United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4308
                        ___________________________

                             United States of America

                        lllllllllllllllllllPlaintiff - Appellee

                                          v.

                            Prentiss Anthony Crumble

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                           Submitted: October 20, 2017
                              Filed: January 2, 2018
                                 ____________

Before WOLLMAN and SHEPHERD, Circuit Judges, and GOLDBERG,1 Judge.
                         ____________

SHEPHERD, Circuit Judge.

      On October 21, 2014, at approximately 1:28 p.m., police received reports of
shots being fired between two vehicles in St. Paul, Minnesota. Dispatch informed
responding officers that one of the vehicles—a tan Buick—had crashed into a house


      1
       The Honorable Richard W. Goldberg, Judge for the United States Court of
International Trade, sitting by designation.
and its two male occupants had fled on foot. Officers arrived at the scene to find the
wrecked Buick with bullet holes along its passenger side and a shot-out rear window.
They noticed the Buick’s key in its ignition and a handgun on the driver’s side
floorboard. A witness informed the officers that after the crash the other vehicle’s
shooter continued to fire at the Buick. The witness stated that the Buick’s two
occupants fled the scene on foot heading west, describing one as a black male, in his
early 20s, wearing a white t-shirt. Another witness also reported seeing an
approximately 25-year-old black male in a white t-shirt running westward from the
Buick. Officers found a man matching this description hiding behind a shed a block
and a half away. That man was appellant Prentiss Crumble.

       Officers took Crumble into custody and drove him to the scene of the wrecked
Buick—where he denied any knowledge of the shooting or the Buick. When an
officer searched the Buick later that day, he found a cell phone on the driver’s seat,
which he secured into evidence. The following day, the officer applied for a search
warrant to search the cell phone for “information as to the second occupant in the
Buick or further information related to the crime.” A county judge issued a warrant
to search “[a]ll electronic data (including but not limited to contacts, calenders, call
records, voice messages, text messages, photo and video files) stored in” the phone.
In the subsequent search, the officer found a video of Crumble inside a vehicle
wearing a white t-shirt and brandishing a handgun similar to that recovered from the
Buick. The video was recorded shortly before the shooting on October 21, 2014 at
1:15 p.m.

      Crumble was charged with being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e). Crumble moved to suppress the evidence
recovered from the cell phone. The magistrate judge recommended granting
Crumble’s motion to suppress, finding Crumble had not abandoned his Fourth
Amendment rights in the phone. The district court rejected the magistrate judge’s
recommendation, concluding that the evidence from the cell phone was admissible

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because Crumble abandoned the Buick and the phone left in it when he fled and
subsequently denied any knowledge of the vehicle. The district court alternatively
held that the search warrant was supported by probable cause and did not lack
particularity or amount to a general warrant. Finally, even if there were no probable
cause or a lack of particularity, the good-faith exception applied because it was
objectively reasonable for the police to rely on the warrant.

       Crumble entered a conditional guilty plea, reserving his right to appeal the
district court’s denial of his motion to suppress the evidence obtained in the search
of his cell phone. At sentencing, the government sought application of the Armed
Career Criminal Act (“ACCA”) based on Crumble’s prior felony convictions under
Minnesota law, which included a conviction for second-degree assault, a conviction
for second-degree burglary, and two convictions for third-degree burglary. Crumble
argued the burglary convictions were not violent felonies under the ACCA. The
district court disagreed and imposed the ACCA mandatory minimum sentence of 15
years in prison. Crumble now appeals his conviction and sentence.

                                           I.

       We first take up Crumble’s Fourth Amendment challenge to the search of the
cell phone. The Fourth Amendment protects “against unreasonable searches and
seizures.” U.S. Const. amend. IV. “[I]n order to claim the protection of the Fourth
Amendment, a defendant must demonstrate that he personally has [a reasonable]
expectation of privacy in the place searched . . . . ” Minnesota v. Carter, 

,
88 (1998). Therefore, we must initially consider whether Crumble had a reasonable
expectation of privacy in the cell phone he left behind in the Buick.

