State v. Hinton

280 P.3d 476, 169 Wash. App. 28

• Court: Court of Appeals of Washington
• Decided: June 26, 2012
• Docket: No. 41014-1-II
• Status: Published

Opinions

Penoyar, J.

¶1 A police detective acquired the iPhone¹ of a suspected drug dealer. While the phone was in the detective’s possession, a text message from Shawn Hinton appeared on the iPhone’s screen, asking the dealer to call Hinton. Posing as the dealer, the detective replied to Hinton’s text message. The two men proceeded to exchange several text messages, eventually arranging a drug transaction, which led to Hinton’s conviction for attempted possession of heroin. Hinton appeals his conviction, arguing that the detective violated article I, section 7 of the state constitution and the Fourth Amendment to the federal constitution when he used the dealer’s iPhone to read and to reply to text messages that Hinton sent to the dealer. Because neither article I, section 7 of the Washington Constitution nor the Fourth Amendment to the United States Constitution protect Hinton’s text messages on the recipient’s iPhone, we affirm.

FACTS

¶2 On November 3, 2009, when Detective Kevin Sawyer arrived to begin his shift, several officers gave Sawyer an iPhone they had seized from Daniel Lee, who had been arrested earlier that day on drug charges.² At one point while Sawyer had the iPhone in his possession, he heard a “ding” from the iPhone, indicating that it had received a new text message. Report of Proceedings (RP) at 20. Sawyer picked up the iPhone and viewed the following message, which appeared in its entirety on the iPhone’s screen: “Hey whats up dogg can you call me i need to talk to you.” Clerk’s Papers (CP) at 28. The text message was from “Z-Shawn Hinton.” RP at 22. Sawyer knew Hinton from past arrests.

¶3 Sawyer responded to Hinton’s text message using Lee’s iPhone. The following text message exchange occurred:

[Sawyer]: Can’t now. What’s up?

[Hinton]: I need to talk to you about business. Please call when you get a chance.

[Sawyer]: I’m about to drop off my last.

[Hinton]: Please save me a ball. Please? I need it. I’m sick.

[3]

RP at 22-25. Through a series of additional text messages, the two men agreed to meet for a drug transaction in a grocery store parking lot. Sawyer contacted Hinton in the parking lot and arrested him. After the arrest, Sawyer called the phone number associated with Z-Shawn Hinton in Lee’s iPhone,⁴ and Hinton’s cell phone rang.

¶4 The State charged Hinton with attempted possession of heroin.⁵ Hinton moved to suppress “any and all evidence obtained as a result of the search of the cell phone taken from Daniel Lee.” CP at 7. He argued, in relevant part, that the detective’s actions violated Washington Constitution article I, section 7 and the Fourth Amendment. In response, the State argued that Hinton “did not have a legitimate expectation of privacy in the text messages.” CP at 18.

¶5 Sawyer, the State’s only witness at the suppression hearing, testified as we set out above. The trial court denied Hinton’s motion to suppress, stating:

Under State v. Wojtyna, 70 Wn. App. 689[, 855 P.2d 315] (1993), there is no expectation of privacy in a communication transmitted to a device such as an iPhone. Text messages are an active form of communication. Whoever is sending a text message does not know who is observing the message. The sender of a text message makes an assumption that the message will be received by the person intended. The communication is not rendered private based on that assumption.

CP at 30.

¶6 Hinton stipulated that he committed the crime. The trial court convicted him at a stipulated facts trial. Hinton appeals.

ANALYSIS

¶7 Hinton argues that he had a reasonable expectation of privacy in the text message that he sent to Lee’s iPhone. It is important to note that Hinton is arguing a privacy interest in another’s electronic device, not his own. He argues that when Sawyer read Hinton’s text message without having obtained a warrant, Sawyer conducted a search that violated Washington Constitution article I, section 7, and the Fourth Amendment. He asserts, therefore, that the trial court should have suppressed the fruits of Sawyer’s illegal search, including “the officer’s communications with [Hinton], as well as the presence of [Hinton] at the fake drug sale the officer arranged.” Appellant’s Br. at 16. This argument fails because the text messages as received on Lee’s iPhone are not protected under either the state or the federal constitution.

