State v. Hinton

319 P.3d 9, 179 Wash. 2d 862

• Court: Washington Supreme Court
• Decided: February 27, 2014
• Docket: No. 87663-1
• Status: Published

Opinions

González, J.

¶1 We consider whether a text message conversation was “a private affair [ ]” protected from a warrantless search by article I, section 7 of our state constitution. A police detective read text messages on a cell phone police seized from Daniel Lee, who had been arrested for possession of heroin. Among other things, the detective read an incoming text message from Shawn Hinton, responded to it posing as Lee, and arranged a drug deal. Hinton was consequently arrested and charged with attempted possession of heroin. Hinton contends that the detective’s conduct violated his rights under article I, section 7 and the Fourth Amendment to the United States Constitution.

¶2 We agree that Hinton’s text message conversation was a private affair protected by the state constitution from warrantless intrusion. We reverse both the Court of Appeals’ decision and Hinton’s conviction.

Background

¶3 City of Longview police arrested Lee for possession of heroin and seized his iPhone. The iPhone, which continually received calls and messages at the police station, was handed over to Detective Kevin Sawyer when he started his shift that evening. Detective Sawyer looked through the iPhone for about 5 or 10 minutes and saw a text message from a contact identified as “Z-Jon.” Detective Sawyer recognized that Z-Jon was using drug terminology, and through a series of exchanged messages, Detective Sawyer arranged a meeting with Z-Jon to sell him heroin. When Jonathan Roden arrived for the transaction, he was arrested.¹

¶4 Detective Sawyer booked Roden into jail and heard the iPhone signal receipt of a new text message. Detective Sawyer read the text message from “Z-Shawn Hinton,” which read, “ ‘Hey, what’s up dog? Can you call me? I need to talk to you.’ ” Verbatim Report of Proceedings (Apr. 29, 2010) at 22, 13. Sawyer again posed as Lee, responded to the message, arranged another drug transaction, and arrested Hinton when he arrived at the meeting location.

¶5 Hinton was charged with attempted possession of heroin. He moved to suppress the evidence obtained from the iPhone, arguing that the detective’s conduct violated article I, section 7 of the Washington State Constitution; the Fourth Amendment to the United States Constitution; and the Washington privacy act, ch. 9.73 RCW. The trial court denied the suppression motion and found Hinton guilty on stipulated facts. Hinton appealed and argued the constitutional issues. The Court of Appeals affirmed. State v. Hinton, 169 Wn. App. 28, 280 P.3d 476 (2012). We granted Hinton’s petition for review to decide whether the detective’s conduct violated the state or federal constitutions. State v. Hinton, 175 Wn.2d 1022, 291 P.3d 253 (2012).

Standard of Review

¶6 This Court reviews a trial court’s legal conclusions on a motion to suppress de novo. State v. Schultz, 170 Wn.2d 746, 753, 248 P.3d 484 (2011) (citing State v. Smith, 165 Wn.2d 511, 516, 199 P.3d 386 (2009)).

Analysis

¶7 Whether individuals have an expectation of privacy in the content of their text messages under state law is an issue of first impression in Washington. Similarly, whether federal law protects the content of text messages has not been settled in federal courts. In City of Ontario v. Quon, 560 U.S. 746, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010), the United States Supreme Court assumed, without deciding, that citizens do have a reasonable expectation of privacy in their text messages but upheld a police department’s review of an officer’s text messages as reasonable under the Fourth Amendment. Several lower courts have held that people have an expectation of privacy under the Fourth Amendment in the content stored on their cell phones, including text messages. See United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008); United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007); United States v. Davis, 787 F. Supp. 2d 1165, 1170 (D. Or. 2011); United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. 2009). Other courts have found a privacy interest in text messages stored by a service provider. See Missouri v. Clampitt, 364 S.W.3d 605, 611 (Mo. Ct. App. 2012); State v. Bone, 12-34 (La. App. 5 Cir. 9/11/12); 107 So. 3d 49, 63-67. Fewer courts have addressed the privacy interests of a sender when police access a sender’s text messages on a recipient’s device. Compare State v. Patino, No. P1-10-1155A, slip op. (R.I. Super. Ct. Sept. 4, 2012) (finding sender had reasonable expectation of privacy in sent text messages accessed by police during search of recipient’s cell phone), with Fetsch v. City of Roseburg, 2012 WL 6742665 (D. Or. Dec. 31, 2012) (finding sender had no reasonable expectation of privacy in text messages once sent to a third party). We do not reach the Fourth Amendment inquiry as we resolve this case under our state constitution, which “ ‘ clearly recognizes an individual’s right to privacy with no express limitations’.” State v. Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994) (quoting State v. Simpson, 95 Wn.2d 170, 178, 622 P.2d 1199 (1980)).

