State v. Bowman

• Court: Washington Supreme Court
• Decided: November 10, 2021
• Docket: 99062-0
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 99062-0 Petitioner,

v. EN BANC

REECE WILLIAM BOWMAN,

Respondent. Filed: November 10, 2021

STEPHENS, J.—Nearly 50 years since their introduction, cell phones are

widely recognized as an essential way for individuals to stay connected to one

another. See, e.g., Riley v. California, 573 U.S. 373, 385, 134 S. Ct. 2473, 189 L.

Ed. 2d 430 (2014) (“[M]odern cell phones . . . are now such a pervasive and insistent

part of daily life that the proverbial visitor from Mars might conclude they were an

important feature of human anatomy.”). As cell phones made text messaging a

ubiquitous form of communication, we recognized that text message conversations

constitute “a private affair protected by the state constitution from warrantless

intrusion.” State v. Hinton, 179 Wn.2d 862, 865, 319 P.3d 9 (2014). This court, in

Hinton, held that an individual whose text messages are unlawfully searched on an

associate’s cell phone could challenge that search in a subsequent prosecution— For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

rejecting the view of some of our sister states that any privacy interest in a text

message is lost once the message is sent. 1

In this case, we are asked to extend Hinton to prohibit law enforcement from

using information obtained from the lawful, consensual search of a third party’s cell

phone to set up a separate text message exchange on a different cell phone between

Reece Bowman and an undercover agent posing as Bowman’s associate.

Specifically, Bowman argues that both the search and the ruse violated his rights

under article I, section 7 of the Washington State Constitution, as well as the Fourth

Amendment to the United States Constitution, by intruding on a private affair

without authority of law. We reject these arguments.

Consistent with long-standing precedent, we hold that a cell phone owner’s

voluntary consent to search text messages on their phone provides law enforcement

with the authority of law necessary to justify intruding on an otherwise private affair.

We also hold that a subsequent police ruse using lawfully obtained information does

not constitute a privacy invasion or trespass in violation of either our state

constitution or the United States Constitution. We reverse the Court of Appeals and

1 See, e.g., Fetsch v. City of Roseburg, No. 6:11-cv-6343-TC, 2012 WL 6742665 (D. Or. Dec. 31, 2012) (court order) (finding no reasonable expectation of privacy in sent text messages). 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

reinstate Bowman’s conviction, directing the trial court to modify his sentence as

addressed below.

RELEVANT FACTS AND PROCEDURAL HISTORY

Agents from the Department of Homeland Security identified Reece Bowman

as an alleged drug dealer after arresting and interviewing one of Bowman’s

associates, Mike Schabell, in an unrelated police operation. Police arrested Schabell

again in February 2017, and Schabell consented to Agent Marco Dkane searching

his cell phone. During the search, Dkane saw a text message string between Schabell

and Bowman that suggested Bowman sold Schabell methamphetamine earlier that

day. Using the cell phone number shown for Bowman on Schabell’s phone, Dkane

texted Bowman from his own phone, posing as Schabell looking to buy more drugs:

[Dkane:] Hey Reese, it’s [M]ike. I got a burner [phone] [be]cause my old school phone went to sh**.

[Dkane:] You avail[able]?

[Dkane:] ?

[Bowman:] Yes[.]

[Dkane:] Got cash can I re-up?

[Dkane:] I could meet you back in Ballard?

[Dkane:] ? Lemme know please[.]

[Bowman:] Yeah what Mike is this[?]

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

[Dkane:] Schabell. Dude from today.

[Dkane:] Serious?

[Dkane:] I just wanna know if I can get some. Lemme know please. ....

[Bowman:] Mike come on then. Didn[’]t realize who this was[.]

[Bowman:] [“thumbs up” emoji]

[Bowman:] Call me.

[Dkane:] I’m with my old lady. Can you meet or no? ....

....

[Dkane:] Where do you want me to come to?

[Bowman:] 7-11 same one[.]

[Dkane:] Ok. I can be there by 10[pm].

[Dkane:] Can I get [$]500 of clear? 2

[Bowman:] Sure[.]

Clerk’s Papers (CP) at 45-49; 2 Verbatim Report of Proceedings (VRP) (May 3,

2018) at 273-74. When Bowman arrived at the designated meeting place, Dkane

2 “Clear” is another name for methamphetamine. 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

confirmed Bowman’s identity and police arrested him. They found 3.5 grams of

methamphetamine on Bowman’s person and another 55.2 grams of

methamphetamine, digital scales, and $610 in cash in his car.

The State charged Bowman with possession of methamphetamine with intent

to deliver in violation of the Uniform Controlled Substances Act, RCW

69.50.401(1), (2)(c). Before trial, Bowman moved to suppress all evidence against

him and to dismiss the pending charges, arguing police obtained the evidence in

violation of his privacy rights under article I, section 7 of the Washington State

Constitution and the Fourth Amendment to the United States Constitution. Relying

on our holding in Hinton, Bowman argued that police needed a warrant or exigent

circumstances to access the text messages Bowman sent to Schabell’s phone and to

impersonate Schabell in the later ruse. The trial court denied the motion,

distinguishing Hinton because “here, the police used his own phone and his own

phone number to contact Mr. Bowman who actually questioned the caller.” 1 VRP

(May 2, 2018) at 98. The court determined the ruse did not violate Bowman’s

privacy rights because “police are allowed to use a tactic or ruse to contact a

defendant as part of their police investigation.” Id. at 99. A jury found Bowman

guilty as charged.

Bowman appealed, and the Court of Appeals reversed his conviction in a

published opinion, holding law enforcement violated Bowman’s right to privacy 5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

under article I, section 7 of the Washington State Constitution. State v. Bowman, 14

Wn. App. 2d 562, 564, 472 P.3d 332 (2020). The court determined Hinton gave

Bowman a privacy interest in his text message conversations with known contacts

and that this right prevented Dkane from engaging him in communications posing

as Schabell because Bowman “reasonably believed he was texting with a known

contact.” Id. at 569.

The State petitioned this court for discretionary review. Bowman

conditionally cross petitioned for review of three separate issues that the Court of

Appeals did not address: (1) whether the text messages sent by Dkane to Bowman’s

phone constitute a trespass, (2) whether the trial court improperly imposed a

supervision fee for community custody, and (3) whether the judgment and sentence

erroneously allows interest to accrue on legal financial obligations (LFOs). We

granted the petition for review as well as the three issues raised in Bowman’s cross

petition. State v. Bowman, 196 Wn.2d 1031 (2021). We accepted an amici brief

from the Washington Association of Criminal Defense Lawyers, the American Civil

Liberties Union of Washington, the Washington Defenders Association, and the

King County Department of Public Defense.

ANALYSIS

The trial court correctly denied Bowman’s motion to suppress evidence

obtained from the police ruse because there was no unlawful search of Schabell’s 6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

cell phone. Neither the search nor the ruse violated Bowman’s privacy rights under

the state and federal constitutions. We reverse the Court of Appeals and remand to

the trial court to reinstate Bowman’s conviction and modify his sentence, as

described below.

