Text Messages Get 4th Amendment in Rhode Island
In a whopping 190 page opinion, a judge in Rhode Island has ruled that the 4th Amendment protects against warrantless seizures of text messages.
The case is State v. Pantino and the full opinion is here. Text messages weren't all the judge tossed, citing a "tsunami of illegal evidence". EFF and law Prof Orrin Kerr participated in the case and the judge especially credits Kerr's analysis: [More...]
For the reasons set forth in this Decision, this Court holds that the Defendant has a reasonable expectation of privacy in his text messages and in the apartment where the subject cell phones were searched and seized so as to grant him standing, under the Fourth Amendment, to challenge the legality of the searches and seizures of those phones and their contents by the police.
Based on the tsunami of illegal evidence collected by the Cranston Police Department, this Court grants Defendant‘s suppression motions and excludes the State‘s core evidence from being used at trial, including the text messages, all cell phones and their contents, all cell phone records, and critical portions of the Defendant‘s videotaped statement and his written statement given to the police.
In addition, this Court finds that the Defendant made a preliminary showing that numerous sworn statements made by police officers in a dozen warrant affidavits were either deliberately false or made in reckless disregard of the truth so as to entitle him to a Franks hearing subject to further argument on additional preliminary issues.
The judge found standing to challenge the seizure of the text messages even though the defendant may not have had standing to challenge the search of the phone itself -- his privacy interest in the text messages stored on the phone was enough.
The opinion has some interesting statistics.
Law enforcement agencies made 1.3 million requests for consumer phone information—including text messages—from the nine largest cellular carriers in 2011. Press Release, Congressman Ed Markey, Markey: Law Enforcement Collecting Information on Millions of Americans from Mobile Phone Carriers (on congressman‘s website) [hereinafter Markey Congressional Inquiry]
- 83% of American adults—4 of 5 people—own a cell phone. Pew Research Center, Americans and text messaging (Sep 19, 2011) [hereinafter Pew Research Center 2011 Report].
- The typical adult sends or receives an average of 41.5 messages per day. Pew Research Center 2011 Report at 2. Nationwide, an average of 4.1 billion text messages are exchanged daily. Br. of Electronic Frontier Foundation et. al. as Amici Curiae in Support of Resp‘ts, City of Ontario, Cal. v. Quon, 130 S. Ct. 2619 (2010), at 7,
- Ninety-five percent of young adults, ages 18-29, use text messaging. Pew Research Center 2011 Report at 3. This emerging group sends or receives an average of 87.7 daily text messages. Id. American teenagers, perhaps more importantly, send an average of 3,146 text messages monthly. Br. of EFF at 5.
And a reason to use T-Mobile over Verizon:
One cellular carrier that figures prominently in this case—Verizon—retains a record of the actual text messages sent and received by its customers, while another cellular carrier involved here —T-Mobile— does not.
The fact that the Defendant and his girlfriend are teenagers seems to have played a part in the court's thinking:
this Court is satisfied that Defendant‘s expectation of privacy in his alleged text messages was also objectively reasonable. Cell phones have replaced telephones. People send and receive billions of text messages to and from their cell phones daily.
Text messaging, especially among young adults, has become an oft-employed substitute for face-to-face conversations, cell phone conversations, or email. These text messages are often raw, unvarnished and immediate, revealing the most intimate of thoughts and emotions to those who are expected to guard them from publication. The text messages may be true or untrue. In addition, most individuals now keep their cell phones in their possession at all times.
Individuals are closely associated with, if not identified by, their cell phone numbers. Accordingly, this Court finds that it is objectively reasonable for people to expect the contents of their electronic text messages to remain private, especially vis-à-vis law enforcement.
...The ―risk‖ that a text message will be viewed by someone other than the intended recipient is simply too remote to eliminate a person‘s objectively reasonable belief that his or her text message will, in fact, be viewed only by the intended recipient.
The judge shoots down the prosecution's Third Party arguments, says text messages are not analogous to writings and letters, and are more analogous to oral communications. He quotes from Justice Brandeis' dissent in Olmstead, which paved the way for Katz.
There is, in essence, no difference between the sealed letter and the private telephone message . . . ―True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed, and the other unsealed, but these are distinctions without a difference.‖ The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails.
Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, . . . general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.
He adopts the argument for text messages:
Similarly here, the warrantless search of a cell phone is an evil ―far greater than that involved in tampering with the mails.‖ Id. at 475. Whenever the cell phone text messages of any person are searched, ―the privacy of the persons at both ends‖ of the text communication ―the sender of the text message as well as the receiver― ―is invaded and all conversations between them upon any subject, and although proper, confidential, and privileged may be [read and, in effect,] overheard. Id. at 475-76. Moreover, the [search of the texts on one person‘s telephone] involves [the search] of the telephone of every other person who he [or she] may [text] or who may [text] him [or her].‖ Id. at 476. ―As a means of espionage, [therefore,] general warrants are but puny instruments of tyranny and oppression when compared with [the warrantless search of cell phones to obtain such text messages]. Id.
