The Cell Phone, the Sent Text Messages and the 4th Amendment

A recent opinion from the Wisconsin Court of Appeals whether people retain a 4^th Amendment expectation of privacy in their emails after they are sent.  State v. Tentoni, 2015 WL 5286103 (2015).  After Ryan Tentoni was charged with “one count of first-degree reckless homicide in violation of Wisconsin Statutes § 940.02(2)(a)”, he filed a motion to suppress text messages found on the phone of Wayne Wilson, the person whose death provided the basis for the charge.  State v. Tentoni, supra.

The appellate brief Tentoni filed as part of appealing his conviction outlines how, and why, Wilson died:

At around 8:00 p.m. on December 5, 2012, the Delafield Police Department was called to the scene of a death at 938 Sunset Drive in Delafield, Wisconsin. . . . Upon his arrival, Officer Landon Nyren found Wayne Wilson . . . deceased in a back bedroom with a small plastic object on Wilson's lips. . . . It was later determined that the object was a Fentanyl patch, and that Wilson died from a Fentanyl overdose. . . .

Nyren searched the bedroom for evidence and seized Wilson's smartphone, an HTC EVO-3D. . . . Nyren took the phone to the Delafield Police Department and stored it for a later forensic review. . . . During the late afternoon on the following day, December 6, 2012, Nyren conducted a forensic download of Wilson's phone. . . . He did not get a warrant to do so. . . .

During his search of Wilson's smartphone, Officer Nyren observed text messages exchanged between Wilson and Ryan Tentoni. . . . Nyren believed certain messages implicated Tentoni in a drug transaction with Wilson. . . . Relying on this information, Officer Nyren sought and obtained a warrant for Tentoni's phone records from his service provider, Verizon. . . .

The Verizon records contained the same text messages, but also contained hundreds of texts between Wilson and Tentoni discussing mundane aspects of their friendship, including hanging out to watch football. . . .

A criminal complaint was issued on March 22, 2013, charging Tentoni with one count of first-degree reckless homicide in violation of Wisconsin Statutes § 940.02 (2)(a), alleging that Tentoni delivered Fentanyl to Wilson, that Wilson used the Fentanyl, and that Wilson died as a result of his use of the Fentanyl.

Defendant-Appellant’s Brief, State v. Tentoni *1, 2015 WL 586756 (Wisconsin Court of Appeals 2015).

Tentoni’s appellate brief included some of the text messages, including the follow:

Wilson	12:17 p.m.	“We getting today?!”
Tentoni		“Hopefully patches tonight”
Tentoni	5:03 p.m.	“Patches tonight...You in?”
Wilson		“Yeah, I'm in.”
Wilson	10:37 p.m.	“These are like duds to me dude. Don't feel a thing. Let's gets [sic] 30's or maybe I'll get another tomorrow cuz I need more than 1 probly.”
Tentoni	10:43 p.m.	“Suck on them!”
Wilson		“That's a waste. I can't have it in my mouth for 3 days.”
Tentoni		“It won't be, you are removing the medicine quicker than it is on ur skin. Usually only last 24 hours.”
Tentoni		“I have 2 patches on and I have no craving for pills. It takes some getting used to.”
Wilson	10:57 p.m.	“How should I fold it?”
Tentoni		“Sticky part outside and again lengthwise.”

Defendant-Appellant’s Brief, State v. Tentoni, supra, at *1.

At the preliminary hearing on the charge against Tentoni, which is used to determine if there is enough evidence to require holding a trial on the charge,

Delafield police officer Landon Nyren testified that on December 5, 2012, he responded to a call about a death and found the body of Wayne Wilson. Wilson had a small plastic object in his mouth, which turned out to be a fentanyl patch. The Waukesha County Medical Examiner testified that fentanyl was a substantial factor in Wilson's death and was the immediate cause of his death. On the autopsy report, the examiner listed acute fentanyl intoxication as the cause of death.

Nyren testified that, while at Wilson's residence, he found Wilson's phone and retrieved text messages from it, including texts sent and received the day before Wilson's death. There were messages between Wilson and Tentoni discussing Tentoni obtaining fentanyl patches for Wilson. After Wilson sent Tentoni a message indicating the some patches `are like duds to me’ and that he did not `feel a thing,’ there was a text from Tentoni to Wilson suggesting Wilson suck on a patch. A subsequent message from Tentoni to Wilson described how to fold the patch, and Nyren testified that the folding method described in the text was consistent with the position of the patch on Wilson's body when he was found.

State v. Tentoni, supra. You can, if you are interested, read a little more about the case in the news story you can find here.

The initial part of the Court of Appeals’ opinion also explains that

relying on the information contained in the text messages on Wilson's phone from Tentoni, Nyren obtained a warrant for Tentoni's phone records relating to the number he used to text Wilson, including 350 text messages between Tentoni and Wilson in the month of November and into the first week of December and around four thousand text messages in all.