¶8 We review 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). We turn first to the state constitutional challenge. State v. Afana, 169 Wn.2d 169, 176, 233 P.3d 879 (2010).

A. Hinton’s Text Messages Found on Lee’s Phone Are Not Protected under Article I, Section 7 of the Washington Constitution

f 9 Article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” This provision protects a person’s home and private affairs from warrantless searches. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). It is well settled that article I, section 7 affords qualitatively different — and potentially broader — protections than those provided by the Fourth Amendment to the United States Constitution. State v. McKinney, 148 Wn.2d 20, 26, 60 P.3d 46 (2002) (citing City of Seattle v. McCready, 123 Wn.2d 260, 267, 868 P.2d 134 (1994)). But merely holding that a given state constitutional provision affords enhanced protection in a particular context does not necessarily lead to the same result in a different context. McKinney, 148 Wn.2d at 26 (quoting State v. Johnson, 128 Wn.2d 431, 446, 909 P.2d 293 (1996)). We must determine “whether the language of the state constitutional provision and its prior interpretations actually compel a particular result.” McKinney, 148 Wn.2d at 26; McCready, 123 Wn.2d at 267.

¶10 When dealing with a challenge under article I, section 7, we use a two-step analysis. State v. Valdez, 167 Wn.2d 761, 772, 224 P.3d 751 (2009). First, we must determine whether the State has intruded into a person’s private affairs. Valdez, 167 Wn.2d at 772 (quoting York v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 306, 178 P.3d 995 (2008)). If the State has disturbed a privacy interest, the second step in our analysis asks whether the authority of law required by article I, section 7 justifies the intrusion, which is satisfied only by a valid warrant, limited to a few jealously guarded exceptions. Valdez, 167 Wn.2d at 772 (quoting York, 163 Wn.2d at 306).

¶11 Private affairs are “ ‘those privacy interests which citizens of [Washington] have held, and should be entitled to hold, safe from governmental trespass.’ ” McKinney, 148 Wn.2d at 27 (alteration in original) (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). It is not “ ‘merely an inquiry into a person’s subjective expectation of privacy but is rather an examination of whether the expectation is one which a citizen of this state should be entitled to hold.’ ” McKinney, 148 Wn.2d at 27 (quoting McCready, 123 Wn.2d at 270). In determining if an interest constitutes a private affair, we look at the historical treatment of the asserted interest, analogous case law, and statutes and laws supporting the interest asserted. McKinney, 148 Wn.2d at 29-32. Voluntary exposure by a defendant is relevant to our inquiry and can negate an asserted privacy interest. State v. Athan, 160 Wn.2d 354, 366, 158 P.3d 27 (2007) (citing McKinney, 148 Wn.2d at 29).

¶12 We hold that in the context of the facts presented here, Hinton’s text messages to Lee’s iPhone are not Hinton’s private affairs for purposes of article I, section 7.⁶ First, there is no long history and tradition of strict legislative protection of a text message sent to, displayed on, and received at its intended destination: another person’s iPhone.

¶13 Second, analogous case law from Division One highlights the distinction in article I, section 7 jurisprudence between when a governmental officer intercepts a message transmitted from the sender to the recipient and when a governmental officer views a message received by a third party. Wojtyna, 70 Wn. App. at 691-93. In Wojtyna, police seized a drug dealer’s pager and monitored the pager’s incoming calls.⁷ 70 Wn. App. at 691. A police detective called one of the incoming telephone numbers and arranged to meet Wojtyna for a drug transaction. Wojtyna, 70 Wn. App. at 691. At the meeting site, the police arrested Wojtyna for attempted possession of a controlled substance. Wojtyna, 70 Wn. App. at 691.