The imprecise nature of analogies helps:
Text messages are not letters, email, or even an oral communication alone—they are a technological and functional hybrid. It follows that any consideration of people‘s subjective expectation of privacy in their text messages must reflect this reality. This Court will not strain, therefore, to apply existing law based on imperfect analogies.
To do such would be to willingly commit analytical error. Accordingly, this Court finds that the Katz test for determining whether a person has a reasonable expectation of privacy is the appropriate one to apply. In applying the Katz test, this Court finds further that the Defendant does have a reasonable expectation of privacy in the content of his alleged text messages.
The Court emphasizes that in viewing the contents of people‘s text messages, just as with GPS monitoring, law enforcement is able to obtain ―a wealth of detail about [a person‘s] familial, political, professional, religious, and sexual associations. U.S. v. Jones, 132 S.Ct. at 955 (Sotomayor, J., concurring).
It is hard to imagine information that could be any more private or worthy of protection from unfettered examination by law enforcement. Any other result would be untenable and out of keeping with the general goal of the Fourth Amendment to prevent ―a too permeating police surveillance. U.S. v. Di Re, 332 U.S. 581, 595 (1948). This concern for protecting ―[t]he security of one‘s privacy against arbitrary intrusion by the police,‖ Wolf v. People of the State of Colorado, 338 U.S. 25, 27 (1949), should be all the more salient when it comes to the contents of a person‘s communications because ―[a]wareness that the Government may be watching chills associational and expressive freedoms.‖ Jones, 132 S.Ct. at 956 (Sotomayor, J., concurring)
The Judge quotes an 1887 case (yes, 1887): In re Pacific Railway Comm‘n, 32 F. 241, 250 (C.C.N.D. Cal. 1887)
Of all the rights of the citizen, few are of greater importance or more essential to his [or her] peace and happiness than the right of personal security, and that involves, not merely protection of his [or her] person from assault, but exemption of his [or her] private affairs, books, and papers [and this Court would add the content of his or her text messages] from the inspection and scrutiny of others. Without the enjoyment of this right, all other rights would lose half their value.
The court sums up its findings on text messages:
- that the third-party doctrine is untenable for today‘s technological climate and thus should not be applied absolutely.
- text messages should not be considered solely as the contents of a single individual‘s cell phone for purposes of analyzing an expectation of privacy in those messages under the Fourth Amendment.
- text messages sent and received should be viewed as a single entity due to their interdependent nature and form.
- a person has a reasonable expectation of privacy in the contents of his or her text messages.
Now finished with standing, the Judge turns to the warrantless search of the phone for text messages. He's only on page 90, and I'm out of time, but the crux is:
The Cranston Police Department‘s actions in searching the apartment, seizing phones, and searching the LG cell phone to discover its text message contents constituted an illegal search and seizure under the Fourth Amendment.
After finding numerous false statements by the cops the judge addresses plain view. No dice.
Finally, the Court emphasizes that the plain view doctrine is meant to apply to the seizure of items, the criminality of which must be immediately apparent. This Court cannot find that a cell phone is an object that, in and of itself, has apparent criminality, except perhaps in cases where the officer has probable cause to believe that the cell phone is contraband.
On the nature of the crime and child victim as not constituting an exigent circumstance:
The investigatory instincts and talents of law enforcement are critical to maintaining our civilized society and holding persons accountable for their actions. Yet, the seriousness of Marco Nieves‘ injuries does not otherwise justify an intrusive, non-consensual warrantless search into a cell phone that was clearly not the immediate cause of the injury. ―It is inconsistent with the Fourth Amendment to adopt the position that the seriousness of the offense under investigation itself creates . . . [the] circumstances . . . that under the Fourth Amendment justify a warrantless search.
To sum up:
First, with regard to standing, Defendant has a reasonable expectation of privacy in his alleged text messages so as to give him standing to challenge the police search that led to discovery of those text messages as violative of the Fourth Amendment.
The Court further finds that the third-party doctrine should not apply to diminish the expectation of privacy in the contents of electronic communications. Moreover, people have a reasonable expectation of privacy in the contents of their text messages with no distinction between whether the messages were sent or received by them. This expectation of privacy is also separate and discrete from the device used to send or receive the text messages. Defendant also has standing to challenge the search of the apartment where he was a frequent overnight guest and the seizures of evidence there.
Secondly, Sgt. Kite‘s actions to view the text messages on the LG cell phone did not fall within the exigent circumstances, plain view, or consent exceptions to the warrant requirement, and as such, were objectively unreasonable under the circumstances. In addition, the searches and seizures of the police of all of the cell phones in evidence and their contents were illegal as warrantless or in excess of the warrants obtained. Furthermore, search of the LG cell phone by the police to photograph its text message content was not justified by the scope of the warrant or by the exigent circumstances exception to the warrant requirement. As such, all of these searches and seizures, therefore, were unreasonable in violation of the Fourth Amendment.
Thirdly, almost all the evidence the Cranston Police Department obtained during the course of its investigation into the death of Marco Nieves was ―tainted‖ by the illegal search made by Sgt. Kite or the other illegal searches and seizures of cell phones and their contents.
In all, the court suppressed 19 categories of evidence as a result of the illegal searches.
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