Under article I, section 7 of our state constitution, “[n]o person shall be

disturbed in his private affairs, or his home invaded, without authority of law.” The

United States Constitution provides, “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated.” U.S. CONST. amend. IV. This right extends to an individual’s

reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 360-61, 88

S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). Our state’s private

affairs analysis “is broader than the Fourth Amendment’s reasonable expectation of

privacy.” Hinton, 179 Wn.2d at 868 (citing State v. Young, 123 Wn.2d 173, 181,

867 P.2d 593 (1994)).

The law enforcement conduct in this case did not violate either article I,

section 7 of our constitution or the Fourth Amendment to the United States

Constitution. While Bowman retained a privacy interest in the text messages he sent

to Schabell, Dkane acted with authority of law in viewing the text messages based

on Schabell’s consent to search that phone. The ruse that followed simply

capitalized on validly obtained information and did not intrude on Bowman’s private 7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

affairs. Nor was the ruse a trespass under either the United States Constitution or

our state constitution. The text messages sent by Dkane did not physically invade

Bowman’s cell phone or otherwise manipulate it, and Bowman suffered no trespass

but instead willingly disclosed incriminating information.

I. Law Enforcement Did Not Violate Bowman’s Rights under Article I, Section 7 Because No Illegal Search Occurred and the Ruse Did Not Implicate a Private Affair

In accepting Bowman’s argument based on Hinton, the Court of Appeals

improperly expanded the holding in that case beyond the context of unlawfully

seized text messages on the cell phone of a known contact. See Bowman, 14 Wn.

App. 2d at 569 (noting “Bowman reasonably believed he was texting with a known

contact” and “had a reasonable expectation of privacy for th[e] conversation [with

Dkane]”). Such expansive reasoning skips over the relevant article I, section 7

analysis under the facts of both Hinton and this case.

We follow a two-part inquiry to determine when a violation of article I, section

7 of our state constitution has occurred, asking (1) whether the government intruded

on a private affair and, if so, (2) whether the governmental conduct was justified by

authority of law. State v. Miles, 160 Wn.2d 236, 243-44, 156 P.3d 864 (2007). Our

definition of “private affairs” focuses on “those privacy interests which citizens of

this state have held, and should be entitled to hold, safe from governmental trespass

absent a warrant.” State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984). For 8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

example, we recognize that individuals have a constitutionally protected privacy

interest in information on their cellular devices. See State v. Samalia, 186 Wn.2d

262, 269, 375 P.3d 1082 (2016) (noting cell phones “may contain intimate details

about individuals’ lives, which we have previously held are protected under article

I, section 7”). But “if the State has not intruded unreasonably into someone’s private

affairs, no search has occurred and article [I], section 7 has not been violated.” State

v. Goucher, 124 Wn.2d 778, 783-84, 881 P.2d 210 (1994) (citing Young, 123 Wn.2d

at 181).

When a search implicates a private affair, we then consider the “authority of

law” needed to justify the intrusion—generally a valid warrant. Miles, 160 Wn.2d

at 244. But “there are a few ‘jealously and carefully drawn exceptions’ to the

warrant requirement, including consent.” State v. Reichenbach, 153 Wn.2d 126, 131,

101 P.3d 80 (2004) (citations omitted) (quoting State v. Hendrickson, 129 Wn.2d

61, 70-71, 917 P.2d 563 (1996)). It is the State’s burden to prove an exception

applies. State v. Muhammad, 194 Wn.2d 577, 596, 451 P.3d 1060 (2019) (plurality

opinion). The consent exception requires the State show that consent to search is

voluntary, the consenting party has authority to consent, and the search does not

exceed the scope of the consent. Reichenbach, 153 Wn.2d at 131 (citing State v.

Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004); State v. Nedergard, 51 Wn.

App. 304, 308, 753 P.2d 526 (1988)). 9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

In Hinton, we considered whether an individual who sends text messages

retains a privacy interest in their messages on a recipient’s device. There, police

retained an individual’s phone following an arrest. A detective then searched that

phone without a warrant or consent; texted the defendant from the same phone,

posing as the defendant’s associate; and arranged a drug deal. In analyzing the

relevant privacy rights, we noted the open question at issue was whether an

individual retains any privacy interest in a text message once they hit “send.” Other

jurisdictions had expressed differing views on this question under the Fourth

Amendment. See Hinton, 179 Wn.2d at 867-68 (comparing State v. Patino, No. P1-

10-1155A, slip op. (R.I. Super. Ct. Sept. 4, 2012) (finding the sender had a

reasonable expectation of privacy in sent texts), aff’d in part, vacated in part, 93

A.3d 40 (2014), with Fetsch v. City of Roseburg, No. 6:11-cv-6343-TC, 2012 WL

6742665 (D. Or. Dec. 31, 2012) (court order) (finding no reasonable expectation of

privacy)). We resolved the issue in Hinton on state constitutional grounds, holding

the defendant “retained a privacy interest in the text messages he sent, which were

delivered to [an associate]’s phone but never received by [the associate].” Id. at 873.

Notably, the State did not argue there was authority of law for the warrantless search

of Hinton’s associate’s cell phone, instead insisting that “the text message

communications were not ‘private affairs’ under our constitution.” Id. at 869. In

rejecting the State’s argument, we also noted the lack of any authority of law for the 10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

cell phone search based on “the scope and extent of the detective’s intrusive

conduct.” Id. at 875; see also id. at 882 (C. Johnson, J., concurring) (“[T]here is no

evidence that Lee consented to the search of his phone.”).

The dissent in Hinton challenged the defendant’s standing to assert a

constitutional privacy interest in text messages stored on a third party’s device. But

the majority rejected this argument, holding that Hinton had standing to challenge

the search “if the search disturbed a privacy interest he had in his text messages to

[the third party].” Id. at 869 n.2; see also id. at 880 (C. Johnson, J., concurring) (“[I]t

is the determination of a constitutionally protectable interest, or private affair, that

gives rise to the ability to challenge the warrantless search by the government.”).

Drawing on the recognized privacy interest in text messages, the majority and

concurrence recognized the distinction between conduct that permissibly intrudes on

a private affair and conduct that does not. See id. at 874 (“Hinton certainly assumed

the risk that Lee would betray him to police, but Lee did not consent to the officer’s

conduct.”), 881 (C. Johnson, J., concurring) (“The sender of a text message assumes

a limited risk that the recipient may voluntarily expose that message to a third party,

but . . . the sender does not assume the risk that the police will search the phone in a

manner that violates the phone owner’s rights.”).

