Your Expectation of Privacy in Your Cell Phone is Currently Governed by the Law of the State in Which You are Arrested

Mar 18, 2014   

Last year the Washington State Supreme Court considered two cases addressing the expectation of privacy one has when sending a text message. On February 27, 2014, the Washington State Supreme Court ruled in two parallel 5-4 decisions that text messages are private and that law enforcement agencies must obtain a search warrant prior to reading them. The decisions can be read here and here.

The decisions stem from the arrest of two men in 2009 by Longview police after a third man, Daniel Lee, was arrested for possession of heroin. After his arrest, Police seized Lee’s cell phone and, without consent or a search warrant supported by probable cause, read an incoming text message from Shawn Hilton that read: “Hey whats up dogg can you call me i need to talk to you.” The police detective, pretending to be Lee, replied and arranged a drug deal in a parking lot. When Hilton arrived at the meeting location, police arrested and charged Hilton with attempted possession of heroin.

Police also found old text messages from another man, Jonathan Roden, on Lee’s cell phone. Again, pretending to be Lee, a Longview police detective started a new text message conversation and arranged a drug deal with Roden in a parking lot. When Roden arrived, he was arrested and charged with attempted possession of heroin. Both Hilton and Roden were ultimately convicted.

On appeal, Hilton claimed that the detectives violated his rights under Article I, section 7 of the Washington State Constitution and his Fourth Amendment right against unreasonable searches and seizures. Roden further argued that Washington’s privacy act was violated by his conviction when the police searched the text messages without a warrant. Hilton argued that text messages are the equivalent of letters, which are protected by the Fourth Amendment. In response, the State argued that there is an “inherent risk in a text message” that someone else might read it after the text message is sent. The State continued and exclaimed that privacy ends the moment the letter is delivered””the sender has no control over what happens next. The State further argued that the text messages were in “plain view” of the detective and thus qualified as an exception to Hilton’s Fourth Amendment protections.

The Washington State Supreme Court vacated Hilton’s and Roden’s convictions. Whether individuals have an expectation of privacy in the contents of the text messages under state law was an issue of first impression in Washington. Justice Gonzalez resolved these cases under the Washington State constitution, which provides broader privacy protections than the Fourth Amendment. Specifically, the Washington State Constitution “protects citizens from government intrusion into their private affairs without the authority of law.” Justice Gonzales explained that text messages can enclose the same intimate subjects as phone calls or sealed letters and even though text messages make communication “more vulnerable to invasion, technology advancements do not extinguish privacy interests that Washington citizens are entitled to hold.”

This determination by the Washington State Supreme Court is the latest in a series of rulings that have extended privacy expectations in cell phones and the content stored on them. Courts in Texas, Massachusetts, New Jersey, and Rhode Island, which have been presented with the issue of the right to privacy surrounding technology advancements, have ruled in the same fashion as the Washington State Supreme Court. Moreover, on April 29, 2014, in United States v. Wurie, the Supreme Court of the United States is due to hear arguments about whether police are allowed under the United States Constitution to search a suspect’s cell phone without a warrant while making an arrest or soon thereafter. This is a critical question. Indeed, today’s cell phones have the potential to reveal an unprecedented level of detail about an individual’s “familial, political, professional, religious, and sexual associations” because the cell phone is often carried everywhere, at all times. See United States v. Jones, 132 S. Ct. 945, 955 (2012).

Under current Florida law, during a lawful arrest police are permitted to confiscate and search a suspect’s cell phone. Florida’s Fifth District Court of Appeal held in Florida v. Glasco, 90 So. 3d 905 (Fla. 5th DCA 2012), that a cell phone is the same as a container or piece of property on the suspect, which can be searched incident to a lawful arrest. However, given these recent decisions from other states, Florida judges may reexamine the issue. Like Washington State’s Constitution, the Florida Constitution’s right to privacy provision provides greater protections than the Fourth Amendment. Specifically, Article I, section 23 of the Florida Constitution states in part that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” The Supreme Court of the United States will soon provide courts a binding answer to whether the Fourth Amendment permits the police, without obtaining a warrant or consent, to search a cell phone found on a person who has been lawfully arrested. But states, like Florida, could always provide greater protections under their respective state laws regardless of the Supreme Court’s decision in United States v. Wurie.

The attorneys at Fuerst Ittleman David & Joseph, PL will continue to monitor developments in this and similar cases. Our attorneys have extensive experience in the areas of tax, tax litigation, administrative law, regulatory compliance, and white collar criminal defense.  If you have any questions, an attorney can be reached by emailing us or by calling 305.350.5690.