Text Messages and “Invasion of Private Affairs”

After being charged with attempted possession of heroin in violation of Washington’s Revised Code § 69.50.407 (attempt) and §69.50.4013(1) (possession of a controlled substance), Shawn D. Hinton filed a motion to suppress evidence. State v. Hinton, __ P.3d __, 2012 WL 2401673 (Washington Court of Appeals 2012).

More precisely, he moved to suppress “`any and all evidence obtained as a result of the search of the cell phone taken from Daniel Lee.’”  State v. Hinton, supra. To understand why that search mattered to Hinton, it’s necessary to understand how the case arose:

On November 3, 2009, when Detective Kevin Sawyer arrived to begin his shift, several officers gave Sawyer an iPhone they had seized from Daniel Lee, who had been arrested earlier that day on drug charges.  . . . [W]hile Sawyer had the iPhone in his possession, he heard a `ding’ from the iPhone, indicating it had received a new text message. . . . 

Sawyer picked up the iPhone and viewed the following message, which appeared in its entirety on the iPhone's screen: `Hey whats up dogg can you call me i need to talk to you.’ . . . The text message was from `Z–Shawn Hinton.’ . . . Sawyer knew Hinton from past arrests.

Sawyer responded to Hinton's text message using Lee's iPhone. The following text message exchange occurred:

`[Sawyer]: Can't now. What's up? . . .

[Hinton]: I need to talk to you about business. Please call when you get a chance. . . .

[Sawyer]: I'm about to drop off my last. . . .

[Hinton]: Please save me a ball. Please? I need it. I'm sick. . . .'

Through a series of additional text messages, the men agreed to meet for a drug transaction in a grocery store parking lot. Sawyer contacted Hinton in the parking lot and arrested him. After the arrest, Sawyer called the phone number associated with Z–Shawn Hinton in Lee's iPhone, and Hinton's cell phone rang.

State v. Hinton, supra.

The Court of Appeals explained that the “basis of the officers' seizure of Lee's iPhone” was not clear from the record, but that did not matter because whether it was “lawfully seized is not at issue in this case.”  State v. Hinton, supra.  It also noted that (i) to find “the phone number associated with Z–Shawn Hinton,” Sawyer had to “navigate to the contacts folder on Lee's iPhone” and (ii) it was “unclear from the record when Sawyer accessed the contacts folder to retrieve Hinton's phone number.”  State v. Hinton, supra.  And the court also noted that at the hearing on the motion to suppress, Sawyer testified that “a `ball’ is `a drug weight’ equivalent to `approximately 3.54 grams’ and `sick’ is `a drug term’ that describes `when people are coming off the high and . . . looking to get some more.” State v. Hinton, supra. 

In his motion to suppress, Hinton argued that Sawyer’s actions violated “Washington Constitution, article I, section 7 and the 4th Amendment [to the U.S. Constitution].”  State v. Hinton, supra.  The prosecution argued, in response that “Hinton “`did not have a legitimate expectation of privacy in the text messages.’” State v. Hinton, supra. 

As I’ve noted in earlier posts, the 4th Amendment creates a right to be free from “unreasonable” searches but does not apply if law enforcement conduct does not result in a “search.”  As I’ve also explained, under the U.S. Supreme Court’s decision in Katz v. U.S. 389U.S. 347 (1967), searches violate a “reasonable expectation of privacy”, which is why the prosecution focused on that issue in its response to Hinton.  As I’ve also explained in earlier posts, to have such an expectation one must (i) believe the place or thing is “private” and (ii) society must accept that belief as objectively reasonable.

The Court of Appeals began its analysis of Hinton’s argument under the Washington state constitution.  As Wikipedia notes, every U.S. state has its own constitution.  So Hinton is moving to suppress under both the federal 4^th Amendment and state law.

Here, Hinton argued that he “had a reasonable expectation of privacy in the text message he sent to Lee's iPhone.”  State v. Hinton, supra.  The court found it was “important” that Hinton was “arguing a privacy interest in another's electronic device, not his own.”   State v. Hinton, supra.  It then analyzed his argument under both the state and federal constitutions.

It began with Article I § 7 of the Washington Constitution, which states that “`[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.’”

State v. Hinton, supra.  The court explained that this provision protects a person’s

home and private affairs from warrantless searches. . . . It is well settled that article I, § 7 affords qualitatively different -- and potentially broader -- protections than those provided by the 4th Amendment to the U.S. Constitution. . . . But merely holding that a given state constitutional provision affords enhanced protection in a particular context does not necessarily lead to the same result in a different context. 

State v. Hinton, supra.  As I’ve explained in earlier posts, a state constitution can’t provide less protection than the 4^th Amendment but it can provide more.

The Court of Appeals noted that in dealing with a motion to suppress under Article I § 7, it uses a “two-step analysis”:  First, it decides if the “State has intruded into a person's private affairs.” State v. Hinton, supra. If it finds the state has done this, the court then determines “whether the authority of law required by article I, § 7, justifies the intrusion, which is satisfied only by a valid warrant, limited to a few jealously guarded exceptions.”  State v. Hinton, supra.  It noted that “[v]oluntary exposure by a defendant is relevant to our inquiry and can negate an asserted privacy interest.”  State v. Hinton, supra.