¶8 When presented with arguments under both the state and federal constitutions, we start with the state constitution. State v. Athan, 160 Wn.2d 354, 365, 158 P.3d 27 (2007) (citing State v. Carter, 151 Wn.2d 118,125,85 P.3d 887 (2004)). It is well established that article I, section 7 is qualitatively different from the Fourth Amendment and provides greater protections. Id.; State v. O’Neill, 148 Wn.2d 564, 584, 62 P.3d 489 (2003); State v. Jackson, 150 Wn.2d 251, 259, 76 P.3d 217 (2003); see also State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). Article I, section 7 “is grounded in a broad right to privacy” and protects citizens from governmental intrusion into their private affairs without the authority of law. State v. Chacon Arreola, 176 Wn.2d 284, 291-92, 290 P.3d 983 (2012) (citing State v. Valdez, 167 Wn.2d 761, 772, 224 P.3d 751 (2009)).

¶9 The private affairs inquiry is broader than the Fourth Amendment’s reasonable expectation of privacy inquiry. Young, 123 Wn.2d at 181. Under the Fourth Amendment, a search occurs if the government intrudes on a subjective and reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351-52, 88 S. Ct. 507,19 L. Ed. 2d 576 (1967). Under article I, section 7, a search occurs when the government disturbs “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) (emphasis added). The “authority of law” required by article I, section 7 is a valid warrant unless the State shows that a search or seizure falls within one of the jealously guarded and carefully drawn exceptions to the warrant requirement. State v. Miles, 160 Wn.2d 236, 244, 156 P.3d 864 (2007); State v. Rife, 133 Wn.2d 140,150-51, 943 P.2d 266 (1997). Here, the State does not argue that there was an exception but rather that the text message communications were not “private affairs” under our constitution.

¶10 To determine whether governmental conduct intrudes on a private affair, we look at the “nature and extent of the information which may be obtained as a result of the government conduct” and at the historical treatment of the interest asserted. Miles, 160 Wn.2d at 244 (citing State v. McKinney, 148 Wn.2d 20, 29, 60 P.3d 46 (2002)); see also, e.g., State v. Jorden, 160 Wn.2d 121,129,156 P.3d 893 (2007) (finding random, suspicionless searches of a motel guest registry unconstitutional because those searches may provide “ ‘intimate details about a person’s activities and associations’ ” (quoting McKinney, 148 Wn.2d at 30 n.2)); McKinney, 148 Wn.2d at 30 (finding no privacy interest in department of licensing records because they do not “reveal intimate details of the defendants’ lives, their activities, or the identity of their friends or political and business associates”).²

¶11 Viewing the contents of people’s text messages exposes a “wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations.” United States v. Jones,_U.S._, 132 S. Ct. 945, 955,181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring) (discussing GPS (global positioning system) monitoring). Text 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. Although text message technology rendered Hinton’s communication to Lee more vulnerable to invasion, technological advancements do not extinguish privacy interests that Washington citizens are entitled to hold. The right to privacy under the state constitution is not confined to “a ‘protected places’ analysis” or “to the subjective privacy expectations of modern citizens who, due to well publicized advances in surveillance technology, are learning to expect diminished privacy in many aspects of their lives.” Myrick, 102 Wn.2d at 513, 511. We find that the officer’s conduct invaded Hinton’s private affairs and was not justified by any authority of law offered by the State.

¶12 The Court of Appeals relied on State v. Wojtyna, 70 Wn. App. 689, 855 P.2d 315 (1993), where the court held that Wojtyna’s phone number, displayed on a pager, was not a private affair protected under the state constitution. The court recognized that telephonic and electronic communications are strongly protected under Washington law but found that situation different because “all that was learned from the pager was the telephone number of one party, the party dialing.” Id. at 695 (emphasis added). In contrast, the nature and extent of information exchanged during a text messaging conversation can involve the same intimate details shared during personal phone calls. Sophisticated text messaging technology enables “[l]ayered interpersonal communication [s]” that reveal “intimate . . . thoughts and emotions to those who are expected to guard them from publication.” Patino, slip op. at 83, 70. Text messaging is an increasingly common mode of personal communication. Br. of Amicus Curiae Elec. Frontier Found, at 6 (noting statistic that users who text sent or received an average of 41.5 messages per day (citing Aaron Smith, Pew Research Ctr., Americans and Text Messaging (Sept. 19, 2011), available at http://www.pewinternet.org/2011/09/19 /americans-and-text -messaging/)). Text message use is expected to rise given that 95 percent of young adults, ages 18-29, use text messaging. Smith, supra, at 3.

