In Gulley v. State, 2012 Ark. 368 (Ark. 2012), the Supreme Court of Arkansas held that the defendant's argument that text messages obtained by a prosecutor's subpoena violated the federal Stored Communications Act and Fourth Amendment would not be considered because the objection was not made at trial, and the defendant did not argue on appeal that the prosecutor had abused the subpoena power.
The defendant had been convicted and sentenced for capital murder and attempted capital murder, and three text messages were presented at trial which had been obtained through a prosecutor's subpoena. One included that the victim's child is "going to be left without any parents," and another containing "dat b**** gonna pay, it's just a matter of time." At trial, counsel argued:
DEFENSE COUNSEL: If I send a text message out it is digitally transmitted through the air wave just like a telephone call is. There is no difference. The fact that they maintained it and printed it out is what the difference is but there is a reasonable expectation of privacy. It may have been subject to a warrant but not to a subpoena.
. . .
DEFENSE COUNSEL: You do not expect the telephone company is going to take it upon themselves to give it to a third party based on a subpoena. It has to be probable cause to get it not just carte blanche you issue a subpoena and go get it. That is what happened here. It may otherwise be something that could be used if a Judge says it but not by a Prosecutor just exercising its own subpoena.
PROSECUTOR: I respectfully disagree, Your Honor, with regard to the Prosecutor's subpoena. Like I say, it is just like a grand jury, it's a quasi-magisterial function and it is a power that is conferred upon the office of the Prosecuting Attorney, same as grand jury in the State of Arkansas.The judge denied the motion, finding that there could not be an expectation of privacy because the messages "can be picked up by a scanner with the proper device." Defense counsel also argued the messages should not be admitted on the basis of relevancy, juror confusion, hearsay, and rule 403. The court limited admission to three text messages.
On appeal, the defendant argued that the use of the subpoena to acquire the text messages violated the SCA and the Fourth Amendment. However, because he did not make an SCA-related objection at trial and did not argue on appeal that the prosecutor abused the subpoena power, the court refused to consider the issue.
The defendant also appealed the admission of the messages as evidence, arguing they were hearsay and not properly authenticated. The supreme court disagreed on both issues.