After analyzing the facts in this case, the Court of Appeals found that Hinton’s Hinton's “text messages to Lee's iPhone are not Hinton's private affairs for purposes of article I, § 7”, for two reasons.  State v. Hinton, supra.  The first was that there “is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person's iPhone.”  State v. Hinton, supra.  (To analyze an Article I § 7 challenge, a court must consider state statutes, laws and case law support the privacy interest being asserted by a defendant.  State v. Hinton, supra.)

The other reason was that case law from another division of the Court of Appeals established a “distinction in article I, § 7 jurisprudence between when a governmental officer intercepts a message transmitted from the sender to the recipient and when a governmental officer views a message received by a third party.”  State v. Hinton, supra. In State v. Wojtyna, 70 Wash. App. 689, 855 P.2d 315 (Washington Court of Appeals 1993), officers seized a drug dealer’s pager and monitored its incoming calls; based on what they learned, a detective called one of the incoming numbers and arranged to meet the person who called (Wojtyna) for a drug deal.  State v. Wojtyna, supra.

The court held that the police violated neither the Washington Constitution or the 4^th Amendment by seizing “`a number sent to and received by a third party which happened to be Wojtyna's.’” State v. Wojtyna, supra (emphasis in the original). It noted that by “transmitting his number into a pager,” Wojtyna assumed the risk that it would be received by whomever was in possession of the pager or that its owner would disclose the contents to police. State v. Wojtyna, supra.  So, since the “confidentiality of the transmission was uncertain”, it was not “private” under either Article I § 7 or the 4^th Amendment. State v. Wojtyna, supra.

This court found that the Wojtyna applied here:  “Hinton transmitted messages to a device . . .over which he had no control. . . . [H]e voluntarily ran the risk that his messages . . . would be received by whomever possessed the iPhone,” and so “had no control over what that person might do with that message.”  State v. Hinton, supra.  So his text messages were not protected by Article I § 7. State v. Hinton, supra. 

The Court of Appeals basically applied this same analysis to Hinton’s 4^th Amendment argument, noting that he, like Wojtyna,

sent messages to Lee's iPhone, over which he had no control. . . .He ran the risk that whomever possessed the iPhone, whether it be Lee or someone else, would receive his messages. . . .The 4th Amendment does not protect Hinton's ‘misplaced trust that the message actually would reach the intended recipient.’  State v. Wojtyna, supra. 

State v. Hinton, supra. 

Hinton tried to distinguish Wojtyna by arguing that because cell phones can

now `perform[ ] many of the functions of a personal computer,’ an individual who sends a text message to a cell phone has a greater expectation of privacy in that communication than an individual, like . . . Wojtyna, who sends a message to a less sophisticated device like a pager. 

State v. Hinton, supra. 

The Court of Appeals rejected this argument, noting that it is

the individual's decision to transmit a message to an electronic device that could be in anybody's possession -- and not the receiving device's level of technological complexity -- that defeats the individual's expectation of privacy in that communication.

State v. Hinton, supra.

In arguing that “a person has a reasonable expectation of privacy `in e-mails and text messages sent and received from a cell phone’”, Hinton relied on a federal court of appeals’ decision involving emails.  State v. Hinton, supra (citing U.S. v. Warshak, 631 F.3d 266 (U.S. Court of Appeals for the 6th Circuit 2010)).  The Warshak court held that a person “enjoys a reasonable expectation of privacy in the contents of emails ‘that are stored with, or sent or received through, a commercial ISP.’’ U.S. v. Warshak, supra. The Court of Appeals rejected this argument because the Warshak court was concerned with the

legality of the government's request that a service provider intercept a customer's e-mails before the e-mails reached the intended recipient's computer. Here, there was no interception, through the service provider or otherwise. Sawyer simply read the text messages after they were delivered to the intended recipient.

State v. Hinton, supra.

It also found that while Warshak did not help Hinton, “its comparison of e-mails with traditional forms of communication is helpful and we adopt it to hold that text messages deserve privacy protection similar to that provided for letters. State v. Hinton, supra.

As I noted in an earlier post, the U.S. Supreme Court has, since the nineteenth century, held that “sealed mail” is “private” and therefore protected by the 4^th Amendment. The Hinton court noted that courts have “consistently applied the standard for letters to new technology.”  State v. Hinton, supra. It therefore found that “[l]ike letters, a [person] has a privacy interest in messages stored on his or her own cell phone”, which means such messages cannot “be intercepted and searched” by law enforcement officers unless the interception and search comply with the 4^th Amendment. State v. Hinton, supra.

The Court of Appeals therefore found that

[o]n his own iPhone, on his own computer, or in the process of electronic transit, Hinton's communications are shielded by our constitutions. But after their arrival, Hinton’s text messages on Lee's iPhone were no longer private or deserving of constitutional protection.

Accordingly, the trial court did not err by denying Hinton's motion to suppress.

State v. Hinton, supra.