Communications technologies seem to be changing at an ever-faster rate, and the laws against unreasonable searches by police always struggle to keep pace. Recent rulings from several state courts, however, have affirmed Fourth Amendment protections against warrantless searches of text messages stored on mobile telephones and location data obtained from cell phone service providers. While technology may change the means by which people can communicate, the expectation of privacy and the limits on warrantless searches should not change.
Text Message Privacy
Two recent cases from Washington state involved a police search of a cell phone. Police arrested an individual for alleged heroin possession. His iPhone continued to receive incoming calls and text messages at the police station. A detective spent five to ten minutes reading text messages on the phone, and reportedly identified drug terminology in messages from one contact. Posing as the phone’s owner, the detective responded to the person to set up a drug transaction. He arrested the two individuals who showed up at the meeting location. Washington v. Hinton, 319 P.3d 9 (2014); Washington v. Roden, __ P.3d __, No. 87669-0, slip op. (Wash., Feb. 27, 2014).
Both defendants were convicted of attempted possession of heroin after unsuccessfully moving to suppress the evidence for violations of the Fourth Amendment, the state constitution, and state law. The Washington Supreme Court reversed both convictions. In Hinton, it based its ruling on the Fourth Amendment and the state constitution, while basing its decision in Roden on the state’s privacy statute. The court ruled in Hinton that people have a reasonable expectation of privacy when making telephone calls that also extends to text messages. These protections exist, it held, “regardless of technological advancements.” Hinton, 319 P.3d at 17.
Cell Phone Location Data
The Massachusetts Supreme Court considered whether police needed a warrant to obtain historical cell site location information (CSLI) for a specific cell phone from a cellular service provider. CSLI can show the approximate location of a cell phone at a specified time, based on proximity to cellular service towers. Police can use this as evidence of a cell phone user’s location. The court ruled that accessing a specific person’s CSLI is a search under the state constitution that requires a warrant. Massachusetts v. Augustine, 467 Mass. 230 (2014).
During a murder investigation, police sought to determine the defendant’s location at a specific time. They obtained CSLI from his cellular provider with the type of court order required by the Federal Stored Communications Act (SCA), 18 U.S.C. § 2703(d). The state argued that the data constituted business records of the cellular provider and therefore did not impact the defendant’s rights. The court disagreed, finding that CSLI is likely to reveal an individual’s private, and therefore protected, activities. Augustine, 467 Mass. at 253, citing New Jersey v. Earls, 70 A.3d 630 (N.J. 2013). The court also found that an order issued under the SCA, which generally compels production of CSLI, does not meet the stringent probable cause requirements for a search warrant.
If you are facing charges for an alleged criminal offense, a knowledgeable and experienced criminal defense attorney can help you understand your rights and prepare the best possible defense. Michael J. Brown has represented west Texas defendants criminal cases for over twenty years. Contact us today online or at (432) 687-5157 to schedule a confidential consultation to see how we can assist you.
More Blog Posts:
Government Not Obligated to Disclose GPS Tracking Policy Memos, Court Rules, Despite Fourth Amendment Concerns, Texas Criminal Lawyer Blog, May 9, 2014
U.S. Supreme Court Rules that, in Some Circumstances, One Resident May Consent to a Search by Police Even When Another Resident Refuses, Texas Criminal Lawyer Blog, May 1, 2014
“Independent Source” Doctrine Allows State to Use Evidence Originally Discovered through an Unlawful Search, Texas Criminal Lawyer Blog, February 20, 2014
Photo credit: By Michael Johnson (Man on Cellular Tower! Uploaded by Partyzan_XXI) [CC-BY-2.0], via Wikimedia Commons.