Washington Supreme Court Rules Citizens Have Right To Privacy In Text Messaging

Submitted by Darren Smith, Weekend Contributor

Text MessagingIn two precedent setting rulings, the Washington Supreme Court expanded the privacy expectation of text messages on both statutory and unlawful search and seizure grounds.

Washington’s Supreme Court Ruled on February 27th the people have a right to privacy in text messages even if the person cannot be certain someone is reading them the court held. In State v. Jonathan Nicholas Roden the defendant asked the court to decide whether Washington’s privacy act protects text messages intercepted by a detective who possessed the intended recipient’s cell phone after a warrantless seizure. In State v. Hinton the court held that a text message conversation was a “Private Affair” protected from warrantless searches as enacted in Article I Section 7 of the Washington Constitution.

Roden Ruling

A police detective spent 5 to 10 minutes browsing through a cell phone officers took from Daniel Lee incident to his arrest for possession of heroin. The detective noticed several text messages from Jonathan Roden, responded to Roden with a new text message, and arranged a drug deal. Roden was consequently arrested. Roden contends that the detective’s conduct violated the privacy act and the state and federal constitutions.

The Washington Supreme Court ruled that Washington’s privacy act was violated because a detective intercepted private communications without Lee’s or Roden’s consent or a warrant and reverse the Court of Appeals’ decision and Roden’s conviction.

The case stems from an incident in which Longview police arrested Lee for possession of heroin and seized his iPhone. The iPhone, which continually received calls and messages at the police station, was handed over to Detective Kevin Sawyer when he started his shift that evening. The police apparently did not place the phone in an evidence or inventory locker or otherwise secure it after Lee’s arrest. The record does not indicate how long officers kept possession of the phone before giving it to Detective Sawyer. Detective Sawyer looked through the iPhone for about 5 or 10 minutes and saw a text message from a contact identified as “Z–Jon.” It read, “I’ve got a hundred and thirty for the one-sixty I owe you from last night.” Verbatim Report of Proceedings (VRP) (Apr. 29, 2010) at 11. Posing as Lee, Sawyer sent Z-Jon a text message reply, asking him if he “needed more.” Id. Z-Jon responded, “Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I’m only payin’ one eighty for it, instead of two Ts for two hundred.” Id. Detective Sawyer recognized that Z-Jon was using drug terminology, and through a series of exchanged messages, Detective Sawyer arranged a meeting with Z-Jon purportedly to sell him heroin. When Roden arrived for the transaction, he was arrested.

Washington Courts LogoRoden was charged with attempted possession of heroin. Roden moved to suppress the evidence obtained from the iPhone, claiming the evidence was obtained in violation of article I, section 7 of the Washington State Constitution, the privacy act, and the Fourth Amendment to the United States Constitution. The trial court denied the suppression motion and found Roden guilty on stipulated facts. On appeal, Roden argued that the detective’s conduct violated the privacy act. The Court of Appeals affirmed. State v. Roden, 169 Wn. App. 59, 279 P.3d 461 (2012), and Roden petitioned this court for review under both the privacy act and the state and federal constitutions. The court accepted review. State v. Roden, 175 Wn.2d 1022, 291 P.3d 253 (2012).

Washington’s 4th Amendment analogue, Article 1 Section 7 of the State constitution is interpreted under State v. O’Neill, 103 Wn.2d 853,878,700 P.2d 711 (1985) to provide a greater degree of protection than the US Constitution. As such it is often referenced in cases regarding search and seizure along with the statutory authority of the State Privacy Act under Chapter 9.73 of the Revised Code of Washington

The act reads in pertinent part:

[I]t shall be unlawful for … the state of Washington, its agencies, and political subdivisions to intercept, or record any:

(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.

Furthermore RCW 9.73.050 declares that evidence obtained in violation of the act is inadmissible for any purpose at trial.

The court ruled four prongs to be considered when analyzing alleged violations of the privacy act. There must have been (1) a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit ( 4) without the consent of all parties to the private. Roden stated the communications in the text message were intended to be private when intercepted by the detective posing as Lee.

The state argued that text messages in general were not private because it could not be determined if the text messages would only be read by the intended recipient. The court had held in several incidences the possibility that an electronic communication might be intercepted by others did not strip the transmitter and recipient of the message of their privacy rights.

Hinton Ruling

In the complimentary case of State of Washington v. Shawn Daniel Hinton the court was asked to declare if a text message was a private affair, protected from warrantless searches under Article 1 Section 7 of the Washington Constitution. Hinton was the person alleged to have sent the text messages received by Jonathan Roden in State v. Roden.