¶14 Division One rejected Wojtyna’s claim that police officers conducted an illegal search under article I, section 7. Wojtyna, 70 Wn. App. at 691, 694. While undertaking a Gunwall analysis, the court held that while Washington has historically extended strong protection to telephonic and electronic communications, a pager is “fundamentally different” from other forms of protected communications because the activity “is the seizure of a number sent to and received by a third party [,] which happened to be Wojtyna’s.” Wojtyna, 70 Wn. App. at 692; see State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). For purposes of article I, section 7, the court explained that the State did not monitor every number Wojtyna dialed at the source, “but rather, where his number was independently displayed and retrieved from the place to which he intended to send it.” Wojtyna, 70 Wn. App. at 692. For this reason, there was no “ ‘preexisting state law’ ” warranting a broader protection than the Fourth Amendment. Wojtyna, 70 Wn. App. at 693.

¶15 The court added that it had not found another jurisdiction holding that monitoring a third party’s pager was an unconstitutional search under independent state grounds, so the issue was not local in character or of a particular state interest. Wojtyna, 70 Wn. App. at 693. The court proceeded to hold that the police did not violate the Fourth Amendment, implicitly holding that the police complied with both article I, section 7 and the Fourth Amendment. Wojtyna, 70 Wn. App. at 693-94.

¶16 While the Wojtyna court did not use the term “private affair,” the only reading of that opinion is that article I, section 7 did not apply because of the nature of the third party relationship did not implicate Wojtyna’s privacy interest:

Wojtyna cannot show that he has sought to preserve the message as “private”. By transmitting his number into a pager, Wojtyna has “run the risk” that it would be received by whomever is in possession or that the owner or someone in possession would disclose the contents. The confidentiality of the transmission was uncertain and there is no reason to find that it was intended to be “private”.

Wojtyna, 70 Wn. App. at 695-96. This amounted, to the private affairs inquiry.

¶17 The reasoning underlying the Wojtyna decision applies equally to Hinton’s text messages sent to Lee’s iPhone. Like in Wojtyna, Hinton transmitted messages to a device— Lee’s iPhone — over which he had no control. See Wojtyna, 70 Wn. App. at 692. By doing so, he voluntarily ran the risk that his messages, once delivered, would be received by whomever possessed the iPhone, and he had no control over what that person might do with that message. See Wojtyna, 70 Wn. App. at 692. Like in Wojtyna, the State did not monitor every message Hinton sent, “but rather, where his [message] was independently displayed and retrieved from the place to which he intended to send it.” Wojtyna, 70 Wn. App. at 692; see also State v. Goucher, 124 Wn.2d 778, 781, 784, 881 P.2d 210 (1994) (police detective did not violate article I, section 7 when he answered the telephone while executing a search warrant at a suspected drug dealer’s home, told the caller that he “was handling business,” and arranged a drug transaction with the caller; an individual has no reasonable expectation of privacy when he “voluntarily expose [s] his desire to buy drugs to someone he did not know”).

¶18 Third, Hinton cites no statutes, and we know of none, showing that text messages displayed on a third party’s phone require protection.⁸ Accordingly, the historical treatment of text messages, analogous case law, and the lack of analogous statutes show that Hinton’s text messages found on Lee’s phone are not protected under article I, section 7.⁹

B. The Text Messages Are Not Protected under the Fourth Amendment

¶19 Hinton also argues that the police violated his right to be free from unreasonable search or seizure under the Fourth Amendment. Wojtyna again controls the instant case and rejects Hinton’s argument.