Here, the Court of Appeals correctly recognized that Hinton established a

“privacy interest in text message conversations with known contacts.” 14 Wn. App. 11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

2d at 567. But, all too quickly, the court inaccurately rephrased this holding as

extending to the reasonable belief that one is texting “with a ‘known contact.’” Id.

at 568 (quoting Hinton, 179 Wn.2d at 876). Relatedly, the Court of Appeals

erroneously analyzed the conduct here as a single, uninterrupted conversation

between Bowman and the person Bowman perceived to be Schabell. In so doing, it

overlooked key distinctions between the facts in Hinton compared to the facts here.

Unlike in Hinton, this case does not involve the illegal search of a cell phone;

Schabell expressly consented to Dkane searching his phone, so there was no

unlawful search. For purposes of our article I, section 7 analysis, it is helpful to

consider the law enforcement conduct at issue in two separate phases: (1) Dkane’s

access to Schabell’s phone, including text messages and contact information, and (2)

the later ruse involving Dkane posing as Schabell using a different cell phone.

As to the search of Schabell’s cell phone, Bowman does retain a privacy

interest in the text messages he sent to a third party’s device. Hinton, 179 Wn.2d at

865. As we observed in Hinton, “one who has a conversation with a known associate

through personal text messaging exposes some information but does not expect

governmental intrusion.” Id. at 875. That said, Schabell’s consent to search his

phone provided Dkane with the necessary authority of law to view the text message

conversation. See Reichenbach, 153 Wn.2d at 131 (recognizing consent as one of

the narrow exceptions to the warrant requirement). A defendant’s expectation for 12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

purposes of the private affairs analysis is separate from whether the intrusion is

justified by authority of law, such as the phone owner’s express consent.

The Court of Appeals rejected the relevancy of the consent search in this case

by focusing on the wrong consent. The court reasoned that Schabell “had no privacy

interest [in the conversation between Dkane and Bowman] and had no authority to

consent to invasion of the privacy interest that under Hinton was held by Bowman.”

14 Wn. App. 2d at 570. This reasoning obscures the procedural backdrop of Hinton,

which concerned the defendant’s standing to challenge the unlawful search of his

messages on an associate’s device. Our holding in Hinton recognized the relevant

“standing analysis basically duplicates the substantive article I, section 7 analysis”—

with both considering whether a private affair has been disturbed. 179 Wn.2d at 869

n.2. The scope of the privacy right established in Hinton was necessarily tied to the

illegal search or “disturbance” of the third party’s phone without a warrant or

consent. But, here, no such illegal search occurred because Schabell consented to

the search of his cell phone. There is no precedent for requiring further “consent”

for Dkane to use the information he obtained from the lawful search of Schabell’s

phone to then engage Bowman in a new text message exchange on a law

enforcement device. To accept the Court of Appeals’s interpretation of consent

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

would unduly expand Hinton and suggest that a defendant can forever control the

information he willingly shares with an associate who might choose to reveal it. 3

With respect to Dkane’s ruse in posing as Schabell to text Bowman from a

different cell phone, we begin by considering the long line of precedent examining

the constitutional limits of privacy rights in the context of police investigations. In

interpreting the United States Constitution, the Supreme Court has never “expressed

the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a

person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v.

United States, 385 U.S. 293, 302, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966). The Hoffa

Court held there was “no interest legitimately protected by the Fourth Amendment”

where infamous labor leader James “Jimmy” Hoffa made incriminating statements

about jury tampering to an associate who was cooperating with law enforcement.

Id.

The Hoffa case aligns with Washington precedent recognizing similar

situations in which law enforcement strategies or ruses do not violate state

constitutional privacy rights. See, e.g., Goucher, 124 Wn.2d at 781, 786-87 (holding

3 The Court of Appeals similarly focused on the wrong “consent” in suggesting Dkane’s conduct exceeded the scope of Schabell’s consent because “the record does not indicate that Schabell consented to being impersonated.” 14 Wn. App. 2d at 570. Neither Bowman nor the Court of Appeals identify any authority for the proposition that an individual who voluntarily discloses information must further consent to police using that information in an investigation. 14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

no article I, section 7 violation occurred where a detective, while executing a search

warrant at a residence, answered a phone call placed by the defendant by stating he

was “handling business,” inducing the defendant to arrange to buy drugs); see also

State v. Athan, 160 Wn.2d 354, 367-68, 158 P.3d 27 (2007) (holding the defendant

lacked a privacy interest in his saliva recovered from an envelope he voluntarily

mailed to detectives posing as a fictitious law firm).

Like the defendants in Goucher and Athan, Bowman voluntarily disclosed

incriminating information to a recipient, albeit under the mistaken belief he was

texting with an associate. As in Athan, “[t]he fact that he was not aware the recipient

was a police detective does not vitiate that consent.” 160 Wn.2d at 371. Relatedly,

the possibility that Schabell might betray Bowman and consent to the search of his

phone that made the ruse possible in the first place is a risk Bowman, like every

individual, must assume. One’s privacy interest does not encompass a right to

prevent their associates from disclosing confidences or cooperating with law

enforcement.

Nothing in Hinton detracts from this analysis. Indeed, there, we distinguished

the factual circumstances in Goucher and Athan—involving defendants who

“voluntarily disclosed information to strangers”— with Hinton who, in contrast, had

“no indication that anyone other than [his known associate] possessed the phone”

and “reasonably believed he was disclosing information to his known contact.” 15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

Hinton, 179 Wn.2d at 876; see also id. at 871 (noting “individuals closely associate

with and identify themselves by their cell phone numbers, such that the possibility

that someone else will possess an individual’s phone is ‘unreflective of

contemporary cell phone usage’” (quoting Patino, slip op. at 70)). The facts here

show Bowman not only had reason to question who was sending him a text message

from an unknown number but, in fact, did so. See CP at 45 (Dkane claims to be

“[M]ike” on a new phone, and Bowman asks, “What Mike is this[?]”).

More critical to the article I, section 7 analysis is the key distinction that

police unlawfully searched Hinton’s associate’s cell phone to discover his identity

and cell contact, while law enforcement in Goucher and Athan capitalized on

lawfully obtained information. See Goucher, 124 Wn.2d at 780 (recognizing

lawfulness of search of residence before the phone conversation leading to

defendant’s arrest); Athan, 160 Wn.2d at 374 (“The analysis of DNA obtained

without forcible compulsion . . . is not a search under the Fourth Amendment.”

(citing State v. Coleman, 122 Ariz. 130, 133, 593 P.2d 684 (Ct. App. 1978)). In

Hinton, the concurrence correctly observed that the relevant constitutional analysis

implicated the “fruit of the poisonous tree” doctrine. 179 Wn.2d at 882 (C. Johnson,

J., concurring) (“[B]ecause the phone was searched without a warrant, an exception,

or consent, any evidence derived from the search . . . is fruit of the poisonous tree.”).

In the present case, there is no poisonous tree, and the Court of Appeals erroneously 16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

focused on the constitutionality of the ruse, rather than the search. Simply stated,

there is no privacy interest in not being fooled; instead, the relevant inquiry is

whether the cell phone search that yielded the information used to set up the ruse

was supported by authority of law.