Mail LetterText messages can encompass the same intimate subjects as phone calls, sealed letters, and other traditional forms of communication that have historically been strongly protected under Washington law. Although text message technology rendered Hinton’s communication to Lee more vulnerable to invasion, technological advancements do not extinguish privacy interests that Washington citizens are entitled to hold. The right to privacy under the state constitution is not confined to “a ‘protected places’ analysis,” or “to the subjective privacy expectations of modern citizens who, due to well publicized advances in surveillance technology, are learning to expect diminished privacy in many aspects of their lives.” the court found that the officer’s conduct invaded Hinton’s private affairs and was not justified by any authority of law offered by the State.

Courts have recognized that an individual maintains an expectation of privacy in sealed letters despite subjecting them to vulnerability in transit. But unlike letters, which are generally delivered to the home where they remain protected from intrusion, text messages are delivered to a recipient’s cell phone instantaneously and remain susceptible to exposure because of a cell phone’s mobility. Just as subjecting a letter to potential interception while in transit does not extinguish a sender’s privacy interest in its contents, neither does subjecting a text communication to the possibility of exposure on someone else’s phone. The court found that Hinton retained a privacy interest in the text messages he sent, which were delivered to Lee’s phone but never received by Lee.

The Supreme Court held that the Court of Appeals erred by finding that Hinton lost his privacy interest in the text message communications because he sent them to a device over which he had no control. Given the realities of modern life, the mere fact that an individual shares information with another party and does not control the area from which that information is accessed does not place it outside the realm of article I, section 7’s protection.

These two important rulings hold in important precedent in that Washington citizens in this increasingly communicative society relying on electronic messaging do not relinquish their privacy rights in the light of increasing intrusions by government. New technology does not escape the same right to privacy as did with letters, telephones, and secure file cabinets of the past.

State of Washington v. Jonathan Nicholas Roden No. 87669-0
State of Washington v. Shawn Daniel Hinton No. 87663-1
Washington State Constitution
Washington Privacy Act
Photo Credit: Alton

By Darren Smith
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

19 thoughts on “Washington Supreme Court Rules Citizens Have Right To Privacy In Text Messaging”

  1. The letter & spirit of the Fourth Amendment as written essentially means if a police officer or FBI agent is searching for a rifle, that officer can’t search the medicine cabinet. Today it seems officers can literally fabricate any reason, without penalty for perjury, then exploit that fabrication for a fishing expedition.

    The Fourth Amendment further states that officer has to state under oath (under penalty of perjury) that probable cause exists and “particularly describing the place to be searched, and the persons or things to be seized”.
    In other words “fishing expeditions” were designed to be illegal.

    The U.S. Supreme Court has created a few exceptions like “plain view” searches intended for situations of pure happenstance, where an officer by pure luck (not fabrication) sees an illegal object through a car window, etc.

    Short of amending the Fourth Amendment, at some point the courts seem meaningless and arbitrary if they aren’t enforcing the both letter & spirit of the U.S. Constitution.

  2. Dredd,
    “Now, why doesn’t the military NSA get the obvious.”
    Perhaps because the Elected Officials, who took Oaths of Office to support and defend our 1st, 4th, and 5th Amendment Rights, are still in power acquiescing it, daily to the military, who’s (br)ass they kiss.

  3. “Men rise from one ambition to another: first, they seek to secure themselves against attack, and then they attack others.”
    — Niccolo Machiavelli

  4. Finally, the obvious becomes law. Good for the Washington Supreme Court.

    Now, why doesn’t the military NSA get the obvious.

    What Darren Smith said.

  5. RWL:

    The officers in this incident did not obtain a search warrant. In fact, in the text of the opinion the justices stated that there was certainly time to get one.

    You bring up a practical point here, and this is going to be surprising to many outside the LE world, if an officer can go before a judge and present an affidavit based upon probable cause and other requirements the judge will usually grant it if it is proper. BUT what happens is officers nearly universally don’t want to go through the trouble of getting one. (it is a headache but it is not that big of a deal) So, what they do is usually not go there and don’t search. But if the need to get the evidence is so important to them they will try to craft ways to get it by finding reasons the courts will allow the search, or more uncommonly, will bend the rules or stretch the limit of what can be searched. Guess what happens when that happens, you end up with cases such as this that usually put more restrictions on government searches.

    That in a nutshell is what happens on the streets.

  6. John:

    I know what you are saying about the incident to arrest search of the cell phone contents. I read somewhere recently, sorry but I don’t have it immediately in front of me, that perhaps in April the Supreme Court is going to look at this issue. Some attorney friends out there might know more than I do here.

    Generally speaking the government is required to obtain search warrants for locked containers incident to arrest. (absent narrowly defined exigency or consent) When I worked the road I tended to familiarize myself more with Washington law since it was almost always more restrictive than the federal standards. In our state any almost locked container required a search warrant to open.

    There is an interesting perspective on what is considered combination locks. The courts here have ruled (and maybe it might be similar at the federal level) that the government could not compel a person to provide the combination number to a lock because doing so would violate the 5th amendment prohibition on self incrimination. That is why I believe regardless of whether the SCOTUS rules the government may allow the gov’t to search the smartphone incident to arrest, locking the phone with a password might be enough to secure it.