¶20 When analyzing Wojtyna’s Fourth Amendment challenge, the appellate court explicitly adopted the rationale from the Sixth Circuit. Wojtyna, 70 Wn. App. at 693-94 (citing United States v. Meriwether, 917 F.2d 955 (6th Cir. 1990)). In Meriwether, the Drug Enforcement Agency (DEA), pursuant to a search warrant, seized a pager at a suspected narcotics dealer’s residence. 917 F.2d at 957. DEA agents monitored and recorded the incoming telephone numbers. Meriwether, 917 F.2d at 957. When the defendant’s number appeared on the pager, a DEA agent called the defendant and arranged a drug transaction. Meriwether, 917 F.2d at 957. The Meriwether court rejected the defendant’s argument that “he had a reasonable expectation of privacy in the transmitted phone number that was protected under the Fourth Amendment.” 917 F.2d at 958. The Wojtyna court quoted extensively from the following analysis in Meriwether:

Here, appellant fails to show that he has sought to preserve a message as private by transmitting it into a paging receiver over which he has no control. Indeed, the Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” We have followed the general theory set forth in Smith [v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)].[10] In United States v. Passarella, 788 F.2d 377 (6th Cir. 1986), an agent, armed with an arrest warrant, entered the defendant’s home. While there the agent answered several telephone calls for the defendant. Apparently believing that the agent was the defendant, the callers made incriminating statements about the sale of drugs. We held that the Fourth Amendment does not protect a wrongdoer’s misplaced trust that the one intended to receive a communication will actually receive it. We held that the district court properly admitted evidence of the phone conversations.

A party sending a message to a pager has expressed his subjective desire to preserve his privacy even less than in the telephone situation. When one transmits a message to a pager, he runs the risk that the message will be received by whomever is in possession of the pager. Unlike the phone conversation where a caller can hear a voice and decide whether to converse, one who sends a message to a pager has no external indicia that the message actually is received by the intended recipient. Accordingly, when a person sends a message to a pager, he runs the risk that either the owner or someone in possession of the pager will disclose the contents of his message. Since the actual confidentiality of a message to a pager is quite uncertain, we decline to protect appellant’s misplaced trust that the message actually would reach the intended recipient.

917 F.2d at 959 (citations omitted) (quoting Smith, 442 U.S. at 743-44); see Wojtyna, 70 Wn. App. at 693-94. Based on this analysis, the Wojtyna court concluded, “Under Meriwether, there was no constitutional violation.” 70 Wn. App. at 694.

¶21 Here, like in Wojtyna, Hinton sent messages to Lee’s iPhone, over which he had no control. See Wojtyna, 70 Wn. App. at 694 (quoting Meriwether, 917 F.2d at 959). He ran the risk that whoever possessed the iPhone, whether it be Lee or someone else, would receive his messages. See Wojtyna, 70 Wn. App. at 694 (quoting Meriwether, 917 F.2d at 959). The Fourth Amendment does not protect Hinton’s “misplaced trust that the message actually would reach the intended recipient.” Wojtyna, 70 Wn. App. at 694 (quoting Meriwether, 917 F.2d at 959).

¶22 Hinton attempts to distinguish Wojtyna on two grounds, neither of which is persuasive. First, he asserts that because cell phones can now “perform [ ] many of the functions of a personal computer,” an individual who sends a text message to a cell phone has a greater expectation of privacy in that communication than an individual, like the defendant in Wojtyna, who sends a message to a less sophisticated device like a pager. Appellant’s Br. at 9. But, as the reasoning in Meriwether makes clear, it is the individual’s decision to transmit a message to an electronic device that could be in anybody’s possession — and not the receiving device’s level of technological complexity — that defeats the individual’s expectation of privacy in that communication.

¶23 Second, Hinton notes that in Wojtyna, the defendant spoke with the DEA agent on the phone “and thereby assumed the risk that the person was not who he claimed he was.” Appellant’s Br. at 9. Hinton contends that because he exchanged text messages with Sawyer rather than speaking to him on the phone, he had no reason to suspect that another person besides Lee was replying to his text messages. Appellant’s Br. at 9-10. Thus, in his view, he enjoyed a greater expectation of privacy than the defendant in Wojtyna. Appellant’s Br. at 9-10. But Wojtyna and Meriwether both explicitly addressed the defendants’ expectation of privacy in the pager messages themselves. In neither case did it matter to the court’s privacy analysis that a police officer spoke with the defendant by phone before setting up the drug deal. Further, as the Meriwether court pointed out, an individual’s decision to send a message to an electronic device that could be in anybody’s possession actually suggests that the individual “has expressed his subjective desire to preserve his privacy even less than in the telephone situation.” 917 F.2d at 959.

