Submitted by Darren Smith, Weekend Contributor
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.
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.
Roden 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.
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.
Text 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.
By Darren Smith
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