       It is well-established that a defendant does not have a reasonable expectation
of privacy in abandoned property. See United States v. Tugwell, 

, 602
(8th Cir. 1997). Thus, if Crumble abandoned the cell phone, he forfeited his

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expectation of privacy and cannot raise a Fourth Amendment challenge to the
subsequent search. See 

search of abandoned property does not
implicate the Fourth Amendment, for any expectation of privacy in the item searched
is forfeited upon its abandonment.”). “The issue is not abandonment in the strict
property right sense, but rather, whether the defendant in leaving the property has
relinquished [his] reasonable expectation of privacy . . . . ” 

marks omitted). A finding of abandonment depends on the totality of the
circumstances, with “two important factors [being] denial of ownership and physical
relinquishment of the property.” 

marks omitted). Courts
consider only “the objective facts available to the investigating officers, not . . . the
owner’s subjective intent.” United States v. Nowak, 

, 948 (8th Cir.
2016) (per curiam) (internal quotation marks omitted).

      Here, the district court found that Crumble abandoned the cell phone. We
review this factual finding for clear error, “affirm[ing] the district court’s
abandonment finding unless its decision is ‘unsupported by substantial evidence,
based on an erroneous interpretation of applicable law, or, in light of the entire
record, we are left with a firm and definite conviction that a mistake has been made.’”
United States v. Ruiz, 

, 984 (8th Cir. 1991) (quoting United States v.
Meirovitz, 

, 1379 (8th Cir. 1990)).

       Based on the totality of the circumstances, we cannot say that the district court
clearly erred in finding Crumble abandoned the cell phone in the Buick. After the
crash, Crumble fled the scene, leaving the Buick wrecked on a stranger’s lawn. The
Buick’s key was in the ignition and its back window was shot out—allowing for easy
access to the vehicle and its contents—which included a gun on the floorboard and
the cell phone on the driver’s seat. Crumble claims he was not fleeing from police,
but rather attempting to get away from the shooter in the other vehicle.
Abandonment, however, does not turn on Crumble’s subjective intent, but rather “the
objective facts available to the investigating officers.” 

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(internal quotation marks omitted). Based on these objective facts, the district court
did not clearly err in concluding Crumble had abandoned the vehicle and its contents,
including the cell phone. See United States v. Taylor, 

, 1025-26 (8th
Cir. 2006) (finding defendant abandoned cell phone when he dropped it on street
while fleeing vehicle); see also United States v. Smith, 

, 660 (8th Cir.
2011) (finding defendant abandoned vehicle and contents when he fled, leaving door
open, key in ignition, and motor running); United States v. Tate, 

, 1330
(8th Cir. 1987) (finding defendant abandoned vehicle and contents when he fled,
leaving vehicle unoccupied and unlocked).

       Moreover, Crumble initially denied any knowledge of the wrecked Buick,
evincing his intent to abandon the vehicle and its contents. See United States v.
Nordling, 

, 1470 (8th Cir. 1986) (finding defendant’s “denials
objectively demonstrate an intent to abandon the property”). Only the following
day—after police had already seized the cell phone—did Crumble admit to having
been in the Buick. This admission did not constitute a reassertion of a privacy
interest in the abandoned cell phone. See 

this Court to categorically deny application of the abandonment
doctrine to cell phones. We decline to do so. Crumble points to Riley v. California,
where the Supreme Court held that the search incident to arrest exception does not
apply to cell phone searches, in part because cell phones hold “the privacies of life.”

, 2494-95 (2014) (internal quotation marks omitted). However,
Riley’s holding is limited to cell phones seized incident to arrest. 

Riley
was explicit that “other case-specific exceptions may still justify a warrantless search
of a particular phone.” 

Other courts have found abandonment to be one
such exception. See, e.g., United States v. Quashie, 

, 141-42
(E.D.N.Y. 2016) (finding Riley does not eliminate abandonment exception for cell
phones).



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      We conclude the district court did not clearly err in finding abandonment and
denying Crumble’s motion to suppress. Because we affirm the district court’s
holding based on abandonment, we need not consider whether the warrant was valid.
Cf. 

(“warrantless search of abandoned property does not
implicate the Fourth Amendment”).

                                          II.

