Intercepting Text Messages

A while back, I did a post about an officer’s reading text messages on a suspect’s seized cell phone, and someone asked about intercepting text messages. So I thought I’d do a post on that issue.

I’m going to use Commonwealth v. Frattaroli, 2010 925170 (Pennsylvania Court of Common Pleas 2010) to explore the issues involved in intercepting text messages. As usual, we’ll start with what happened in the case:

(1) Detective Joshua Martin is a detective with the Ferguson Township Police. . . .

(2) Detective Martin had developed a confidential informant who provided information that [Kristopher] Frattaroli was selling marijuana.

(3) The confidential informant made contact with Frattaroli by text message from his own phone.

(4) The informant then came to the police station and discussed these text messages with Detective Martin on April 28, 2009.

(5) While at the police station and in Detective Martin's presence, the informant text messaged Frattaroli to find out the apartment number he was supposed to meet to purchase the drugs.

(6) The informant received a text message back with the message, Bl.

(7) Based on this information, Detective Martin set up surveillance and the controlled buy took place in Frattaroli's apartment.

(8) Detective Martin . . . [was] able to verify that the phone number used to contact the confidential informant was Mr. Frattaroli's by using the internet. . . .

(13) Detective Martin never used the informant's phone to contact Frattaroli.

(14) Frattaroli sent the text messages to the informant while he was in his apartment with the door closed.

Commonwealth v. Frattaroli, supra. (The omitted paragraphs go to Frattaroli’s making incriminating statements and so aren’t relevant to the issues we’re concerned with.)

Frattaroli was apparently charged with selling drugs because he filed a motion to suppress the text messages the informant exchanged with Frattaroli and shared with Martin. Here’s how the judge who ruled on the motion to suppress described it:

The sole issue addressed in Mr. Frattaroli's brief . . . is, `Was Kris Frattaroli in his apartment with the door closed when Kris NLN texted back “B-1”?’ The court determines, based on Frattaroli's testimony at the suppression hearing that [he] was in his apartment with the door closed when he made the text messages to the confidential informant. However, the court cannot understand, nor does Frattaroli explain, how his location at the time the text messages were sent to someone outside his home has any relevance to the Wire Tap Act or the Fourth Amendment.

Commonwealth v. Frattaroli, supra. Frattaroli relied on the Pennsylvania Superior Court’s decision in Commonwealth v. Cruttenden, 976 A.2d 1176 (2007) as support for his claim that what happened in this case violated the Pennsylvania wiretap statute. Commonwealth v. Frattaroli, supra. I’m therefore assuming that Frattaroli’s argument was also based on the claim that what Detective Martin did somehow violated the state’s wiretap laws.

There is a federal wiretap act, usually referred to as Title III, which is codified in Title 18 of the U.S. Code. Section 2511 of Title 18 of the U.S. Code makes it a crime to intercept wire, oral or electronic communications without complying with the requirements of Title III. Section 2510(4) of Title 18 of the U.S. Code defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”

Pennsylvania’s wiretap act also makes it a crime to intercept “wire, electronic, and oral communications” without complying with its requirements and defines “intercept” as the “[a]ural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.” 18 Pennsylvania Consolidated Statues §§5703 & 5702(14). Both the federal and state statutes define electronic communications in a manner that encompasses text messages.

Back to Commonwealth v. Cruttenden: In that case, a police officer used a suspect’s cell phone, with his permission, to text-message another suspect (Lanier) and set up a meeting, at which Lanier was arrested, along with Cruttenden. Commonwealth v. Cruttenden, supra. Police found various incriminating evidence in the vehicle in which the two men were sitting when the officers contacted them and the by-now-defendants moved to suppress the evidence, claiming the officer’s using their colleague’s cell phone to email Lanier violated the state’s wiretap act. Commonwealth v. Cruttenden, supra.

