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April 7 — An ex-husband can't argue his former employer violated the Fourth Amendment when it searched an old cell phone of his that his ex-wife had in her possession for an extended period of time, the Southern District of Ohio held March 25.
Despite the fact that Michael Sollenberger lost his job over the cellphone contents, the court found that his choice to potentially abandon the phone in his wife's possession rendered any searches of its contents reasonable.
“[T]he facts as alleged support the assertion that Sheriff Defendants' could have reasonably concluded Defendant Sollenberger's consent to the search was valid because the old phone was abandoned, as it was left behind at Defendant Sollenberger's residence when he moved out, the phone remained there for an extended period, and the phone did not contain any sort of password protection,” the court explained.
In mid-2014, defendant Jennifer Sollenberger accessed an old cell phone that belonged to her ex-husband, which she had been in possession of and which was not password protected. She had information extracted and then sent some of that information to the National Association for the Advancement of Colored People. In December 2014, the NAACP sent 105-copied pages of text messages from the phone to Plaintiff Sollenberger's employer, Montgomery County Sheriff's Office. The pages contained derogatory statements. Eventually, the sheriff's office fired Plaintiff Sollenberger. He sued in May 2015, bringing state and federal claims against his ex-wife and the sheriff's office. All of the defendants moved to dismiss.
The sheriff's office and related defendants argued they were protected by qualified immunity, which affords immunity from suit to government officials as long as the officials' alleged conduct doesn't violate statutory or constitutional rights “of which a reasonable person would have known.”
According to Plaintiff Sollenberger, the sheriff's office violated his Fourth Amendment rights because it conducted a forensic examination of his own phone without any warrant, in response to receiving the pages of text messages from the NAACP.
The Sheriff defendants argued the search was reasonable and permissible as it was conducted with Jennifer Sollenberger's consent and because the information at issue was provided by third parties.
The court agreed, noting the receipt and review of the NAACP's information was reasonable because law enforcement is allowed to review evidence turned over by private, third parties.
“Following this review, the Sheriff's Office initiated an investigation against Plaintiff Sollenberger and the other employees involved,” the court said. “The 105-copied pages provided ‘reasonable grounds' for suspecting that a search of Plaintiff Sollenberger's old cell phone would yield evidence that Plaintiff Sollenberger was ‘guilty of work-related misconduct.'”
As for the consent from Jennifer Sollenberger, the court found that the Sheriff defendants' could have reasonably concluded the consent was valid because the old phone was abandoned at her residence when Plaintiff Sollenberger moved out.
Plaintiff Sollenberger argued that his ex-wife possessed his old phone without his knowledge or consent, but failed to address whether or not the phone was essentially abandoned, which diminishes any reasonable expectation of privacy. Abandonment occurs a person prejudiced by the search of an object voluntarily discarded or left behind his interest in the property. The court concluded that the phone was left at the ex-wife's house when Michael Sollenberger moved out and remained there for an extended period.
“Plaintiff Sollenberger has not alleged facts sufficient to establish Defendant Sollenberger's inability to give consent to the search,” the court concluded.
Plaintiff Sollenberger also argued that his constitutional right was established by Riley v. California, 134 S. Ct. 2473 (2014). The court wasn't swayed, however.
“ interprets the warrant exception for searches incident to arrest, whereas the case here involves the parameters of the warrant exception for investigations of employee misconduct,” the court explained.
The court concluded that the defendants were protected by qualified immunity and dismissed the unlawful search claim.
The court also analyzed claims against Jennifer Sollenberger, including an invasion of privacy claim under Ohio tort law. According to Michael Sollenberger, his ex-wife took the phone without his knowledge or consent and extracted digital information.
“Although cell phones generally contain personal information, such as e-mails, text messages, and pictures, a reasonable person would not be ‘shocked' by another's access to their old cell phone that has been essentially ‘abandoned' at their soon to be ex-wife's home for an extended period,” the court explained, dismissing the claim.
The remaining claims were also dismissed, and the case terminated.
Judge Thomas M. Rose wrote the order.
John D. Smith, of John D. Smith Co. LPA in Springboro, Ohio, represented Michael Sollenberger.
Jade K. Smarda, of Faruki, Ireland and Cox PLL in Dayton, Ohio, represented the Sheriff defendants.
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The full text of Sollenberger v. Sollenberger is available at http://www.bloomberglaw.com/public/document/Sollenberger_v_Sollenberger_No_315CV00213_2016_BL_93748_SD_Ohio_M
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