Tentoni moved to suppress the text messages found on Wilson's phone and those obtained with the warrant. The circuit court denied the motion, finding that Tentoni had not made a showing of a reasonable expectation of privacy in information that he sent to Wilson. Tentoni pleaded guilty to an amended charge of second-degree reckless homicide, was convicted, and now appeals.

State v. Tentoni, supra.

On appeal, Tentoni claimed the trial judge erred in denying his motion to suppress the text messages because, according to Tentoni, he had a 4^th Amendment expectation of privacy in the messages.  State v. Tentoni, supra.  As Wikipedia explains, the U.S. Supreme Court has interpreted the 4^th Amendment as protecting spaces, items, phone calls and other activities and items IF the person who seeks to invoke the protections of the 4^th Amendment can show that he or she “reasonably believed” the thing(s) and/or activity was “private.”  This standard comes from the Court’s decision in Katz v. U.S., 389 U.S. 347 (1967).  As Wikipedia explains, for something to be private under Katz, the defendant has to subjectively believe that the “thing” at issue is “private” and society has to accept that belief as objectively reasonable.  Katz v. U.S., supra.

In his appellate brief, Tentoni (or, more accurately, Tentoni’s lawyer), argued that

Tentoni's cell phone records . . . contained approximately 4,000 text messages from the month of November 2012 into the first week of December 2012. . . . Approximately 350 of those messages were between Tentoni and Wilson. . . .

The text messages detailed in the complaint are highly incriminating in that they discuss the delivery and use of an unprescribed controlled substance. . . . In addition, other text messages between Tentoni and Wilson relate to them obtaining other prescription opiate pills - identifying them by dosage and price. . . . There is also a text exchange between the two in which Wilson asks Tentoni if he can find some Adderall, another controlled substance, for Wilson to give to his girlfriend Amanda as a present. . . .

Given the volume of text messages Tentoni exchanged . . . it is apparent that text messaging was Tentoni's primary means of communication with others. The texts were private, one-to-one communications over personally-owned cell phones; they were not group texts sent to more than one person. There is no indication that Tentoni intended or expected the texts to be broadcast to the world or shared with anyone other than Wilson.  Moreover, the highly incriminating nature of the text messages strongly favors the conclusion that Tentoni (and Wilson for that matter) expected that the messages would be and remain private. . . .

In sum, the fact Tentoni used text messaging as a primary means of communication, that the text messages were sent only between Tentoni and Wilson and contained information one would normally attempt to keep private . . . bestow privacy upon the contents of electronic communications including text messages, it is clear that Tentoni had a subjective expectation of privacy in his text message conversation with Wilson.

Defendant-Appellant’s Brief, supra, at *6 - *8.

His defense lawyer then went on to argue that Tentoni’s subjective belief that the text messages was also “objectively reasonable”, as required by the Katz decision. Id.

[A] . . . survey by Pew in 2012 showed that 80% of all cell phone owners used their cell phones to send and receive text messages, with 97% of those in the 18-29 year age group and 92% of those in the 30-49 year age group doing so. Pew Research Center, Cell Phone Activities 2012. (Nov. 25, 2012) As of January 2014, 90% of American adults had a cell phone, 58% had a smart phone, and 81% of American adults used these phones to send and receive text messages.

Courts . . . are taking note. In 2010, The United States Supreme Court was faced with an opportunity to address privacy rights in text messages. Ultimately, the Court assumed, without deciding, that an individual had an expectation of privacy in text messages sent from an employer-owned pager, deciding the case instead on narrower grounds. City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010). In its decision, . . . the Court recognized the ubiquity of cell phones and text messaging as a means of communication, suggesting that text messages are entitled to an expectation of privacy: `Cell 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. That might strengthen the case for an expectation of privacy.’  Id. . . .

[B]ecause texts are entitled to at least the same degree of protection as phone calls, the warrantless search of the text-message conversation on Wilson's phone is akin to the warrantless interception of a phone call between the two. . . .

Katz made clear that the 4th Amendment `protects people, not places,’ finding that he had a reasonable expectation of privacy in his phone conversation . . . not the place from which he made it - the phone booth. Katz v. United States, supra. . . .

In this way, Katz compels the conclusion that Tentoni had a reasonable expectation of privacy in the contents of his text message conversation. The fact police intercepted that conversation from the property of a third party is of no importance under Katz. . . .  If this Court adopts the lower court's view of privacy expectations, then all text messages sent by anyone anywhere are subject to government seizure the moment the `send’ button is pressed. The 4th Amendment demands more than that.

Defendant-Appellant’s Brief, supra, at *10 - *13.