¶13 Many courts, in finding a legitimate expectation of privacy in the contents of one’s cell phone, have recognized the private nature of text messages. See Zavala, 541 F.3d at 577 (finding that “cell phones contain a wealth of private information, including ... text messages”); Finley, 477 F.3d at 259; Davis, 787 F. Supp. 2d at 1170; United States v. Gomez, 807 F. Supp. 2d 1134, 1140 (S.D. Fla. 2011); Quintana, 594 F. Supp. 2d at 1299; State v. Smith, 124 Ohio St. 3d 163, 169, 2009-Ohio-6426, 920 N.E.2d 949; cf. Quon, 560 U.S. at 760 (noting that text messaging communications are “so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification”). Despite the fact that a cell phone is carried on a person in public, text messages often contain sensitive personal information about an individual’s associations, activities, and movements. Moreover, 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.” Patino, slip op. at 70.

¶14 The historical treatment of phone calls and electronic communications supports finding that text messages are private affairs. In Gunwall, we noted Washington’s “long history of extending strong protections to telephonic and other electronic communications.” 106 Wn.2d at 66. We detailed the history of statutory protection for telegrams, which was rooted in the 1881 Code, adopted before statehood. Id. Washington’s privacy act, chapter 9.73 RCW, which prohibits anyone not operating under a court order from intercepting or recording certain private communications without the consent of all parties, is one of the most restrictive surveillance laws ever promulgated. State v. Roden, 179 Wn.2d 893, 898, 321 P.3d 1183 (2014) (citing State v. Faford, 128 Wn.2d 476,481,910 P.2d 447 (1996)). “In balancing the legitimate needs of law enforcement to obtain information in criminal investigations against the privacy interests of individuals, the Washington [privacy act], unlike similar statutes in ... other states, tips the balance in favor of individual privacy at the expense of law enforcement’s ability to gather evidence without a warrant.” State v. Christensen, 153 Wn.2d 186,199, 102 P.3d 789 (2004). In fact, “[(Intercepting or recording telephone calls violates the privacy act except under narrow circumstances, and we will generally presume that conversations between two parties are intended to be private.” State v. Modica, 164 Wn.2d 83, 89, 186 P.3d 1062 (2008).

¶15 Our legislature used sweeping language to protect personal conversations from intrusion. See RCW 9.73-.030(1)(a) (protecting “[p]rivate communication transmitted by telephone, telegraph, radio, or other device” (emphasis added)). Based on that broad language, this court has consistently extended statutory privacy in the context of new communications technology, despite suggestions that we should reduce the protections because of the possibility of intrusion. See Faford, 128 Wn.2d 476 (cordless phone); Christensen, 153 Wn.2d 186 (same); State v. Townsend, 147 Wn.2d 666, 674, 57 P.3d 255 (2002) (e-mails). In Roden, stemming from the same set of facts that gave rise to Hinton’s appeal, we determined that the privacy act protected Roden’s text messages from interception without consent or a court order. Roden, 179 Wn.2d at 906-07. We have “repeatedly emphasized in considering constitutional privacy protections [ that] the mere possibility that intrusion on otherwise private activities is technologically feasible will not strip citizens of their privacy rights.” Faford, 128 Wn.2d at 485 (citing Young, 123 Wn.2d at 186; Myrick, 102 Wn.2d at 513-14). Even under the Fourth Amendment, the United States Supreme Court found that an individual making a phone call in a telephone booth had a reasonable expectation of privacy even though he made the calls from a place where he could have been seen. Katz, 389 U.S. 347.

¶16 The Court of Appeals extended rules applied to letters directly to text messages, concluding that any privacy interest in a text message is lost when it is delivered to the recipient. See Hinton, 169 Wn. App. at 43 (citing United States v. King, 55 F.3d 1193, 1195-96 (6th Cir. 1995) (holding that where King voluntarily mailed letters to his wife, his expectation of privacy terminated upon delivery to her)). While text messages have much in common with phone calls and letters, they are a unique form of communication, and we will not strain to apply analogies where they do not fit. Courts have recognized that an individual maintains an expectation of privacy in sealed letters despite subjecting them to vulnerability in transit. See Ex parte Jackson, 96 U.S. (6 Otto) 727,24 L. Ed. 877 (1877). But unlike letters, which are generally delivered to the home where they remain protected from intrusion, text messages are delivered to a recipient’s cell phone instantaneously and remain susceptible to exposure because of a cell phone’s mobility. Just as subjecting a letter to potential interception while in transit does not extinguish a sender’s privacy interest in its contents, neither does subjecting a text communication to the possibility of exposure on someone else’s phone. We find that Hinton retained a privacy interest in the text messages he sent, which were delivered to Lee’s phone but never received by Lee.