¶24 Hinton cites three cases from the federal court of appeals for the proposition that a person has a reasonable expectation of privacy “in e-mails and text messages sent and received from a cell phone.” Appellant’s Br. at 10-11 (citing United States v. Warshak, 631 F.3d 266 (6th Cir. 2010); United States v. Zavala, 541 F.3d 562, 567, 570 (5th Cir. 2008); United States v. Forrester, 512 F.3d 500 (9th Cir. 2008)). None of these cases is on point. In Zavala, a DEA agent conducted a warrantless search of the defendant’s own cell phone after stopping the car in which the defendant was travelling on suspicion that the car’s occupants had committed an illegal drug transaction. 541 F.3d at 565, 569-71. The court reversed the defendant’s conviction because no exception to the warrant requirement applied. Zavala, 541 F.3d at 568. The court stated, in relevant part, that the defendant had a reasonable expectation of privacy regarding the information stored on his cell phone. Zavala, 541 F.3d at 577. But that is not the issue in the present case — here, the iPhone belonged to Lee, not Hinton. That an individual may have a reasonable expectation of privacy in certain contents of his or her own cell phone, including the sent and received text messages that are stored on the phone, is simply not at issue here.

¶25 In Forrester, the Ninth Circuit held that the government’s use of a pen register analogue to record the “to” and “from” information in the defendant’s e-mails, the Internet protocol addresses of the web sites that the defendant visited, and the total volume of data transmitted to and from the defendant’s account did not constitute a Fourth Amendment search. 512 F.3d at 504, 509. In its discussion, the court noted that the contents of e-mails, just like the contents of letters, “may deserve Fourth Amendment protection,” in contrast to the “to” or “from” information in an e-mail message, which is analogous to the address information on the outside of a sealed envelope or the phone number dialed. Forrester, 512 F.3d at 510-11. Because the government did not intercept the contents of the defendant’s e-mails in Forrester, this observation is dicta. In any case, that the Fourth Amendment may prohibit the government from intercepting the contents of an individual’s e-mails at an Internet service provider (ISP) has no bearing on this case, where the information was extracted from Hinton’s intended receiver’s device.

¶26 Lastly, Hinton cites Warshak, a Sixth Circuit case that is also inapposite. In Warshak, the government instructed the defendant’s ISP to preserve the defendant’s e-mail messages. 631 F.3d at 283. Thereafter, the ISP preserved copies of 27,000 e-mails that the defendant sent and received — copies that would not have existed without the government’s preservation request. Warshak, 631 F.3d at 283. The court held that an e-mail subscriber “enjoys a reasonable expectation of privacy in the contents of emails ‘that are stored with, or sent or received through, a commercial ISP’ ” Warshak, 631 F.3d at 288 (quoting Warshak v. United States, 490 F.3d 455, 473 (6th Cir. 2007), vacated, 532 F.3d 521 (2008)). The court’s analysis focused on the unique role that ISPs play in delivering e-mail:

An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call — unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.

631 F.3d at 286 (citation omitted). As this analysis makes clear, the Warshak court was primarily concerned with the legality of the government’s request that a service provider intercept a customer’s e-mails before the e-mails reached the intended recipient’s computer. Here, there was no interception, through the service provider or otherwise. Sawyer simply read the text messages after they were delivered to the intended recipient.