Hinton was significant in recognizing an individual’s privacy interest in their

text messages on the device of a known contact and their standing to assert a

constitutional violation where law enforcement invades that privacy interest without

authority of law. That decision did not, however, recognize a right under article I,

section 7 to be free from police ruses or undercover investigations. 4

In line with precedent, we hold Dkane did not intrude on Bowman’s private

affairs when he engaged Bowman in a text message exchange by impersonating

Schabell on a separate undercover device—using information lawfully obtained as

a result of Schabell’s prior cooperation with police and consent to search. We turn

next to Bowman’s argument that the text messages sent by Dkane constituted an

unconstitutional trespass under federal and state law.

4 Our analysis here is limited to consideration of the privacy issues raised by Bowman and should not be read as giving law enforcement unfettered discretion to engage in ruses that violate a defendant’s due process rights. See Athan, 160 Wn.2d at 371 (recognizing due process limits on policy ruses); see also State v. Lively, 130 Wn.2d 1, 23, 26, 921 P.2d 1035 (1996) (holding government informant’s attendance at addiction recovery meetings “could best be described as ‘trolling for targets’ for the police undercover operation” and “was so outrageous that it shocks the universal sense of justice”). 17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

II. Law Enforcement Did Not Commit an Unconstitutional Trespass by Sending Text Messages to Bowman’s Cell Phone as Part of a Ruse

Bowman separately argues that Dkane’s conduct in sending him “uninvited

and fraudulent text messages . . . with the purpose of learning information”

constitutes a trespass or trespass to chattels in violation of both the Washington State

Constitution and the United States Constitution. Suppl. Br. of Resp’t at 12. This

argument, which was not addressed by the appellate court below, is unavailing.

For much of the 20th century, the Supreme Court’s “Fourth Amendment

jurisprudence was tied to common-law trespass” and applied only to constitutionally

protected areas such as persons, houses, papers, and effects. Kyllo v. United States,

533 U.S. 27, 31, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (collecting cases). This

conception of the Fourth Amendment shifted following the Court’s decision in Katz,

holding “the Fourth Amendment protects people, not places.” 389 U.S. at 351.

Following Katz, the Supreme Court test for analyzing whether government conduct

qualifies as a “search” or “seizure” turns on an individual’s “reasonable expectation

of privacy,” which is both objective and subjective in nature. Id. at 360-61 (Harlan,

J., concurring). Later Supreme Court cases have reasoned that to the extent the Katz

test expanded the Fourth Amendment’s baseline protections, “it does not subtract

anything from the Amendment’s protections ‘when the Government does engage in

[a] physical intrusion of a constitutionally protected area.’” Florida v. Jardines, 569

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

U.S. 1, 5, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) (alteration in original) (quoting

United States v. Knotts, 460 U.S. 276, 286, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983)

(Brennan, J., concurring in the judgment)).

Bowman argues two Supreme Court decisions involving common law

trespass analysis under the Fourth Amendment are relevant here: United States v.

Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (holding the

government’s installation of a tracking device to the defendant’s vehicle to monitor

the vehicle’s movements constituted a search), and Jardines, 569 U.S. at 11-12

(holding the government’s use of trained police dogs to investigate the porch

outside the defendant’s home constituted a search). But in both of those cases,

“[t]he government physically occupied private property for the purpose of obtaining

information.” Jones, 565 U.S. at 404; see also Jardines, 569 U.S. at 6 (noting the

officers collected “information by physically entering and occupying the area to

engage in conduct not explicitly or implicitly permitted by the homeowner”). The

physical component of common-law trespass analysis led the concurrence in Jones

to criticize the majority’s test for “provid[ing] little guidance” in cases involving

“electronic or other novel modes of surveillance that do not depend upon a physical

invasion.” 565 U.S. at 415 (Sotomayor, J., concurring). But this criticism does not

change the fact that common-law trespass still requires a physical or equivalent

invasion. See id. at 411 (“Situations involving merely the transmission of electronic 19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

signals without trespass would remain subject to Katz analysis.” (emphasis

omitted)).

Bowman counters with a federal case recognizing the trespass theory is not

limited to physical spaces “and includes electronic or digital trespasses.” Suppl. Br.

of Resp’t at 15 (citing United States v. Ackerman, 831 F.3d 1292, 1307-08 (10th

Cir. 2016)). Ackerman is distinguishable from the facts in this case. There, the

defendant’s e-mail “never made it to its intended recipient” due to an automated

filter designed to screen for child pornography and forward the attached images to

the federal government. 831 F.3d at 1294. Here, in contrast, Bowman’s original

text messages to Schabell’s cell phone were delivered and received by the intended

recipient, Schabell. Schabell’s consent to search his phone gave law enforcement

the information they needed to then begin a separate conversation on a new phone

with Bowman—but no interception of the text messages sent by Bowman ever

occurred. 5

5 Bowman separately argues he suffered a trespass to chattel because the text messages sent by Dkane “placed data onto [Bowman’s] phone” and “sapped its power resources.” Suppl. Br. of Resp’t at 17. For support, he cites Jones v. United States, 168 A.3d 703, 716 n.27 (D.C. 2017), where the court suggested the government’s use of a cell-site simulator to coopt the defendant’s phone and “forc[e] it to do something [the defendant] surely never intended it to do” plausibly constituted a trespass to his chattel (i.e., his cell phone). But, here, Bowman’s phone was neither hacked nor subjected to interference by police. Bowman points to one lower federal court decision recognizing a viable trespass to chattel tort claim for a plaintiff who received repeated and unsolicited telemarketer robocalls. See Mohon v. Agentra LLC, 400 F. Supp. 3d 1189, 1238-39, 1245 (D.N.M. 2019). But civil liability for claims of trespass to chattel or intrusion upon seclusion is ill fitted to a criminal 20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

Bowman’s argument goes too far in suggesting that the text messages sent by

Dkane as part of a police ruse constitute a trespass even though the ruse utilized

lawfully obtained information. This case differs from the Supreme Court cases

where police unfairly utilized technology to gather information that could not

otherwise be obtained without a physical intrusion. See, e.g., Kyllo, 533 U.S. at 34

(holding use of sense-enhancing technology to gather information about the interior

of a home constituted a search where “the technology in question is not in general

public use”). Here, Dkane texted Bowman from a cell phone number unknown to

Bowman, utilizing information obtained from a consensual search of Schabell’s

phone and a prior interview with Schabell himself. The messages sent by Dkane

posing as Schabell provided the means to engage in the ruse, but Dkane’s text

messages, by themselves, could not reveal private information about Bowman.

