After Angelique Jeanene Carle was convicted of “one count of
conspiracy to commit delivery of methamphetamine” in violation of Oregon
Revised Statutes §§
161.450 and 475.890(1), she appealed. State
v. Carle, 2014 WL 5032419 (Court of Appeals of Oregon 2014). The court began by noting that the case arose
after police found a cell phone (allegedly belonging to “Duane”) in a car reported
as stolen; the phone received a text message from someone (Carle) offering to
sell methamphetamine. State v. Carle, supra. The facts
surrounding the message are outlined in more detail below.
The Court of Appeals then went on to explain that Carle
moved to suppress evidence
of the text message found on Duane's
phone and the other evidence of [her] interactions with police, arguing that
the police, in viewing the text message on the phone, had conducted an unlawful
search under Article I, section 9, of the Oregon Constitution and the 4th Amendment to the United States Constitution. The trial court . . . denied that
motion.
State v. Carle, supra.
The Court of Appeals then explains that in her appeal, Carle
argued that “she had a privacy interest in the content of her text message that
police discovered on Duane's phone, and the police violated that interest -- i.e., they
conducted a `search’ when they viewed the message that was delivered to that
phone.” State v. Carle, supra. The
state argued that “a sender of a text message does not retain a privacy
interest in the digital copy of the text message found on the recipient's
phone.” State v. Carle, supra.
The Court of Appeals began its analysis of Carle’s argument
by explaining that
[w]e review the trial court's denial of
defendant's motion to suppress for errors of law. State v. Ehly, 317
Or. 66, 854 P.2d 421 (Oregon Supreme Court 1993). In doing so, we are bound by
the trial court's express and implicit factual findings if there is
constitutionally sufficient evidence in the record to support them. State v. Ehly, supra.
State v. Carle, supra.
It then outlined the facts that led to the prosecution in
more detail:
Two Salem police officers found a man
sleeping in the driver's seat of a stolen truck. One of those officers, Welsh,
placed the man, Ross, in the back of his patrol car on suspicion of
unauthorized use of a motor vehicle and identity theft. As the police searched
Ross and the truck, they found two cell phones -- one on Ross's person and the
other clipped to a visor in the truck. Ross told the police that the phone on
the visor was not his and it belonged to `Duane.’
While the officers continued to search
the vehicle, that phone received a text message. Welsh flipped open the phone
and saw a message from `Angel’ that `said something to the effect of, do you
know anybody that wants a 30.’ He used the phone to text back `maybe’ and then
turned the phone over to Bennett, a narcotics detective.
Bennett, who understood the text
message to refer to $30 worth of methamphetamine, texted back and forth with
Angel over the next few hours. Angel agreed to meet the detective and sell him
drugs at a specific spot, and she texted when she was about to arrive. When
police saw defendant arrive at the spot of the arranged drug sale, they
detained her and read her Miranda warnings and a
consent-to-search card. [Carle] consented to a search of her phone, and police
found the text messages Bennett had sent to her phone. [Carle] then told police
that she had planned to take the $30 and retrieve drugs from a nearby
apartment.
State v. Carle, supra.
As noted above, Carle moved to suppress evidence of the
initial text found on Duane's phone and
the evidence found during the subsequent police investigation, arguing that the
police had conducted an unreasonable search of her `intercepted communications’
under Article I, section 9 [of the Oregon Constitution] and the 4th
Amendment.
The state responded that `a person who
owns a cellular phone has an expectation of privacy within that phone, but a
third party sending text messages to that phone cannot have a privacy interest
or an expectation of privacy, and rather assumes the risk of who may be on the
receiving end of the messages that they send.’ . . .
State v. Carle, supra.
The court explains that the trial judge denied the motion to
suppress, finding Carle did not have a “`constitutionally protected privacy
interest in the cell phone seized from the stolen truck” and did not “have a
constitutionally protected privacy interest in the text messages she sent to
that phone and multiple other people[.]’” State
v. Carle, supra. After the judge denied her motion, Carle “waived her right
to a jury trial and proceeded to trial on stipulated facts”, after which the
judge convicted her, “sentenced her to 36 months' probation, and ordered her to
pay a money award.” State v. Carle, supra.
The Court of Appeals analyzed Carle’s arguments under both
the 4th Amendment and the Oregon Constitution. I will examine the
arguments in reverse order, i.e., the court began with the Oregon Constitution
and then analyzed the relevant issues under the 4th Amendment. I start with the 4th Amendment.
