In State v. Bone, No. 12-KA-34 (La. Ct. App. 2012), the Louisiana Court of Appeal held that where a person is the "exclusive user of a cell phone," they are entitled to a reasonable expectation of privacy in text messages sent and received from the phone. However, the mistake in denying evidence suppression was harmless error, and the conviction was affirmed.
The defendant was a suspect in a murder case, and law enforcement obtained a subpoena duces tecum to receive a printout of text messages he had sent and received from his phone. Several of the messages appeared to show his involvement in the murder.
On appeal, the defendant argued that his motion to suppress the text messages should not have been denied. The state argued "it had reasonable grounds to obtain the requested information." The defendant's motion, however, argued the records were obtained "without a showing of probable cause as required under the Electronic Communications Privacy Act." (That's not the standard, of course.) The state argued that the defendant had no reasonable expectation of privacy because:
(1) defendant is not the subscriber or owner of the cell phone number at issue; (2) the privacy policies issued by Sprint Nextel specifically warn customers that information may for certain reasons be disclosed to authorities; and (3) defendant admits in the messages he sent from his phone that he did not have a subjective expectation of privacy in the messages.The Court of Appeal first found that the "defendant did not have a reasonable expectation of privacy in the call detail record log associated with his phone number." On the other hand, the court held otherwise with regard to the text messages.
The issue before this Court is not whether the state is permitted to obtain the content of text messages sent on a defendant’s cell phone; rather, the question in this case is the standard that the state must meet in order to obtain such information. We find that here, where defendant was the exclusive user of the cell phone and was permitted to use the phone for personal purposes, he had a reasonable expectation of privacy in the text messages sent and received on the cell phone and further find that the collection and review of the content of defendant’s text messages sent and received by that phone constituted a search which required a showing of probable cause.Thus, the court held that the motion to suppress was erroneously denied. The decision was, however, harmless error as the messages were "simply corroborative of other competent evidence introduced at trial." The trial court decision was affirmed.