The trial judge granted the motion to suppress and the Superior Court affirmed:

Based on the clear language of the statute . . . we find that the trial court did not err in finding the action taken by police in this case was an illegal interception pursuant to the Wiretap Act. . . . [T]ext messages constitute electronic communications as statutorily defined. Officer Houk intercepted those electronic communications using an electronic device, the Tracfone. The plain language of the statute does not require a separate device to be used by police to constitute a violation of the Wiretap Act. In fact, the statute defines interception as the acquisition of an electronic communication through any electronic device. Moreover, our Supreme Court has previously held as such in a similar context, when police intercepted communications by listening to a conversation on an extension telephone line.

Commonwealth v. Cruttenden, supra (emphasis in the original).

Frattaroli apparently tried to analogize what happened in his case to what happened in the Cruttenden case, but the Common Pleas Court judge didn’t buy the analogy:

In that case a police officer adopted the identity of a drug runner he had arrested and sent text messages to the person who was supplying the drug runner. The Superior Court held the officer's actions violated the Wire Tap Act because the officer intercepted the text messages using an electronic device, a cell phone. However, there are two crucial differences in Cruttenden and the case at bar. The first is that the officer in Cruttenden was posing as the drug runner to intercept messages intended for the drug runner. The second is that the officer's interception of the text messages was instantaneous.

In this case the informant received text messages from Frattaroli and then notified the police later. The informant did send one text message while at the police station and received a response. This message was still sent to the informant's phone and then relayed to Detective Martin. For these reasons the court believes that the case is readily distinguishable from Cruttenden.

Commonwealth v. Frattaroli, supra.

Frattaroli also made a 4^th Amendment argument. From what the judge said in his opinion, Frattaroli apparently argued, first, that what Detective Martin did violated the 4^th Amendment because it constituted a “search” of the text messages that was conducted without a warrant. Commonwealth v. Frattaroli, supra. The judge rejected this argument based on the Pennsylvania Superior Court’s decision in Commonwealth v. Proetto, 771 A.2d 823 (2001).

In Proetto, a witness (who wasn’t a suspect) saved a log of her chat room conversations with a suspect she met online and gave them to the police. Commonwealth v. Proetto, supra. After being charged with criminal solicitation, Proetto moved to suppress the log, arguing that police obtained it in violation of his rights under the 4^th Amendment. Commonwealth v. Proetto, supra. The Proetto court rejected that argument, holding that Proetto “had no expectation of privacy with regard to his e-mail or chat room conversations”, which meant there was no 4^th Amendment search and no constitutional violation. Commonwealth v. Proetto, supra.

Now it becomes confusing. Here, according to the judge, is how Frattaroli raised his analog of Proetto’s 4^th Amendment argument:

It becomes apparent that the question that should be asked is whether Frattaroli had an expectation of privacy in the invaded place. In this case, the invaded place constituted the text messages contained on the confidential informant's phone. However, this was not the issue raised by Frattaroli's attorney. . . . Frattaroli's attorney raises the sole issue of whether Frattaroli closing his apartment door while making a text message constituted conduct which exhibited an actual expectation of privacy which society is prepared to recognize as reasonable.

Commonwealth v. Frattaroli, supra. As I’ve noted in earlier posts, a “search” violates someone’s 4^th Amendment expectation of privacy in a place of thing if it is conducted without a search warrant or an applicable exception to the warrant requirement. As I’ve also noted, to have a 4^th Amendment expectation of privacy in a place or thing, (i) you must subjectively believe it’s private and (ii) society must agree that your expectation was objectively reasonable Like this judge, I don’t think Frattaroli’s 4th Amendment argument makes sense under this standard:

[T]he fact Frattaroli closed the door before sending text messages has no relevance whatsoever to the Fourth Amendment. . . . This argument is nearly akin to asking that a ransom letter received by a victim, who subsequently hands the letter over to police, should be suppressed because the perpetrator wrote the letter in his house with the door closed. For the aforementioned reasons discussed above, the court denies Frattaroli's . . . motion to suppress the text messages.

Commonwealth v. Frattaroli, supra.