The Court of Appeals began that analysis by noting that
[f]or the purposes of the 4th
Amendment, a `search’ occurs when the police invade a defendant's `reasonable
expectation of privacy.’ . . . `That test involves two questions: first,
whether the individual has shown that he or she seeks to preserve something as
private; second, whether the individual's expectation of privacy is one that
society is prepared to recognize as reasonable.’ . . . [Carle] asserts that she
`had a reasonable expectation of privacy in the contents of text messages that
she sent to Duane,’ arguing that `[t]ext messages are similar to letters, which
carry an expectation of privacy.’
State v. Carle,
supra. As I have noted in prior
posts, this definition of a “search” comes from the U.S. Supreme Court’s
decision in Katz v. U.S., 389 U.S. 347 (1967).
The Court of Appeals explained that Carle was generally
“correct” that a person has
a reasonable expectation of privacy in
the content of letters. See, e.g., Ex parte Jackson, 96 U.S. 727 (1878) (`Letters and sealed packages * * * in the mail are as fully
guarded from examination and inspection, except as to their outward form and
weight, as if they were retained by the parties forwarding them in their own
domiciles’); U.S. v. Jacobsen, 466 U.S. 109 (1984) (`[l]etters and other sealed packages are in
the general class of effects in which the public . . . has a legitimate
expectation of privacy’). . . .
[T]he Supreme Court has recognized that
similar privacy concerns may be implicated when police access digital information,
including text messages, stored on cell phones. See Riley v.
California, 134 S.Ct. 2473 (2014) (`[w]ith all they contain and all they
may reveal, [modern cell phones] hold for many Americans the privacies of life’
and . . . police generally must obtain a warrant to search digital information
on a cell phone seized from a defendant who has been arrested); Ontario v. Quon, 560 U.S. 746 (2010) (observing in dicta that
`[c]ell phone and text message communications are so pervasive that some
persons may consider them to be essential means or necessary instruments for
self-expression, even self-identification’ which `might strengthen the case for
an expectation of privacy’).
State v. Carle,
supra.
The court also went on to explain that
context is everything. And contrary to [Carle’s]
assertion, the general notion that a person has a reasonable expectation of
privacy in letters or text messages does not compel the conclusion that she has
a reasonable expectation of privacy in a copy of a sent text message that is
found on the recipient's U.S. Postal Service or a common carrier, courts have
held that a sender's reasonable expectation of privacy, `to the extent it is
based solely upon the fact of his being the sender, terminates once delivery of
the goods has been made.’ Wayne R. LaFave, 6 Search and Seizure §11.3(f) (5th ed 2012); see, e.g., U.S. v. King, 55 F.3d 1193 (U.S.Court of Appeals for the 6th Circuit 1995) (`[T]he sender's expectation of
privacy ordinarily terminates upon delivery * * * even though the sender may
have instructed the recipient to keep the letters private’).
State v. Carle,
supra.
The Court of Appeals then articulated its holding on the
issue, noting that Carle
does not address those decisions. Nor
does she address decisions in which courts have similarly reasoned that a
sender of an electronic communication does not have a reasonable expectation of
privacy in the digital copy that has been delivered to the recipient's phone or
computer. In short, [she] has presented no reason why we should
reach a different result under the 4th Amendment. . . . We conclude, therefore,
that [Carle] had no reasonable expectation of privacy in the digital copy of
the text message that police found on Duane's phone.
In sum, because [she] had no privacy
interest in the digital copy of the text message found on Duane's phone, police
did not conduct a `search under . . . the 4th Amendment when they viewed
that text message on Duane's phone. Accordingly, the trial court did not err in
denying [Carle’s] motion to suppress evidence of that text and the resulting
evidence of [her] interactions with police.
State v. Carle,
supra.
In its analysis of whether Carle had a legitimate
expectation of privacy in the text message under Article 1 § 9 of the Oregon
Constitution, the court began by noting that this provision provides that
`[n]o law shall violate the right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable search, or seizure[.]’ A `search,’ under that provision, occurs
when a government agent intrudes into an individual's protected privacy
interest. State v. Meredith, 337 Or. 299, 96 P.3d 342 (Oregon
Supreme Court 2004). A protected privacy interest `is not the privacy that one
reasonably expects but the privacy to which one has a right.’ State
v. Campbell, 306 Or. 157, 759 P.2d 1040 (Oregon Supreme Court 1988) (citation
omitted; emphasis in original).
