On Thursday morning, a federal judge in Sacramento will evaluate a novel legal theory recently raised by the defense lawyer representing an admitted California burglar and suspected kidnapper.

The lawyer, Thomas Johnson, claims that cops shouldn’t have been able to pick up his client's Samsung Galaxy left at the scene of a burglary—which they used to call 911, determine the carrier, and eventually track down the suspect.

After a quick investigation of the March 2015 burglary in Dublin, California, about 35 miles east of San Francisco, Alameda County Sheriff's deputies zeroed in on a man named Matthew Muller. Over a few days, various law enforcement agencies executed a warrant at the South Lake Tahoe house where suspect Muller was believed to be staying. There, Muller was quickly arrested, and officials also found materials that matched a separate kidnapping case in Vallejo, California, that had been reported earlier in the year.

Muller was then charged in Contra Costa Superior Court for the June 2015 attempted burglary in Dublin, to which he pleaded no contest and admitted responsibility. However, he also was charged federally in the Vallejo kidnapping case, and he has pleaded not guilty.

Muller's indictment in the kidnapping case details a wild and harrowing account where a Vallejo woman and her boyfriend were bound with zip-ties and were made to wear blackened swimming googles. The man was instructed to send $15,000 to secure her release, while she was eventually driven to her hometown in Southern California and released two days later. As the Sacramento Bee reported, initially, investigators believed that the kidnapping story that the couple told was a hoax—until the victims spoke out in public and the kidnappers even contacted the Vallejo Police Department to insist that her story was authentic.

A real and crazier "Ocean's Eleven"

The federal criminal complaint quotes from two lengthy e-mails sent to a San Francisco Chronicle reporter, where the anonymous author details his participation in a car theft ring run from Mare Island, Vallejo. The kidnapping was the group's first foray into what they thought would be a more profitable operation.

"We fancied ourselves a sort of Ocean's Eleven, gentlemen criminals who only took stuff that was insured from people who could afford it," the letter states. "We now feel like the pieces of shit we have become."

The author also boasted of "ip surveillance, game cameras, a full electronic perimeter, you name it. Even a drone. A multi-thousand-dollar custom drone, not a kid’s toy.”

But all of that gear seems to have been betrayed by the simple act of accidentally leaving a phone behind.

According to the April 2016 23-page motion to suppress and request for an evidentiary hearing, which was written by defense attorney Thomas Johnson, the entire investigation of Muller began with the recovered Samsung phone found at the Dublin home.

The entire investigation of Mr. Muller began when a police officer without consent and without a warrant activated the keypad to a phone and began to develop information from that exact moment in time. This search was warrantless, unlawful and all the evidence obtained after the search should be suppressed. The search was the genesis of the entire investigation against Mr. Muller. It was quite literally the key that opened the door to the entire investigation and subsequent federal indictment.

If the judge sides with Johnson's theory, it would almost certainly halt the prosecution against Muller.

Federal prosecutors, for their part, reject this entire theory, saying that there was no Fourth Amendment search here because there is no privacy interest in abandoned property.

"It is well settled and unremarkable that a fleeing criminal has no reasonable expectation of privacy in the things that he discards while fleeing from the police," Phillip A. Talbert, an acting United States Attorney, wrote in the government’s response, which was filed in late May 2016.

This June 2015 robbery came roughly a year after the landmark Supreme Court decision, Riley v. California, which found in 2014 that police need a warrant to search a phone incident to arrest—however there are exceptions for exigent circumstances.

In a Wednesday blog post, Orin Kerr, a law professor at George Washington University, wrote:

With all of that said, it will be interesting to see whether the court looks at this differently because the property was a locked phone. In light of Riley v. California, should the standards for Fourth Amendment abandonment be different for locked phones than for other kinds of property?

What is abandoned, anyway?

According to court documents, this particular burglary episode began on June 5, 2015 at about 3:30am, when Alameda County Sheriff’s deputies responded to a home invasion call in Dublin.

Three deputies arrived, where a woman named Lynn Yen told them that a man had invaded their home—her husband tried to fight him off, while she fled to the bathroom to call authorities. Her husband, Chung Yen, stood beside her, bleeding from his forehead.

Soon after, Kelly Yen, the couple’s daughter, presented deputies with a Samsung Galaxy that she thought might belong to the suspect. Authorities were able to learn that it was a Verizon phone and then got a signed warrant that they presented to the company to obtain the subscriber information.

After scouring police records and conducting a preliminary investigation, the deputies eventually secured search warrants for two properties believed to be linked to the suspect, including one in South Lake Tahoe.

On June 9, 2015, a team of officers from the Alameda County Sheriff’s Department and the El Dorado County Sheriff’s Department converged on the Tahoe residence and executed their "no-knock" warrant. They found Muller and arrested him. Eventually, they found five drones and other items in his Vallejo storage unit.

In a June 15, 2016 filing, Muller admits that he was the burglar in the Dublin incident, that he had pleaded no contest to those local charges, and that the phone was his.

As part of that same filing, his lawyer, Thomas Johnson, reiterated that Muller did not "abandon" the phone: "There are simply no facts to show he dropped, threw, or otherwise tried to ditch the phone. He just ran out of the house without the phone."

Johnson continued:

An item that was misplaced and inadvertently left behind is not abandoned and Mr. Muller retains his right to privacy to contest the warrantless search of his cell phone. Whether the cell phone was abandoned is a disputed material fact that was not a contested issue in the state court proceedings. Thus, an evidentiary hearing is requested.

US District Judge Troy L. Nunley is set to hear arguments on this issue on Thursday morning at 9:30am in federal court in Sacramento.