¶17 The Court of Appeals erred by finding that Hinton lost his privacy interest in the text message communications because he sent them to a device over which he had no control. Given the realities of modern life, the mere fact that an individual shares information with another party and does not control the area from which that information is accessed does not place it outside the realm of article I, section 7’s protection. In Jorden, 160 Wn.2d 121, we held that the practice of checking names in a motel registry for outstanding warrants without individualized or particularized suspicion violated a defendant’s privacy under article I, section 7. Because information contained in a motel registry is personal and sensitive, it is a private affair notwithstanding the fact that the area searched belongs to the motel and that an individual has no control or possessory interest in a motel’s registry. See id. at 129-30. Similarly, notwithstanding the fact that an individual voluntarily shares financial information with his bank and can assert no property or possessory interests in the bank’s files, banking records are protected by the state constitution because they “may disclose what the citizen buys[ and] what political, recreational, and religious organizations a citizen supports.” Miles, 160 Wn.2d at 246. This court has consistently declined to require individuals to veil their affairs in secrecy and avoid sharing information in ways that have become an ordinary part of life. See, e.g., Gunwall, 106 Wn.2d at 67 (finding that “ ‘[a] telephone is a necessary component of modern life’ ” and “ ‘[t]he concomitant disclosure’ ” to the telephone company of the numbers dialed by the telephone subscriber “ ‘does not alter the caller’s expectation of privacy’ ” (quoting People v. Sporleder, 666 P.2d 135,141 (Colo. 1983))). Hinton certainly assumed the risk that Lee would betray him to the police, but Lee did not consent to the officer’s conduct. The risk that one to whom we impart private information will disclose it is a risk we “ ‘necessarily assume whenever we speak.’ ” Hoffa v. United States, 385 U.S. 293, 303, 87 S. Ct. 408,17 L. Ed. 2d 374 (1966) (quoting Lopez v. United States, 373 U.S. 427, 465, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963)); see also, e.g., State v. Corliss, 123 Wn.2d 656, 870 P.2d 317 (1994) (holding petitioner’s state constitutional privacy rights were not violated when an informant consented to allow police officers to overhear his conversations with petitioner). But that risk should not be automatically transposed into an assumed risk of intrusion by the government. See, e.g., State v. Boland, 115 Wn.2d 571, 581, 800 P.2d 1112 (1990) (finding that the “proper and regulated collection of garbage” is “necessary to the proper functioning of modern society” and exposure of garbage to a licensed trash collector “does not also infer an expectation of governmental intrusion”).

¶18 This incidental exposure of private information in the course of everyday life is distinct from other kinds of voluntary disclosure that extinguish privacy interests under article I, section 7. A defendant who leaves a paper bag on a street corner — where it lies in plain view on premises belonging to a stranger — certainly waives his privacy interest by voluntarily exposing it to the public. State v. Loran, 62 Wn.2d 4, 380 P.2d 733 (1963). Likewise, where an individual voluntarily discloses information to a stranger, he cannot claim a privacy interest. See, e.g., Goucher, 124 Wn.2d at 784; State v. Hastings, 119 Wn.2d 229,235-36,830 P.2d 658 (1992) (finding no violation of private affairs because “[t]he decision to allow strangers to enter was made absent coercion by the police and with full knowledge of the illegal activity occurring within”). But like an individual who places his trash on the curb for routine collection by a trash collector, or one who dials telephone numbers from his home phone, or one who shares personal information with a bank or motel, one who has a conversation with a known associate through personal text messaging exposes some information but does not expect governmental intrusion.

¶19 We are not persuaded that Hinton voluntarily exposed the text messages in a way that extinguished his privacy interest in the conversation. We reject the State’s argument that the text messages were in plain view. The observation of that which is in plain view does not constitute a search because voluntary exposure to the public extinguishes any privacy interest. See, e.g., Loran, 62 Wn.2d at 5. However, here only one nonincriminating message was arguably in the detective’s plain view. This case does not ask whether viewing a single isolated message that appeared on the screen violated Hinton’s rights, and describing the subsequent text messages as “in plain view” denies the scope and extent of the detective’s intrusive conduct, which involved operating the phone and posing as Lee to send text messages back and forth with Hinton.