Instead, Bowman had the choice to ignore the text messages or to respond—

and his decision to respond supplied the potentially incriminating information. No

physical trespass occurred. Even if we accept that a trespass may include the mere

transmission of electronic signals, Bowman’s characterization of the text messages

as “unwanted” followed only from his realization that he had been deceived. That

case involving a police ruse. And state law prohibiting electronic impersonation does not apply to impersonations “[p]erformed by a law enforcement agency as part of a lawful criminal investigation.” RCW 4.24.790(4)(d). Accordingly, we reject Bowman’s trespass to chattel claim. 21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

he misunderstood the identity of the person he was texting does not transform the

unsolicited incoming message into an unconstitutional trespass. See Lopez v.

United States, 373 U.S. 427, 465, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963) (Brennan,

J., dissenting) (“The risk of being . . . betrayed by an informer or deceived as to the

identity of one with whom one deals is probably inherent in the conditions of human

society.”). We hold that the law enforcement ruse did not constitute a trespass for

purposes of the Fourth Amendment to the United States Constitution or article I,

section 7 of the Washington State Constitution. 6

Because the result of our decision today is to reinstate Bowman’s conviction,

we turn to his challenge to aspects of the sentence imposed.

6 Bowman correctly observes that we have not previously addressed whether the Fourth Amendment’s trespass analysis under Jones and Jardines applies under article I, section 7 of our state constitution. Article I, section 7 of our constitution “‘requires no less’ than the Fourth Amendment.” State v. Afana, 169 Wn.2d 169, 177, 233 P.3d 879 (2010) (quoting State v. Patton, 167 Wn.2d 379, 394, 219 P.3d 651 (2009)). But Bowman fails to articulate how our article I, section 7 test falls short of the protections offered by the Supreme Court’s trespass analysis. See, e.g., Muhammad, 194 Wn.2d at 586 (recognizing private affairs under our state constitutional test as those privacy interests that are and should be held “‘safe from governmental trespass absent a warrant’” (emphasis added) (quoting Myrick, 102 Wn.2d at 511). To the extent common-law trespass interweaves with our private affairs inquiry under article I, section 7 of the state constitution, no such trespass occurred under the facts of this case. 22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

III. The Discretionary Supervision Fee Should Be Stricken from Bowman’s Judgment and Sentence, but the Trial Court Did Not Erroneously Impose Interest on Other Fees

Bowman raises two procedural challenges to his judgment and sentence. The

first challenge relates to the imposition of a discretionary supervision fee. During

Bowman’s sentencing, the trial court did not order a separate DNA

(deoxyribonucleic acid) fee and waived “any other non-mandatory fees and

interest.” 3 VRP (Sept. 28, 2018) at 433. Despite this, the court ordered Bowman

to pay a supervision fee as a condition of community custody. The Court of Appeals

has correctly recognized that because “supervision fees are waivable by the trial

court, they are discretionary LFOs.” State v. Dillon, 12 Wn. App. 2d 133, 152, 456

P.3d 1199 (citing State v. Lundstrom, 6 Wn. App. 2d 388, 396 n.3, 429 P.3d 1116

(2018)), review denied, 195 Wn.2d 1022 (2020). Similar to this case, the record in

Dillon demonstrated that the trial court intended to impose only mandatory LFOs;

thus, the Court of Appeals determined the discretionary supervision fee was

inadvertently imposed and ordered it be stricken from the judgment and sentence.

Id. In accord with Dillon, we agree that the trial court committed procedural error

by imposing a discretionary fee where it had otherwise agreed to waive such fees.

We order the fee be stricken from the judgment and sentence.

Bowman also argues his judgment and sentence violates state law to the extent

it provides that his nonrestitution LFOs shall bear interest. See RCW 3.50.100(4)(b) 23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

(“As of June 7, 2018, penalties, fines, . . . fees, and costs imposed against a defendant

in a criminal proceeding shall not accrue interest.”). Bowman’s judgment and

sentence states his financial obligations shall bear interest pursuant to RCW

10.82.090, which provides that “[a]s of June 7, 2018, no interest shall accrue on

nonrestitution legal financial obligations.” RCW 10.82.090(1). Bowman was

sentenced in September 2018, after the provisions of relevant state law prohibited

the accrual of interest on particular LFOs. Reading the judgment and sentence in

this context, it becomes clear that Bowman is subject to interest only for restitution,

which was not actually ordered in this case. Therefore, the judgment and sentence

does not improperly allow interest to accrue on Bowman’s other fees.

CONCLUSION

We reverse the Court of Appeals and reinstate Bowman’s conviction. While

our decision in Hinton recognizes that an individual retains a privacy interest in text

messages sent to a known associate’s cell phone, it does not bar police ruses that

capitalize on lawfully obtained information. Here, Schabell consented to the search

of his cell phone, and law enforcement acted with authority of law in viewing

Bowman’s text messages on Schabell’s phone. The ruse that followed, with Agent

Dkane posing as Schabell to arrange another drug transaction with Bowman, did not

violate Bowman’s privacy rights. We also reject Bowman’s argument that the text

messages Dkane sent to Bowman’s phone as part of the ruse constituted an 24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0

unconstitutional trespass. We reverse the Court of Appeals and reinstate Bowman’s

conviction, striking the discretionary supervision fee from Bowman’s judgment and

sentence.

WE CONCUR:

___________________________ ____________________________

____________________________ ____________________________

25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

No. 99062-0

YU, J. (concurring) — Today, the court reaffirms “that text message

conversations constitute ‘a private affair protected by the state constitution from

warrantless intrusion.’” Majority at 1 (quoting State v. Hinton, 179 Wn.2d 862,

865, 319 P.3d 9 (2014)). Hinton was a groundbreaking decision in 2014, and it

remains at the forefront of constitutional digital privacy protections today. As cell

phone use and technology continue to evolve, courts will continue to face similar

but distinguishable cases, raising related but distinct issues. When deciding these

cases, we must proceed carefully, guided by the data-driven, state-specific

approach we took in Hinton.

As discussed further below, I view this as a close case, but I ultimately agree

with the majority that Reece Bowman’s conviction should be reinstated because

Homeland Security Agent Marco Dkane did not violate Bowman’s article I,

section 7 right to privacy. Therefore, I respectfully concur. However, I write

separately to emphasize that we are distinguishing this case from Hinton on a

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

factual basis without disturbing its legal analysis. Hinton remains the seminal

Washington case on issues concerning text message privacy, and the result here

should not be misconstrued as a retreat from our strong commitment to Hinton’s

protections.

A. It is essential that Washington courts adhere to the digital privacy principles set forth in Hinton

Article I, section 7 of the Washington Constitution “is qualitatively different

from the Fourth Amendment [to the United States Constitution] and provides

greater protections” in many ways. Hinton, 179 Wn.2d at 868. Therefore,

“[w]hen presented with arguments under both the state and federal constitutions,

we start with the state constitution.” Id. Our state constitutional analysis requires

“‘an examination of the constitutional text, the historical treatment of the interest

at stake as reflected in relevant case law and statutes, and the current implications

of recognizing or not recognizing an interest.’” State v. Mayfield, 192 Wn.2d 871,

879-80, 434 P.3d 58 (2019) (quoting State v. Chenoweth, 160 Wn.2d 454, 463, 158

P.3d 595 (2007)).

