Warrantless Text Message Search Threatens to Scuttle Murder Case

Cell phones allow us not only to communicate with one another, but also to take and store pictures, “check in” from a location, balance our checking account, and even update our blogs. When the content of a cell phone may help the police to solve a crime, the legality of the search of both the phone and its content is of crucial importance. However, the law of warrantless searches of cell phones is not yet settled.

A recent 190-page decision from Rhode Island Superior Court Justice Judith Savage in State of Rhode Island v. Patino, C.A. No.: P1-10-1155A, weighs in on the debate. The facts in this case are very sad; here is a quick summary. A 6-year-old died, possibly from abuse. Four cell phones are observed by the police at the scene. The police seized and searched them. One belonged to the mother of the victim, and at least two others belonged to the Defendant. Was the search legal?

Facts of the case

On October 4, 2009, the Cranston Police Department was called by Trisha Oliver, the mother of 6-year old Marco Nieves, who was unresponsive and not breathing. He was taken to the hospital, while Sergeant Michael Kite went to Oliver's apartment. He met there Michael Patino, Oliver’s boyfriend and the father of her infant daughter. Sergeant Kite observed four cell phones in the apartment: a LG Verizon, a Metro PCS Kyocera, a black T-Mobile Sidekick, and an iPhone.

At one point during his visit, it seems that Sergeant Kite picked up the LG Verizon cell phone because it beeped, and he may have viewed a “sent” message addressed to “DaMaster.” The message read as follows:

Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg.

Patino was taken to the police headquarters, and he took the T-Mobile phone with him. Sergeant Kite called headquarters to suggest that this phone should be confiscated upon arrival, which was done. The police obtained a warrant to search the apartment, and seized the LG phone (which apparently belonged to Oliver) and the other two phones (which might have belonged to Patino). Meanwhile, Patino was being interrogated by the police, and it seems that during that interview police officers alluded to the content of text messages on his T-Mobile phone and their evidentiary value. They may even have quoted the text seen by Sergeant Kite on the LG Verizon phone. Patino was eventually arrested, after admitting that he had hit Marco. Marco Nieves died the afternoon of that day. The police eventually obtained a warrant to search the T-Mobile phone.

Patino was indicted by a grand jury in 2010 for the murder of young Marco, and the case was expected to be tried before Justice Savage this fall. Patino filed several motions to suppress the text messages, the cell phones, the cell phone record, and his confession, arguing that this evidence was the product of illegal searches and seizures, in violation of the Fourth and the Fifth Amendment of the Constitution and Article 1, Section 6, of the Rhode Island Constitution, which is similar to the Fourth Amendment.

A suppression hearing concluded on August 15, 2012, and on September 4, 2012, Justice Savage issued a suppression order, holding that Patino had a reasonable expectation of privacy in his text messages that granted him standing to challenge the constitutionality of the searches and seizures of the phones by the Cranston police, and the evidence gathered as a result (including Patino's confession). She further held that the searches and seizures were unconstitutional in the absence of a warrant.

The justice's analysis of the search is interesting, and I will attempt to tease it apart here. I will focus in this post on the search of the LG Verizon cell phone, because this phone apparently did not belong to Patino, raising significant questions about a person's right to challenge a search for his text messages on someone else's phone. (That said, the search of the two phones which apparently belonged to Patino, the Metro PCS and the T-Mobile Sidekick, was also found to be unconstitutional.)

A common but unsettled issue

Police efforts to obtain cell phone data are apparently common. Following an article published last April in the New York Times, reporting that law enforcement agencies routinely track cell phones with little or no court oversight, Representative Ed Markey (D-Mass) sent letters to major mobile carriers asking them about the number of requests they receive each year. The answer was more than 1.3 million requests in 2011, often without the knowledge of the person whose phone records are sought.

A 2012 Rhode Island bill, HB 7110, would have required a search warrant before obtaining information contained in portable electronic devices. It passed the House and the Senate, but was vetoed by Governor Lincoln Chafee  in June 2012 because he thought, as quoted by J.Savage, "that the courts, not the legislature, were better suited to resolve the question of Fourth Amendment privacy rights in electronic communications" (Opinion, p. 48).

The requirement of standing to challenge a search

The Fourth Amendment of the U.S. Constitution bans "unreasonable searches and seizures." Courts decide whether a search is reasonable under the totality of the circumstances. Searches conducted without a warrant are per se unreasonable, but there are exceptions, such as a search required by exigent circumstances or searches of items in plain view. When Sergeant Kite picked up the LG cell phone and viewed its text messages, he engaged in a warrantless search.

