia, the majority found that “although [the defendant] initially had a
constitutionally protected privacy interest in the cell phone and its data, he abandoned

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that interest when he voluntarily left the cell phone in a stolen vehicle while fleeing from
a lawful traffic stop.” 186 Wash. 2d at 266, 272-73. The dissent, however, concluded
that “[i]f government officials discover a cell phone and want to search its digital data for
evidence of criminal activity, they may seize and secure the cell phone to preserve any
evidence it may contain, but they must obtain a warrant before searching its digital data.”
Id. at 290-91.
Defendant urges this Court to adopt the logic of K.C. and the dissenting opinions
in Brown and Samalia. The Court respectfully declines to do so. To start, K.C. is not
binding on this Court. And for the reasons previously stated, the Court does not agree
that the reasoning in Riley for why cell phones should not be subjected to a warrantless
search incident to arrest applies to abandoned cell phones with or without a passcode.
Recall that the Supreme Court was concerned about the capacity to store private
information on a cell phone that far exceeds that of other physical objects.

But

abandonment is about intent, and when a person abandons a physical object, he
maintains no right of privacy in the contents. This is fundamentally different from a search
incident to arrest, and the decision in K.C. does nothing to persuade this Court otherwise.
Also telling, the Supreme Court in Riley did not require law enforcement officers to obtain
a warrant to search every phone that falls into their possession. Riley, 134 S. Ct. at 2494
(“[E]ven though the search incident to arrest exception does not apply to cell phones,
other case-specific exceptions may still justify a warrantless search of a particular
phone.”). In fact, it recognized an exigent circumstance like the one here – a child
abductor who may have information about the child’s location on his cell phone. The law
enforcement witnesses consistently testified that they were entrenched in a statewide

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search for a missing nine-year old child who still has not been found to date. Time is of
the essence in missing children cases, and from May 31 to June 5 when they searched
his cell phone, Defendant was a lead suspect in the child’s disappearance. This is a
distinguishing fact from K.C. and the other dissenting opinions that Defendant cannot
circumvent.
At bottom, the passcode on Defendant’s cell phone does not save the day for him
under the facts of this case. The Court sees no reasons to separate the contents of the
cell phone from the physical device for purposes of abandonment. And, contrary to
Defendant’s argument, there is no rational basis from Riley or KC for the Court to do so.
Against the above law and analysis, the Court turns to the abandonment doctrine
under the facts of this case. Considering all the relevant facts and circumstances on May
31 and the days before, Defendant’s actions show that he intended to voluntarily and
knowingly abandon his cell phone. Defendant testified that he knew the police were
coming to Orlando to speak with him for a second time about the missing child. In fact,
Defendant called Agent Marsian while she, Detective Mazzotta, and Detective Lathrop
were en route to his home. And Agent Marsian told Defendant that they would be arriving
within fifteen minutes. But Defendant was not there when the officers arrived – he was
supposedly lost on a walk in a rainstorm. And while supposedly lost, Defendant discarded
his cell phone in a ditch that ran parallel to a public road next to an apartment complex.
That apartment complex is mowed weekly, which is how Steven Morehouse came to find
the phone the next day. And Defendant knew that an individual named “Esteban”4 found

4

Esteban is the Spanish version of Steven.

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his phone, but he did nothing to retrieve it. In fact, Defendant testified that he bought
another cell phone after he discarded the phone at issue.
Regarding Defendant’s claim that he only discarded his cell phone because it was
waterlogged, the Court rejects his testimony as not credible. See United States v. Castro,
723 F.2d 1527, 1533 (11th Cir. 1984) (stating it is the district court's function to evaluate
the credibility of witnesses when ruling on a motion to suppress evidence). Instead, the
Court credits Morehouse’s testimony on the phone’s condition when he found it. Although
the parties agree that it rained on May 31, Agent Marsian testified that she called
Defendant several times before it rained and that he never answered or returned her calls.
This is consistent with Morehouse’s testimony that he found the cell phone powered on
with low battery and twenty-seven missed calls. Morehouse stated that the phone looked
brand new and undamaged when he found it in the ditch despite the weather’s elements.
Morehouse also testified that he answered a call on the phone, which indicates that the
phone was not broken. Morehouse said that he was able to charge the phone and that
he intended to keep it for his own use after his acquaintance bypassed the passcode. In
testifying, Morehouse exhibited all the signs of credibility. His recitation of the events
followed a logical pattern, he had no discernable interest in the outcome of the case, and
he had no prior knowledge of or contact with Defendant. In the face of Morehouse’s
testimony, Defendant, who has an obvious interest in suppressing the phone’s contents,
was incredulous in stating that his phone was broken when he discarded it.
Defendant’s actions after May 31 further show an intent not to reclaim his cell
phone. Soon after discarding the phone, he withdrew thousands of dollars from a bank,
paid a $250 taxi fare to travel from Orlando to Okeechobee, and arranged passage to

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Texas or the Mexican border. Defendant also never attempted to contact the police after
the May 31 scheduled meeting. In fact, the next time police had contact with Defendant
was three days later when they stopped him in Okeechobee mid-pursuit for Texas or the
Mexican border. Objectively speaking, Defendant made a voluntary and calculated
decision to cease all efforts to reclaim his phone.
Turning to Defendant’s passcode-protected position, his argument contravenes his
testimony that he deleted the alleged child pornographic images on his cell phone prior
to discarding the device. And to the extent that he relies on a smartphone application
called Vault for a two-layer of password protection argument, that position falters given
that the child pornography images recovered from his phone were not stored in that
application.
It may be that Defendant did not expect the contents of his phone to become known
to the police or other members of the public. But “[a]n expectation of privacy does not
give rise to a Fourth Amendment protection . . . unless society is prepared to accept that
expectation as objectively reasonable.” Greenwood, 486 U.S. at 40. Society would not
accept as reasonable Defendant’s claim to an expectation of privacy in a discarded cell
phone – passcode or not – left on the side of a public road in an area accessible to
pedestrians or other members of the public.
Taking the above facts and circumstances together, Defendant abandoned his cell
phone and its contents and made no intent to reclaim possession or ownership over the
device. The Court, therefore, finds that Defendant lacks standing to bring the motion to
suppress.
Accordingly, it is now

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 Case 2:16-cr-00068-SPC-CM Document 104 Filed 05/17/17 Page 18 of 18 PageID 515

ORDERED:
Defendant Jorge Guerrero-Torres’s Motion to Suppress (Doc. 56) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 17th day of May, 2017.5

Copies: Counsel of Record

5

The Court enters this Order post-trial because of the extensive pretrial publicity
surrounding Defendant’s case. In this Order, the Court found Defendant not credible in
his testimony on the so-called damaged condition of his cell phone when he discarded it.
Consequently, the Court withheld issuing this written Order to avoid any potential
prejudice to Defendant because the Court’s finding on his credibility could have tainted
potential jurors had they been selected for the jury and had Defendant elected to testify
at trial.

18