Article I, section 7 protects “private affairs,” meaning “‘those privacy

interests which citizens of this state have held, and should be entitled to hold, safe

from governmental trespass absent a warrant.’” Hinton, 179 Wn.2d at 868

(quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). This is

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

analytically distinct from and “broader than the Fourth Amendment’s reasonable

expectation of privacy inquiry,” which provides protection only “if the government

intrudes on a subjective and reasonable expectation of privacy.” Id. (emphasis

added) (citing Katz v. United States, 389 U.S. 347, 351-52, 88 S. Ct. 507, 19 L. Ed.

2d 576 (1967)). Thus, when considering the scope of private affairs protected by

article I, section 7, “we necessarily reject” deference to doctrines that are

“fashioned from the explicit language of” the Fourth Amendment and, instead,

must engage in an independent state law analysis. Myrick, 102 Wn.2d at 512.

In Hinton, our independent approach to privacy rights proved necessary

because when we first “addressed the privacy interests of a sender when police

access a sender’s text messages on a recipient’s device,” few other courts had done

so. 179 Wn.2d at 867. Moreover, the courts that had addressed the issue had

drawn differing conclusions. Id. (citing State v. Patino, 2012 WL 3886269, No.

P1-10-1155A, slip op. (R.I. Super. Ct. Sept. 4, 2012) (finding sender had

reasonable expectation of privacy), aff’d in part, vacated in part, 93 A.3d 40

(2014); Fetsch v. City of Roseburg, No. 6:11-cv-6343-TC, 2012 WL 6742665 (D.

Or. Dec. 31, 2012) (court order) (finding the opposite)). In the years since,

additional courts have weighed in, applying both the Fourth Amendment and the

privacy provisions of their respective state constitutions. These courts have

“uniformly,” perhaps universally, declined to recognize the digital privacy

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

protections guaranteed by Hinton. Commonwealth v. Delgado-Rivera, 487 Mass.

551, 563-64, 168 N.E.3d 1083 (2021) (Massachusetts Constitution and the Fourth

Amendment); see also State v. Mixton, 250 Ariz. 282, 296-97, 478 P.3d 1227

(2021) (Arizona Constitution), cert. denied, No. 20-8321 (U.S. Oct. 4, 2021);

Patino, 93 A.3d at 57 (Fourth Amendment; reversing superior court opinion cited

by Hinton).

Nevertheless, today we reaffirm Hinton and its promise that “technological

advancements do not extinguish privacy interests that Washington citizens are

entitled to hold.” 179 Wn.2d at 870. Hinton was correct when it was decided, and

it remains correct today. Moreover, in addition to Hinton’s analysis of article I,

section 7’s text, relevant Washington legal history, and empirical data available in

2014, we also have the benefit of more recent data to support and expand on our

jurisprudence where appropriate.

When we decided Hinton, cell phones in general and text messaging in

particular were already “common” and “expected to rise” in use. Id. (citing Aaron

Smith, Americans and Text Messaging, PEW RES. CTR. at 3 (Sept. 19, 2011),

http://www.pewinternet.org/2011/09/19 /americans-and-text-messaging/). Today,

97 percent of people in the United States “own a cellphone of some kind.” 1

1 Demographics of Mobile Device Ownership and Adoption in the United States, PEW RES. CTR. (Apr. 7, 2021), https://www.pewresearch.org/internet/fact-sheet/mobile/ [https://perma.cc/QAB2-D3EY].

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

Moreover, a 2015 survey found that text messaging was both “the most frequently-

used” and “the most widely-used smartphone feature,” surpassing even voice and

video calls. 2 Thus, in terms of sheer volume, “the nature and extent of information

exchanged during a text messaging conversation” may now exceed the “details

shared during personal phone calls.” Cf. Hinton, 179 Wn.2d at 870 (noting that the

two modes of communication “can involve the same intimate details”).

In addition, the subject matter of text messages has become, if anything,

more sensitive, and more in need of strict constitutional protections. We observed

in 2014 that “[t]ext messages can encompass the same intimate subjects as phone

calls, sealed letters, and other traditional forms of communication that have

historically been strongly protected under Washington law.” Id. at 869-70. The

truth of this observation was later confirmed by a survey finding that more than

half of smart phone owners had “used their phone in the last year to look up

information about a health condition” and “to do online banking.” U.S.

Smartphone Use in 2015 at 20. In addition, 40 percent or more had used their

phones to find “information about a place to live,” “to look up information about a

job,” and “to look up government services or information,” thereby potentially

2 Aaron Smith, U.S. Smartphone Use in 2015, PEW RES. CTR. at 33 (Apr. 1, 2015), https://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015/ [https://perma.cc/T7QU- 5YRQ] (U.S. Smartphone Use in 2015); see also Nissen v. Pierce County, 183 Wn.2d 863, 884, 357 P.3d 45 (2015).

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

“expos[ing] a ‘wealth of detail about [their] familial, political, professional,

religious, and sexual associations.’” Id. (emphasis omitted); Hinton, 179 Wn.2d at

869 (quoting United States v. Jones, 565 U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed.

2d 911 (2012) (Sotomayor, J., concurring)).

Thus, Hinton’s protections remain vital, and the contrary decisions of other

jurisdictions cannot cast doubt on our own interpretation of Washington law.

Nevertheless, these decisions indicate that Washington courts must be particularly

cautious in our approach to constitutional digital privacy issues. In order to

maintain our constitutional independence and robust protections, we must guard

against deferring to the reasoning of other jurisdictions, and we must “not strain to

apply analogies where they do not fit.” Hinton, 179 Wn.2d at 873.

This can be exceedingly difficult to do when confronting novel issues and

factual scenarios because “[t]he legal system has always operated, with reasonable

success, by employing analogies.” Joan Catherine Bohl, My iPhone is my Castle:

One Aspect of Protecting Privacy in a Digital Age, 30 J. MARSHALL J. INFO. TECH.

& PRIVACY L. 1, 1 (2013). Yet, when we analyze article I, section 7 claims, we

have the duty to examine “‘the current implications of recognizing or not

recognizing an interest.’” Mayfield, 192 Wn.2d at 879-81 (quoting Chenoweth,

160 Wn.2d at 463). Moreover, because text messaging is “a unique form of

communication” and digital technology is constantly evolving, even recent

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

precedent cannot always capture the full implications of failing to protect digital

privacy rights in any given case. Hinton, 179 Wn.2d at 873. Therefore, as in

Hinton, we must be cautious when attempting to draw analogies from precedent,

and courts should consider admissible empirical data to the extent that it promotes

just results, which reflect “the realities of modern life.” Id.

B. This case is narrowly distinguishable from Hinton

I ultimately agree with the majority that Agent Dkane did not violate

Bowman’s state constitutional right to privacy because, as the trial court ruled,

“Hinton is distinguishable based on the facts.” 1 Verbatim Report of Proceedings

(May 2, 2018) (VRP) at 98.

