                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.
Unpublished opinions are not binding precedent in this circuit.




                                2
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.”




                                             3
      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.




                                         4
                                            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.

                                              5
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

                                       6
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:

                                              7
      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.




                                        8
       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      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.

       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.




       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.



                                            9
                                    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




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