In Hinton, the recipient of the text message had been arrested earlier in the day on drug charges. An officer heard the incoming message sound from the phone, read the message, and engaged in a conversation with the sender. Here's the dialogue:
[Hinton]: Hey whats up dogg can you call me i need to talk to you.The two then agreed to meet, and Hinton was arrested and charged with attempted possession of heroin. At trial, he argued for suppression, suggesting that he had a legitimate expectation of privacy in the text messages he sent. The appellate court, however, held, "The Fourth Amendment does not protect Hinton's 'misplaced trust that the message actually would reach the intended recipient.' ... [A] text message user would expect that any privacy of the text message would terminate upon delivery to the receiving party and be subject to government trespass."
[Officer]: Can't now. What's up?
[Hinton]: I need to talk to you about business. Please call when you get a chance.
[Officer]: I'm about to drop off my last.
[Hinton]: Please save me a ball. Please? I need it. I'm sick.
Judge Van Deren dissented in Hinton (and in its companion case, State v. Roden, 2012 Wash. App. LEXIS 1503, concerning another text messaging conversation on the same phone by the same officer), arguing that the "continuing search" after simply reading the e-mails required a search warrant, and thus the evidence should have been suppressed. The bulk of Van Deren's dissent relied upon the Supreme Court rulings in Quon and Jones, which he suggests create a reasonable expectation of privacy in text messages.
I agree with Justice Sotomayor and ... would hold under ... the Fourth Amendment that the State violated Roden's privacy rights and that the fruit of the illegal search of Lee's iPhone should have been suppressed. ...
Broadly interpreted, the majority's holding provides that all citizens of this state consent to police intrusion of their cell phone communications and that they have no expectation of privacy in any form of electronic communication under ... [the] federal constitution. That holding undermines every individual's legitimate privacy interests in communications afforded by evolving and existing technology.As you may know depending on how often you read this blog, we talk about Jones a great deal, but my interest in this case is not to see how Sotomayor's opinion might apply, but rather to get back to some of the basics of Fourth Amendment law. The actions taken by the officer in this case, while common, leave open many problems.
One issue is that the phone's owner was in jail for a drug charge. His alleged illegal act had already happened so no text message received after that crime should be searched during the investigation for that crime. Of course, the message may simply appear, but Hinton's original message does not alone suggest any illegal act and is not, therefore, plain view. The search of the phone - and thus the entire scope of what law enforcement could use it for - should have been restricted to finding evidence for the owner's previous crime.
Here, however, the officer worked to create new evidence for new crimes. It's one thing to look at the messages on a phone, but another to author new ones. In Hinton, the officer simply responded to a new message, and in Roden, the companion case, he responded to an old message and created a new conversation. But how far can this go? Could the officer message everyone in the phone's contacts? Could they send e-mails from the phone owner's account as well? Could they use technology that allows text messages to be masked with any phone number in order to collect (or create) evidence? And imagine the scenario where there is a defendant like Hinton, and the officer sends a text message implying the defendant is a drug dealer when, in fact, he is not, severely damaging his reputation. Allowing officers to send messages on behalf of a defendant (or anyone else) recklessly gives them a significant amount of power that is highly unnecessary and irresponsible.