However, an individual only has standing to challenge an allegedly unconstitutional search if that person has a reasonable expecation of privacy in the place or material searched. Therefore, the State would have to convince the Court that the search of the LG Verizon cell phone fell under an exception to the Fourth Amendment only if Patino had an expectation of privacy in his text message.

This was a critical issue to the case, because the police used the information contained on the LG Verizon phone as a basis for further searches and while interrogating Patino on the morning of October, 4, 2009. Thus, if the search of the LG phone were unconstitutional, the admissibility of other evidence -- including Patino's confession -- would be in question as well.

Is a cell phone a container?

The search of the LG Verizon cell phone raises interesting questions about whether Patino had an expectation of privacy in the incriminating text message,  because the phone was not his.

In Katz v. United States, the Supreme Court famously held that the Fourth Amendment protects people, not places, and that “[w]hat a person knowingly exposes to the public… is not a subject of Fourth Amendment protection.” The State argued that Patino voluntarily disclosed the text message by sending it to the LG Verizon cell phone. Specifically, the State analogized the cell phone to a container, arguing that because Patino did not own the container (the phone), he had no expectation of privacy in its contents (the data stored on the phone). 

In 1997 in New York v. Belton, the Supreme Court defined a container as “any object capable of holding another object.” Courts have used the container analogy in allowing the warrantless searches of pagers incident to an arrest (for example, U.S. v. Ortiz, 7th Circuit, 1996), and a Kansas court similarly upheld in 2003 a warrantless search of a cell phone, noting specifically that “a cell phone has a limited memory to store numbers.” (Note, however, that whether a search is incident to arrest goes to the validity of a warrantless search, and not to the status of an electronic device as a container; moreover, in this case the LG Verizon cell phone was apparently searched well before Patino was arrested.)

Justice Savage refused to follow these cases, holding instead that a cell phone should be thought of as an “access point” to a vast amount of digital information (p. 59). In doing so, she followed the 2009 decision of State v. Smith, in which the Ohio Supreme Court held that a cell phone is not a closed container, reasoning that “[e]ven the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container."

Therefore, Justice Savage held that the pertinent question was not whether Patino had an expectation of privacy in Oliver's LG Verizon cell phone, but whether he had an expectation of privacy in the content of his own text messages stored in the cell phone (p.59).

Expectation of privacy in electronic communications

The reasonable expectation of privacy test laid out in 1967 by Justice Harlan in his concurring opinion in Katz is still used by the courts to decide whether the Fourth Amendment is applicable to a particular case: the person must have a reasonable expectation of privacy, and that expectation must be one that the society is prepared to recognize as reasonable. In City of Ontario v. Quon (2010), a case about the privacy of messages sent using pagers issued to its employees by a government agency, the Supreme Court stated that courts should consider the rapid changes in technology and what society accepts as proper behavior when deciding whether a search is reasonable. The same year, the Sixth Circuit noted in U.S. v. Warshak that “[t]he Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantee will wither and perish.”

However, the Supreme Court shied away from making Quon the reference case of privacy in electronic communications. The Supreme Court noted that the “judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” It reasoned that, in Katz, it was feasible for the Supreme Court to assess whether Defendant had a reasonable expectation of privacy in the telephone booth he used to make an incriminating phone call. But the expectation of privacy one has when using an electronic communication device may not be so easily assessed by a court, and thus “[p]rudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” (Quon, at 2629).

Justice Savage noted that the Supreme Court had thus “deprived this Court of the very guidance that it seeks today to resolve the novel and important issues presented” (p. 45). However, she argued that the Supreme Court in Quon had implicitly adopted the reasoning in Katz, as “it did not assume, without deciding, that a person has a reasonable expectation of privacy in the electronic device itself… but instead that a person has a privacy interest in the contents of the device…” (p. 61).

This is particularly important, as Savage explained, because holding differently would allow the police to search the cell phone of a third party, for instance a friend who received an incriminating message sent by a defendant. The defendant would have no standing to challenge that search, as he would not have a reasonable expectation of privacy in his friend’s cell phone. The friend would have standing, but most likely would not challenge the search for various reasons such as legal costs (p. 89).