    But then you would probably get into whether the police can then open the smartphone and tap into the memory module to retrieve the information. I don’t know how this might play out. But our courts have ruled that an encrypted file system is such that again the 5th amendment would allow the accused to refuse to provide a password.

    I know this sounds like a big cat and mouse game, but that is actually what it often is in the law enforcement world and the courts.

    Thank you for your comments

  7. Perhaps America has had its run- our day in the sun. Now, like the Roman Empire, we will recede. Or like the German state in 1933, we will go down the path of tyranny unbounded. The arab guys burned our Reichstag like the perps did it in Berlin in 1933. To say its a slippery slope is a bit easy on the perps in our nation who destroy our Constitution and your rights each second. You can not rely on Congress– there you have old lady Feinstein in charge of a Committee overseeing this. You can rely on the Supreme Court to bow to the tyrants. You have some hope in the President in the next election cycle. Ayn Rand’s son might be the best choice. Maybe we might have been better off had we not thrown the Redcoats out back in the Revolution.

  8. I am not so sure I would hang my hat on encryption or passwords saving the day if the SCOTUS decides to leave the door open.

    For example (I am not a lawyer nor do I have any expertise here but from my current understanding) lets say you are arrested for whatever reason and happen to be driving your car or walking down the street, post that arrest the cops will indeed legally search your car or person and they do not need a warrant to do so.

    Then lets say they find some illegal contraband or information (like a photo) in your locked glove compartment, front pocket, or better yet in the battery compartment of your smart phone. From my understanding you are busted on the contraband or information found post arrest plus whatever you were originally arrested for and the SCOTUS is absolutely cool with that and does not consider a post arrest search warrant needed for busting you on that secondary information or contraband discovered post arrest.

    I think the Q here is how the SCOTUS is going to view the “contents” of your smart phone “locked” or not and from my layman’s understanding I do not think that has been resolved (at the federal level regardless of this Washington State ruling)and the SCOTUS could very well indeed decide your locked or unlocked smart phone and ALL of its contents (physical or digital) are no different from your glove box, pocket of your pants, or battery compartment of your smart phone post arrest and no warrant is necessary to have a look at what’s there and inventory the contents post arrest and no warrant needed.

    So again, from my layman’s perspective I would not be dancing in the streets just yet feeling as though your smart phone’s contents are going to be absolutely protected from post arrest inspection just yet. Because the SCOTUS (regardless of this Washing State Ruling) are going to take a swing and who knows how that will go. See the two briefs in that link I sent in the comment I posted.

    My opinion is that although most people would agree that a smart phone and it’s digital contents (which are incredibly far reaching into everything about a persons life) should be protected from a warrantless search but that precedent is far from set in stone yet and how the SCOTUS comes down on this issue is going to have profound implications.

  9. John:

    Thank you for the link. Yes it is an interesting read of those two very important cases up and coming.

    I certainly hope the supremes look at the smartphone data as being increasingly central to people’s privacy. One has to look that a person having a key in his possession during an arrest does not give the government the authority to search a file cabinet locked with that key, but in today’s world with the portability afforded by the smart phone that is what is being abused in my view. The smartphone contains both the key and the file cabinet.

    The workaround for the citizen I suppose if the SCOTUS rules against privacy would be that every person now has to use a password to lock their smartphones and then receive 5th amendment protection from being required to divulge it. But, it would be a sad case where we have to rely on it.

    Scanning the entirety of a smartphone is more of a fishing trip than looking for evidence of the crime arrested for in my book. I fail to see once the smartphone is in government custody there is no reason the government cannot wait to secure a search warrant based upon probable cause.

  10. >~~~Two cases whose names may well be connected to one of the most important rulings the Supreme Court will make in our lifetime are United States v. Wurie and Riley v. California. On the surface, the issue is whether the police have the authority to conduct a nonconsensual, non-exigent, warrantless search of a cell phone upon arrest.~~~<

    That from a post up at Simple Justice. Where The Curmudgeon himself takes a closer look at the potentially troubled waters ahead via smart phones.


    Worth the read, like this post her by Darren, if you are interested in the smart phone/warrant discussion.

  11. It is so easy for a police officer (especially a detective) to get a warrant for almost anything. I am surprised that the officers didn’t at least attempt to obtain one. Or did they?

  12. The NSA collects texts and calls it metadata…
    … Texts ARE content!

  13. Yes, excellent. Too many people disrespect and violate other’s privacy rights.

  14. Dog help the Courthouse Gang if any truth and justice should see the light of day. No matter what stupid chances criminals take risking their spilling the beans to law enforcement, the great criminal enablers in the Courthouse will get them off and give them back all their illegal loot.

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