       We next turn to Crumble’s sentencing challenge. The district court sentenced
Crumble to the ACCA mandatory minimum of 15 years imprisonment. The ACCA
applies when a defendant convicted under 18 U.S.C. § 922(g) has three prior
convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).
As noted earlier, Crumble’s prior felony convictions include a Minnesota conviction
for second-degree assault, a Minnesota conviction for second-degree burglary, and
two Minnesota convictions for third-degree burglary. Crumble argues his burglary
convictions do not qualify as violent felonies under the ACCA, and the government
agrees. We review whether a prior conviction qualifies as a violent felony de novo.
United States v. Shockley, 

, 1062 (8th Cir. 2016).

       The ACCA’s definition of “violent felony” includes burglary. 18 U.S.C.
§ 924(e)(2)(B)(ii). To determine whether a state burglary conviction qualifies as
burglary under the ACCA, we must first determine whether to apply the categorical
approach (used when an indivisible statute lists alternative means of committing a
single crime) or the modified categorical approach (used when a divisible statute lists
alternative elements to define multiple crimes). See Mathis v. United States, 136 S.
Ct. 2243, 2248-49 (2016). Under the categorical approach, a state burglary
conviction qualifies only if its statute’s elements are the same as, or narrower than,
those of generic burglary, which is an “‘unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.’” Descamps v.



                                         -6-
United States, 

, 2283 (2013) (quoting Taylor v. United States, 

, 599 (1990)).

      Minnesota’s third-degree burglary statute provides that:

      Whoever enters a building without consent and with intent to steal or
      commit any felony or gross misdemeanor while in the building, or enters
      a building without consent and steals or commits a felony or gross
      misdemeanor while in the building . . . commits burglary in the third
      degree . . . .

Minn. Stat. § 609.582, subdiv. 3. In determining whether Minnesota third-degree
burglary qualifies as a violent felony under the ACCA, this Court’s decision in
United States v. McArthur, 

(8th Cir. 2017) is controlling. There, this
Court found Minnesota’s third-degree burglary statute to be indivisible and applied
the categorical approach. 

While the first alternative means in the
Minnesota statute (entering with intent to commit a crime) qualifies as generic
burglary, the second alternative means (unlawful entry followed by the commission
of a crime) does not. 

That is because the second alternative means
“does not require that the defendant have formed the ‘intent to commit a crime’ at the
time of the nonconsensual entry or remaining in,” as is required by the definition of
generic burglary in Taylor. 

Thus, Minnesota third-degree burglary “is
broader than generic burglary” and does not qualify as a predicate conviction under
the ACCA. 

burglary statute provides that:

      Whoever enters a building without consent and with intent to commit a
      crime, or enters a building without consent and commits a crime while
      in the building . . . commits burglary in the second degree . . . .



                                         -7-
Minn. Stat. § 609.582, subdiv. 2(a). Both parties agree that because this statute
includes the same overbroad second alternative means as Minnesota’s third-degree
burglary statute (unlawful entry followed by the commission of a crime), Minnesota
second-degree burglary does not qualify as a violent felony under the ACCA. Indeed,
this Court’s analysis of Minnesota’s third-degree burglary statute in McArthur applies
with equal force to Minnesota’s second-degree burglary statute. The statute is
indivisible, so we apply the categorical approach. See 

(citing State v. Gonzales, No. A15-0975, 

, at *2-3 (Minn. Ct. App.
June 13, 2016)). Because a conviction under the second alternative means of the
statute “does not require that the defendant have formed the ‘intent to commit a
crime’ at the time of the nonconsensual entry or remaining in,” Minnesota second-
degree burglary “is broader than generic burglary” and does not qualify as a predicate
conviction under the ACCA. See 

       Because Crumble’s Minnesota burglary convictions do not qualify as violent
felonies, Crumble has no more than one predicate conviction. The ACCA mandatory
minimum, therefore, does not apply. We vacate his sentence and remand to the
district court for resentencing.

                                         III.

     For the foregoing reasons, we affirm the district court’s denial of Crumble’s
motion to suppress and remand for resentencing in accordance with this opinion.
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