¶20 Cases where we upheld other police ruses do not condone the detective’s conduct here. The State compares this situation to Goucher, 124 Wn.2d 778, where an officer answered a telephone call from Goucher during a lawful search of a residence. When Goucher asked to speak to Luis, the detective told him that Luis had gone on a run but that he (the detective) could “handl[e] business.” Id. at 781. Because Goucher voluntarily chose to continue the conversation and “expose [ ] his desire to buy drugs to someone he did not know,” we found that the communication was not private. Id. at 784. Amicus curiae Washington Association of Prosecuting Attorneys (WAPA) cites Athan, 160 Wn.2d 354, where police deceived Athan by convincing him to send an envelope by mail to a fictitious law firm invented by police. Br. of Amicus Curiae WAPA at 7-8. We found that when Athan voluntarily placed the envelope in the mail, he lost any privacy interest in his saliva on the envelope flap. Athan, 160 Wn.2d at 387. We upheld both of these practices because the defendants in those cases voluntarily disclosed information to strangers and assumed the risk of being “ ‘deceived as to the identity of one with whom one deals,’ ” a risk that is “ ‘inherent in the conditions of human society.’ ”Hoffa, 385 U.S. at 303 (quoting Lopez, 373 U.S. at 465).

¶21 But here, Detective Sawyer essentially posed as Lee and sent text messages to Hinton from Lee’s cell phone. Unlike a phone call, where a caller hears the recipient’s voice and has the opportunity to detect deception, there was no indication that anyone other than Lee possessed the phone, and Hinton reasonably believed he was disclosing information to his known contact. The disclosure of information to a stranger, Detective Sawyer, cannot be considered voluntary like Goucher’s choice to speak with someone he did not know who claimed to be “handling business” or Athan’s choice to engage in business with an unknown law firm that was actually fictitious. Law enforcement is certainly permitted to use some deception, but “ ‘ [experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.’ ” Chandler v. Miller, 520 U.S. 305, 322,117 S. Ct. 1295,137 L. Ed. 2d 513 (1997) (quoting Olmstead v. United States, 277 U.S. 438, 479, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting)). Forcing citizens to assume the risk that the government will confiscate and browse their associates’ cell phones tips the balance too far in favor of law enforcement at the expense of the right to privacy.

Conclusion

¶22 The state constitution “ ‘clearly recognizes an individuals’ right to privacy with no express limitations.’ ” Young, 123 Wn.2d at 180 (quoting Simpson, 95 Wn.2d at 178). Protecting the privacy of personal communications is essential for freedom of association and expression. See Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring) (“Awareness that the Government may be watching chills associational and expressive freedoms.”). This court noted in Rhinehart v. Seattle Times Co. that the right to privacy has been described as “ ‘the most comprehensive of rights,’ ” protecting citizens “ ‘in their beliefs, their thoughts, their emotions and their sensations.’ ” 98 Wn.2d 226, 240, 242, 654 P.2d 673 (1982) (quoting Olmstead, 277 U.S. at 478 (Brandeis, J., dissenting)). The use of text messaging for raw and immediate communications about private subjects is widespread and growing. To forgo sending text messages or to limit the use of text messaging to completely inconsequential matters is not only “unpalatable, [but] untenable, and disadvantageous relative to participating within our technologically dependent culture.” Patino, slip op. at 77.

¶23 We reverse the Court of Appeals and vacate the conviction without prejudice. Hinton’s private affairs were disturbed by the warrantless search of Lee’s cell phone. Article I, section 7 protects Washington citizens from governmental intrusion into affairs that they should be entitled to hold safe from governmental trespass, regardless of technological advancements.

C. Johnson, Fairhurst, Stephens, and Gordon McCloud, JJ., concur.

1 Roden claims in a separate case before this court that the detective’s actions violated Washington’s privacy act. State v. Roden, 179 Wn.2d 893, 321 P.3d 1183 (2014).

2 Generally, article I, section 7 rights may be enforced by exclusion of evidence only at the instance of one whose own privacy rights were infringed by government action. See State v. Goucher, 124 Wn.2d 778, 788, 881 P.2d 210 (1994). Our analysis therefore begins with the question of whether the State disturbed Hinton’s private affairs. See, e.g., Jorden, 160 Wn.2d at 125-27. In this case, that standing analysis basically duplicates the substantive article I, section 7 analysis discussed below. Simply put, Hinton had standing to challenge the search of Lee’s phone if the search disturbed a privacy interest he had in his text messages to Lee.