The Court of Appeals did not buy Tentoni’s argument.  It began by explaining that

4th Amendment rights are personal and may not be asserted vicariously. State v. Bruski, 2007 WI 25, 299 Wis.2d 177, 727 N.W.2d 503 (Wisconsin Supreme Court 2007). . . . In order to have standing to challenge a search on 4th Amendment grounds, a defendant must have `a legitimate expectation of privacy’ in the area or items subjected to a search. See State v. Trecroci, 2001 WI App 126, 246 Wis.2d 261, 630 N.W.2d 555 (Wisconsin Court of Appeals 2001). The defendant bears the burden of showing, by a preponderance of the evidence, that he or she had a reasonable expectation of privacy. . . . The defendant must show two things: (1) that he or she had an actual, subjective expectation of privacy in the area searched and item seized and (2) that society is willing to recognize the defendant's expectation of privacy as reasonable. . . . With regard to the second, objective, prong, the Trecroci court set forth six factors relevant to the determination of whether a person has a recognizable, reasonable expectation of privacy:

1. Whether the person had a property interest in the premises;

2. Whether the person was legitimately on the premises;

3. Whether the person had complete dominion and control and the right to exclude others;

4. Whether the person took precautions customarily taken by those seeking privacy;

5. Whether the person put the property to some private use; and

6. Whether the claim of privacy is consistent with historical notions of privacy. . . .

These factors are not controlling, and the list is not exclusive. State v. Guard, 2012 WI App 8, 338 Wis.2d 385, 808 N.W.2d 718 (Wisconsin Supreme Court 2011). Whether an individual has a reasonable expectation of privacy is determined by examining the totality of the circumstances. State v. Guard, supra.

State v. Tentoni, supra.

The Court of Appeals then found that, after

[a]ddressing the factors applicable to this case, we conclude that under the totality of circumstances Tentoni did not have an objectively reasonable expectation of privacy in text messages contained in Wilson's phone. First, Tentoni had no property interest in Wilson's phone. Second, Tentoni had no control over Wilson's phone or any right to exclude others from text messages he had sent to Wilson and which were stored in Wilson's phone. Tentoni had no control over what Wilson did with Tentoni's text messages. Third, Tentoni did not claim he took any steps to enhance the privacy of his text messages to Wilson or that he ever told Wilson to keep those messages private. See State v. Duchow, 2008 WI 57, 310 Wis.2d 1, 749 N.W.2d 913 (no expectation of privacy in oral statement when made in public place because the speaker assumed the risk of disclosure to others). . . .

Looking to other jurisdictions, it is widely accepted that the sender of a letter has no privacy interest in the contents of that letter once it reaches the recipient. See United States v. Dunning, 312 F.3d 528 (U.S. Court of Appeals for the 1st Circuit 2002). . . . The same analysis has been applied to e-mails and texts. See Guest v. Leis, 255 F.3d 325 (U.S. Court of Appeals for the 6th Circuit 2001) (noting that a computer user `would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose “expectation of privacy ordinarily terminates upon delivery” of the letter’). . . .; State v. Patino, 93 A.3d 40 (Rhode Island SupremeCourt 2014) (`Because the recipient now shares full control of whether to share or disseminate the sender's message, the sender, to be sure, no longer enjoys a reasonable expectation of privacy in the digital copy of the message contained on the recipient's device’). . . ; see also . . . State v. Carle, 337 P.3d 904 (Oregon Court of Appeals 2014) (defendant did not have reasonable expectation of privacy in text messages sent to someone else's cell phone).

State v. Tentoni, supra.

It went on to note that the Rhode Island Supreme Court’s decision in State v. Patino

is on all fours with our case, setting forth a comprehensive and persuasive expectation of privacy analysis consistent with that applied in Wisconsin cases. Patino had sent text messages to his girlfriend, some of which were inculpatory regarding the death of her son. . . . The court noted that the most important factor in determining whether a person has a reasonable expectation of privacy in text messages is from whose phone the messages are accessed. `Underlying this consideration is the element of control; that is to say, when the recipient receives the message, the sender relinquishes control over what becomes of that message on the recipient's phone.’ State v. Patino, supra.

Because the text messages were found on the girlfriend's phone, and she had full control over whether to share or disseminate the sender's text messages, Patino `did not have an objectively reasonable expectation of privacy in any text messages contained in [the girlfriend's] phone, whether sent by defendant, sent to defendant, or otherwise.’ State v. Patino, supra.

State v. Tentoni, supra.

The Wisconsin Court of Appeals then found that, in this case, Tentoni

neither exerted nor maintained any control over Wilson's phone or the copies of text messages that he had sent to Wilson and were stored in Wilson's phone. Tentoni presented no evidence that he could access the copies of the texts he sent to Wilson or control the content of Wilson's phone in any way. Once Tentoni sent the messages to Wilson and Wilson received them, Tentoni had no control over whether Wilson saved them, deleted them, forwarded them to others or shared their content in any way. This lack of control over the message once it reaches the recipient is analogous to the lack of control a sender has over a piece of mail or e-mail once it reaches the recipient, where it may be saved, destroyed or deleted, shared, or disclosed to others.

This lack of control over what is done with the text message and lack of any right to exclude others from reading it are key in the determination that Tentoni did not have an objectively reasonable expectation of privacy in the text messages stored in Wilson's phone.

Tentoni had no reasonable expectation of privacy in the text messages stored in Wilson's cell phone. We uphold the circuit court's decision on the motion to suppress and affirm the conviction.

State v. Tentoni, supra.