Agent Dkane did not pose as Mike Schabell by using Schabell’s phone to

respond to a text message conversation initiated by Bowman, as occurred in

Hinton. See 179 Wn.2d at 866. Nor did Agent Dkane pose as Schabell by merely

switching to a different phone to resume an ongoing conversation between

Schabell and Bowman, which I believe would be insufficient to distinguish Hinton.

Instead, Agent Dkane posed as Schabell to start an entirely new conversation. He

did so using “his own phone and his own phone number to contact Mr. Bowman

who actually questioned the caller, ‘Yeah, what Mike is this?’” 1 VRP at 98.

Based on these factual differences, Hinton does not directly control the outcome

here, and based on the arguments presented, I do not believe the court has

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

sufficient basis to hold that Bowman’s right to privacy was violated. However, I

do not believe this is an easy case, and slight variations in the facts or the issues

could lead to an entirely different outcome.

In Hinton, we observed that “Hinton reasonably believed he was disclosing

information to his known contact” rather than a stranger. 179 Wn.2d at 876. We

also recognized that “Hinton certainly assumed the risk that [his contact] would

betray him to the police . . . [b]ut that risk should not be automatically transposed

into an assumed risk of intrusion by the government.” Id. at 874. Thus, we

concluded that Hinton’s article I, section 7 rights were violated because (1) Hinton

reasonably believed he was texting with a known contact and (2) the police had

violated that person’s privacy rights by searching their phone without authority of

law. In this case, the record and arguments presented do not permit us to make the

same determinations. However, the outcome here should not be mistaken for a

rejection of Hinton’s analytical approach.

1. We have insufficient information about Bowman’s reasonable belief that his text messages were received and read by a known contact

The Court of Appeals was correct to consider whether Bowman

“‘reasonably believed’ he was texting with a ‘known contact’” because Hinton

explicitly directs courts to do so. State v. Bowman, 14 Wn. App. 2d 562, 568, 472

P.3d 332 (2020) (quoting Hinton, 179 Wn.2d at 876). Contra majority at 11-12.

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

Moreover, I agree with the Court of Appeals that “Bowman did not converse with

someone he knew to be a stranger.” Bowman, 14 Wn. App. 2d at 568 (emphasis

added). Nevertheless, based on the record and arguments presented, it is difficult

to say whether Bowman could reasonably believe the messages he sent to Agent

Dkane were, in fact, being received and read by Schabell. Such an argument is not

foreclosed by our opinion today; it would merely require more information in order

to succeed.

Although Hinton accurately described and predicted many important

developments in cell phone and text message use, it could not possibly consider

everything that might be relevant, nor did it purport to do so. Therefore, when

considering the potential implications of decisions regarding digital privacy rights,

courts may need to follow Hinton’s example by considering empirical data

regarding relevant subjects that Hinton did not reach.

One such subject is how access to and use of cell phones may vary between

and within populations. Recent research indicates that “the digital lives of

Americans with lower and higher incomes remain markedly different.” 3 Where

relevant, parties and courts should raise and consider such differences in order to

3 Emily A. Vogels, Digital Divide Persists Even as Americans with Lower Incomes Make Gains in Tech Adoption, PEW RES. CTR. (June 22, 2021), https://www.pewresearch.org/ fact-tank/2021/06/22/digital-divide-persists-even-as-americans-with-lower-incomes-make-gains- in-tech-adoption/ [https://perma.cc/TTF9-LGK2].

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

ensure that article I, section 7 equally protects the digital privacy of everyone in

Washington.

For instance, in this case Agent Dkane, posing as Schabell, sent text

messages from a different number on a “burner,” meaning a prepaid cell phone. 4

Clerk’s Papers (CP) at 45. There are many legitimate reasons a person may use a

prepaid cell phone, or otherwise text a known contact from an unknown number,

including loss of access to one’s primary cell phone (or, as Agent Dkane phrased it

when posing as Schabell, “cause my old school phone went to sh*t”). Id. This is

an important consideration, which must be distinguished from Hinton’s

observation that “individuals closely associate with and identify themselves by

their cell phone numbers,” thus minimizing “the possibility that someone else will

4 Although the majority of cell phone users pay for service through a contract, a 2015 survey found that prepaid cell phones are still regularly used for lawful, private communication. Kyley McGeeney, Appending a Prepaid Phone Flag to the Cell Phone Sample, 8 SURVEY PRACTICE 1, 2 (2015) (“In the survey, 12.4 percent of numbers in the total cell sample were flagged as prepaid cell phones.”), http://www.surveypractice.org/article/2837-appending-a- prepaid-phone-flag-to-the-cell-phone-sample [https://perma.cc/6AR8-YRR4]. Moreover, “the respondents with prepaid flagged cell phone numbers” were “significantly less likely to be white,” there were “significantly more Spanish language interviews in the prepaid sample,” and the prepaid sample was generally “lower educated, lower income,” and more likely to “self- identify as lower class.” Id. at 3.

Thus, the use of a prepaid phone certainly cannot be permitted to diminish a person’s digital privacy rights—for instance, it should not be proof that a person should have been suspicious because the police used a prepaid phone when posing as a known contact. Indeed, it is particularly important to safeguard the digital privacy rights of prepaid cell phone users because they are “more likely to only have a cell phone with no landline” and, therefore, no better option for private communications. Id. at 4.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

possess an individual’s phone.” 179 Wn.2d at 871. It was (and still is) accurate to

say that each cell phone number is typically associated with only one individual.

However, that does not mean that each individual is typically associated with only

one cell phone number.

To the contrary, one person may own and regularly use multiple cell phones

with different phone numbers. 5 In addition, access to one’s primary cell phone

may be frequently interrupted “thanks to a combination of financial constraints and

technical limitations,” making it necessary to use temporary, inexpensive

replacements such as prepaid phones. U.S. Smartphone Use in 2015 at 19.

Such interruptions do not affect all cell phone owners equally. Although a

“substantial majority of smartphone owners (80%) describe their phone as ‘worth

the cost,’” nearly “one-in-five (19%) describe it as a ‘financial burden.’” Id. at 29.

In fact, 23 percent of smartphone users have needed “to cancel or shut off their cell

phone service for a period of time because it was too expensive to maintain.” Id. at

14. These interruptions in service were “especially common among lower-income

smartphone owners,” in addition to “African Americans and Latinos.” Id. And

among those who “lack any other type of high-speed access at home, and have

5 See Nissen, 183 Wn.2d at 877-78 (noting the challenges that arise from “using a private cell phone to conduct public business”); A Third of Americans Live in a Household with Three or More Smartphones, PEW RES. CTR. (May 25, 2017), https://www.pewresearch.org/fact- tank/2017/05/25/a-third-of-americans-live-in-a-household-with-three-or-more-smartphones/ [https://perma.cc/9P3T-SLYP].