It could also encourage the police to go on “fishing expeditions,” casting a wide net over digital information held by individuals even remotely connected to a criminal investigation (p.62). According to Justice Savage, such a fishing expedition was precisely what the Cranston police officers engaged in; even after almost a month of evidentiary hearings, she noted, the court still did not know whether the message seen by Sergeant Kite on Oliver’s LG Verizon cell phone and allegedly sent by Patino was reflected on the devices that the police attributed to Patino (p. 63). The Court further expressed concern that, as a result of the police department's handling of Patino's phones, they placed Patino in an impossible position with respect to proving his standing to challenge the searches:

It is possible, though it cannot be proven definitively, that their illegal search of the contents of that cell phone revealed the text messages corresponding to those text messages found on the LG cell phone. Notwithstanding that possibility, however, the police have deprived the Defendant of the evidence needed to prove that fact. As a result, the Cranston Police Department may have effectuated a workaround-revealing only evidence of the text messages in which the State claims the Defendant lacks standing-namely, the text messages on the LG cell phone-while depriving the Defendant of the very evidence that the State claims he needs to prove standing-namely, proof that the corresponding text messages are on his cell phone and could have been viewed and, in fact, were viewed by the police at the time of their search. This prospect can turn the law of standing on its head. 

(p. 65).

Justice Savage found that the Supreme Court's ruling in Quon was consistent with finding a reasonable expectation of privacy in the content of electronic messages, despite the Quon court's demurral on that final issue. She noted that the Supreme Court focused in Quon on the privacy policy of the government agency which had issued the electronic devices, which policy stated that the content of the messages could be viewed by the employer. In the absence of such a privacy policy, she reasoned, the employees in Quon might have been successful in their claim that their messages were private.

Ultimately, Savage held that Patino had a reasonable expectation of privacy in the content of his text messages, as it was his usual way to communicate with others, instead of calling them by phone. She wrote an interesting paragraph analogizing text messages to oral communications, noting that “private topics previously reserved for secured oral communications are now confidently exchanged through text messaging” because we carry our cell phones most of the time (p.84). Indeed, she found that the very fact that the police claimed that the content of Patino’s phones may be incriminating also supported a finding that Patino expected his texts to stay private (p. 69).

The third party doctrine and cell phone carriers

In Smith v. Maryland (1979), the Supreme Court enunciated the so-called "third party doctrine," holding that a person has no expectation of privacy in information voluntarily shared with a third party to a particular communication. This case is still good law. Moreover, the content of text messages is routinely exposed to third parties -- namely, cell service providers -- raising the question of whether there can be any expectation of privacy in text messages facilitated by a third party service.

Justice Savage thought that a reasonable expectation of privacy could exist, holding that the third party doctrine was not applicable to the content of the text messages at issue in this case (p.76). She quoted the concurring opinion of Supreme Court Justice Sotomayor in the 2012 case of U.S. v. Jones, where Sotomayor wrote that the third party doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Savage also quoted an essay published online in August 2012 in which Professor Orin Kerr argued that the doctrine should not apply when the third party is merely a conduit for information.

Justice Savage noted that applying the third party doctrine would make the expectation of privacy of cell phone users dependent of their carriers’ data retention policies (p. 77). Data retention practices of the cellular carriers differ greatly; Savage said that she was “stunned to learn… that Verizon… retains a record of the actual text messages sent and received by its customers, while… T-Mobile… does not” (p. 48).

Conclusion

Because Patino had a reasonable expectation of privacy in his text messages, he had standing to challenge the police department's search. As such, the police were required to demonstrate an exception to the Fourth Amendment warrant requirement, such as exigent circumstances, plain view, or consent; Savage decided that none of these exceptions applied, and that the search of the LG Verizon phone was unconstitutional. Accordingly, she held, all the warrants obtained by the police after Sergeant Kite first picked up the LG Verizon cell phone were tainted by this illegal search (p. 151). She thus barred, under the exclusionary rule, the introduction at trial of evidence obtained during the search, or obtained as a direct result of the search.

The decision is likely to be appealed. Stay tuned…

Marie-Andrée Weiss is a solo attorney admitted in New York, and her admission is pending in France. Her practice focuses on intellectual property, privacy, and social media law. She frequently writes on these topics and on European Union law.   

(Image courtesy of Flickr user williamhartz pursuant to Creative Commons CC BY-NC-SA 2.0 license.)

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