State v. Carle,
supra.
The Court of Appeals explained that in her appeal Carle
argued that she had a
privacy interest in `the contents of
the text messages that she had sent to “Duane.”’ She asserts that text messages
`by their nature connote a privacy interest,’ reasoning that those messages are
`intended for a specific recipient, implicitly entrusted to that person and
that person only.’ Comparing text messages to telephone conversations and
letters, [Carle] maintains that `[c]ourts have held that, under both the state
and federal constitutions, the contents of letters and phone conversations
carry a constitutionally protected privacy interest, such that a defendant can
suppress evidence that derives from an unlawful search of either the letter or
phone conversation.’ The analysis does not change, [Carle] argues, `merely
because the text messages were [found] on someone else's phone.’ . . .
[T]he state argues that the fact that
police found [Carle’s] text message on someone else's phone makes all the
difference. [It] acknowledges that Duane, as the purported owner of the
searched phone and the recipient of the text, `might have been entitled to
suppression of the text from [Carle] by virtue of his possessory interest in
his phone.’ But, in the state's view, a sender of a text like [Carle] `has no
cognizable privacy interest in a text that she voluntarily sent to, and which
was then received by, a phone in which the sender has no possessory interest.’ The
state reasons that, once [Carle] sent that message, she made it `readily
available to whoever [could] or [did] access the phone that receive[d] the text.’
State v. Carle,
supra.
The court goes on to explain that since the police “searched
a phone that purportedly belonged to `Duane,’” not Carle, “we are not concerned
with any privacy interest” she “had in any digital copies of the sent text
messages on her own phone” nor “are we concerned with what privacy interests
Duane had with respect to the text messages on his phone.” State
v. Carle, supra. Therefore, the
“narrow question here . . . is whether defendant retained any
protected privacy interest in the text message that she sent to Duane, once it
was delivered to his phone.” State
v. Carle, supra.
Since the Oregon Supreme Court has not addressed this issue
“with regard to electronic communications”, the parties, and the court, relied
on “cases addressing whether a person retains a privacy interest in personal
property that she gives to another.” State
v. Carle, supra. The court then reviewed several Oregon cases, but one it
seemed to find on point was State v. Howard/Dawson, 342 Or. 635,
157 P.3d 1189 (Oregon Supreme Court 2007), noting that in the Howard/Dawson case, the defendants
argued that they
retained a privacy interest in garbage
that they turned over to a sanitation company without any restriction on its
disposition. . . . The court disagreed, explaining that the defendants'
privacy rights were controlled by `the legal relationship between [the] defendants
and the sanitation company’; the court noted that the defendants had `not
claimed that their contract with the sanitation company limited what the
company could do with the garbage once the company took possession of it.’ State
v. Howard/Dawson, supra. Under those
circumstances, they `retained no more right to control the disposition of the
garbage once they turned it over to the sanitation company than they would had
they abandoned it.’ State v. Howard/Dawson, supra.
State v. Carle, supra.
The court therefore found that like “the defendants in
Howard/Dawson”, Carle
lost the ability to control the
dissemination of the digital copy of the message stored on Duane's phone. The
recipient could show that copy to anyone in his presence, or he could
instantaneously forward it along to anyone with a cell phone. . . . Moreover,
[Carle] had no ability to control whether the recipient would safeguard his
cell phone -- a device the recipient could take (and leave) anywhere -- so
others could not see the messages displayed on it.
At bottom, [Carle’s] assertion that she
`implicitly entrusted’ Duane with her text message amounts to an argument that
she did not expect anyone other than Duane to see the text message -- or, at
the least, did not expect law enforcement to see the message. But a person's
“subjective expectation of privacy does not necessarily determine whether a
privacy interest has been violated.’ State v. Brown, 348 Or. 293, 232 P.3d
962 (Oregon Supreme Court 2010).
State v. Carle, supra.
The court therefore held that when Carle sent a text message
to Duane’s phone, she
may have expected that police would not
see it. But once a copy of the text message arrived on Duane's phone, defendant
lost all ability to control who saw that message. As a result,
under Article I, section 9, [Carle] had no protected privacy interest in the
digital copy of the message police found on that phone. Because no
search occurred for purposes of Article I, section 9, the trial court
correctly denied [Carle’s] motion to suppress under the state constitution.
State v. Carle, supra.
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