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

limited options for going online other than their cell phone,” almost half of the

respondents experienced such interruptions. Id. at 17 (emphasis omitted), 19.

The result is that “those Americans who rely most heavily on their

smartphones as a gateway to online services and information are often the ones

whose connections to their devices are most tenuous.” Id. at 13. We must work to

ensure that these hardships do not carry the additional burden of diminishing the

person’s digital privacy rights. Thus, in this case, it would be inappropriate to give

dispositive weight to the fact that when Agent Dkane posed as Schabell, he did it

by texting from a different phone number. Nevertheless, in addition to the prepaid

phone and different phone number, this case is also distinguishable from Hinton in

other ways. Agent Dkane initiated the conversation, not Bowman, and Bowman

indicated he did not initially believe that the person texting him was Schabell.

There is also, of course, the fact that Schabell consented to the search of his

cell phone, a fact not present in Hinton. However, like the other factual

distinctions listed above, Schabell’s consent is not dispositive. Instead, it is

relevant, but not conclusive, as to the second point in Hinton’s analysis: that

although we necessarily assume the risk that our friends will betray us, we do not

automatically assume the risk that the government will betray our friends.

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

2. We do not have sufficient information to determine whether Agent Dkane violated Bowman’s privacy rights

If we were able to conclude that Bowman reasonably believed that his text

messages to Agent Dkane were actually being received and read by Schabell, then

Hinton directs us to take an additional step before holding that Agent Dkane

violated Bowman’s privacy rights. In Hinton, this additional step was satisfied

because by searching Hinton’s friend’s phone without consent, the police violated

the friend’s constitutional right to privacy. 179 Wn.2d at 874. Moreover, “Hinton

had standing” to raise this violation of his friend’s privacy rights because, as we

held firmly, the risk our private information will be disclosed “should not be

automatically transposed into an assumed risk of intrusion by the government.” Id.

at 869 n.2, 874.

Here, it is certainly true that Agent Dkane did not violate Schabell’s privacy

rights by searching his phone without consent. The trial court found, and no one

disputes, that “Schabell gave consent for law enforcement to search his phone.”

CP at 94. However, the fact that authorities did not violate Schabell’s privacy

rights in the same way as in Hinton does not automatically mean that authorities

did not violate Schabell’s privacy rights in some other relevant way. If there were

such a violation, Schabell could raise the issue in his own criminal case, or perhaps

in civil litigation. However, it is likely that Bowman would also have standing to

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

raise the issue here. As in Hinton, although Bowman assumed the risk that

Schabell would betray him to the police, he did not assume the risk that the police

would betray Schabell. Hinton, 179 Wn.2d at 869 n.2, 874.

For this reason, I disagree with the majority’s attempt to cast this as an

ordinary police investigation, akin to the use of a ruse or an informant. See

majority at 14-15 (citing Hoffa v. United States, 385 U.S. 293, 302, 87 S. Ct. 408,

17 L. Ed. 2d 374 (1966); State v. Goucher, 124 Wn.2d 778, 781, 786-87, 881 P.2d

210 (1994); State v. Athan, 160 Wn.2d 354, 367-68, 158 P.3d 27 (2007)). Hinton

pointed out that such analogies are not appropriate where police pose as known

contacts via text message because “[u]nlike a phone call, where a caller hears the

recipient’s voice and has the opportunity to detect deception,” a text message does

not provide such safeguards. 179 Wn.2d at 876. It is true that, as discussed above,

Bowman did have some opportunity to detect deception here, although no single

factor in the analysis is entitled to dispositive weight. Therefore, it could be

argued that the basis on which Hinton rejected the analogy does not apply with the

same force in this case.

However, analogizing to ruses and informants is still inappropriate here for

reasons that were not necessary to discuss in Hinton. In typical police

investigations, the police either assume a fictional identity or enlist a real person to

act as a police informant. See majority at 14-15 (citing Hoffa, 385 U.S. 293;

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

Goucher, 124 Wn.2d 778; Athan, 160 Wn.2d 354). Here, Agent Dkane did

neither, choosing instead to assume the identity of a real person, Schabell. In

appropriate cases, this could be a highly relevant distinction. Unlike fictitious

people, real people have privacy rights protected by article I, section 7. And unlike

informants, if police assume a person’s identity via text message, that person may

never know that it happened.

I do not contend that Bowman “can forever control the information he

willingly shares with an associate who might choose to reveal it.” Id. at 14. And

based on the record and briefing presented, I cannot hold that Agent Dkane

violated Schabell’s privacy rights. However, it appears that Agent Dkane used

lawfully obtained information to assume Schabell’s identity and conduct affairs in

his name without Schabell’s knowledge or consent. If that is the case, then I

strongly question whether such tactics are consistent with article I, section 7.

As the majority points out, “There is no precedent for requiring further

‘consent’ for Dkane to use the information he obtained from the lawful search of

Schabell’s phone to then engage Bowman in a new text message exchange on a

law enforcement device” Id. at 13. However, I am also not aware of any

Washington precedent that permits the government to assume an existing person’s

identity and conduct affairs in their name based solely on the government’s lawful

access to some private information about that person. Where there is no precedent

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

directly on point, as is often true in digital privacy cases, we should not assume

that the lack of precedent corresponds to a lack of protection. Instead, Hinton

directs us to engage in an independent analysis that is state-specific, data-driven,

and cognizant of “the realities of modern life.” 179 Wn.2d at 873.

A government agent assuming a person’s identity and conducting affairs in

their name would almost certainly “disturb[ ]” that person’s “private affairs,” even

if the agent already knew some private information about them. WASH. CONST. art.

I, § 7. Thus, it seems likely that a person’s identity is something “‘which citizens

of this state have held, and should be entitled to hold, safe from governmental

trespass absent a warrant.’” Hinton, 179 Wn.2d at 868 (quoting Myrick, 102

Wn.2d at 511). And disturbing a person’s private affairs without a warrant,

consent, or any other applicable exception to the warrant requirement (that is,

“without authority of law”) is explicitly prohibited by article I, section 7, “‘with no

express limitations.’” Id. (internal quotation marks omitted) (quoting State v.

Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994)).

While it is possible that such authority of law could be obtained with proper

consent or a warrant, I doubt that it is present here. It is clear that Schabell’s

consent to Agent Dkane searching his phone cannot, in itself, provide sufficient

authority of law for Agent Dkane to assume Schabell’s identity because “[a]

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Bowman, No. 99062-0 (Yu, J., concurring)

consensual search may go no further than the limits for which the consent was

given.” State v. Reichenbach, 153 Wn.2d 126, 133, 101 P.2d 80 (2004).

Nevertheless, given the limitations of the facts and issues presented in this

case, we could not hold that Agent Dkane violated Bowman’s article I, section 7

rights. However, this issue, and many other related issues, will likely require

further consideration if such investigatory tactics continue to be used in

With the above observations, I respectfully concur.

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