¶27 While Warshak does not aid Hinton, its comparison of e-mails with traditional forms of communication is helpful and we adopt it to hold that text messages deserve privacy protection similar to that provided for letters. It is well established that letters are “in the general class of effects” protected by the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 114, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); see also United States v. King, 55 F.3d 1193, 1195-96 (6th Cir. 1995). However, if a letter is sent to another, the sender’s expectation of privacy ordinarily terminates upon delivery. King, 55 F.3d at 1196 (holding that where King voluntarily mailed the letters at issue to his wife and did not expect her to return them, “his expectation of privacy in the letters terminated upon delivery of the letters to his wife”); United States v. Knoll, 16 F.3d 1313, 1322 (2d Cir. 1994) (“[B]ecause Gleave sent the letters to an individual with whom he had no relationship of confidentiality, any legitimate expectation of privacy he may have had in them was abandoned.”); 4 Wayne R. LaFave, Search and Seizure § 11.3(f) (2d ed. 1987). This is true even though the sender may have instructed the recipient to keep the letters private. King, 55 F.3d at 1196.

¶28 This rule has been applied to e-mail. See United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (holding that, like letter writers, whose expectation of privacy ends upon delivery of the letter, individuals do not possess a legitimate expectation of privacy “in transmissions over the Internet or e-mail that have already arrived at the recipient”); Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (a sender of an e-mail “would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient”); United States v. Dupree, 781 F. Supp. 2d 115, 159 (E.D.N.Y. 2011) (holding that defendants could not claim a legitimate expectation of privacy in e-mails that they gave an employee permission to access and view). As Professor Wayne R. LaFave explains in the Fourth Amendment e-mail context:

[Jjust as a letter writer’s “expectation of privacy ordinary terminates upon delivery” of the letter . . . once e-mail “transmissions are received by another person, the transmitter no longer controls its destiny.” This means, for example, that the person sending the e-mail has no valid Fourth Amendment complaint should the recipient turn the message over to the police or forward it on to others, or should the recipient turn out to be an undercover police officer.

1 Wayne R. LaFave, Search and Seizure § 2.6(f) at 727 (4th ed. 2004) (footnotes omitted) (quoting King, 55 F.3d at 1196; United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996)). Here, a text message user would expect that any privacy of the text message would terminate upon delivery to the receiving party and be subject to government trespass.

¶29 We decline to offer communication made using a technological device more privacy protections than have been provided for letters, one of the most traditional forms of communication. Case law has consistently applied the standard for letters to new technology. Like letters, a defendant has a privacy interest in messages stored on his or her own cell phone. See Zavala, 541 F.3d at 575-76. Like letters, electronic communications, including text messages, may not be intercepted and searched. See Warshak, 631 F.3d at 286. To now hold that a text message, received and automatically stored by a private recipient, is entitled to constitutional protection would be to depart from the logical application of traditional privacy rules.

¶30 On his own iPhone, on his own computer, or in the process of electronic transit, Hinton’s communications are shielded by our constitutions. But after their arrival, Hinton’s text messages on Lee’s iPhone were no longer private or deserving of constitutional protection.¹¹ Accordingly, the trial court did not err by denying Hinton’s motion to suppress.

¶31 Affirmed.

Worswick, C.J., concurs.

1 The iPhone is a “smartphone” with “computer-like capabilities” that enables users to browse the Internet, to send and receive e-mails and text messages, and to take photographs, among many other functions. See, e.g., In re Synchronoss Sec. Litig., 705 F. Supp. 2d 367, 374 (D.N.J. 2010).

2 The basis of the officers’ seizure of Lee’s iPhone (e.g., warrant, search incident to arrest, booking/inventory search) is not clear from the record. Whether Lee’s iPhone was lawfully seized is not at issue in this case.

3 Sawyer testified at the suppression hearing that a “ball” is “a drug weight” equivalent to “approximately 3.54 grams” and that “sick” is “a drug term” that describes “when people are coming off the high and ... looking to get some more.” RP at 8, 10.

4 To discover the phone number associated with Z-Shawn Hinton, Sawyer had to navigate to the contacts folder on Lee’s iPhone. It is unclear from the record when Sawyer accessed the contacts folder to retrieve Hinton’s phone number.

5 A violation of RCW 69.50.407 and RCW 69.50.4013(1); see also former RCW 69.50.204(b)(13) (1993) (heroin is a schedule I controlled substance).

6 Hinton does not challenge the seizure of Lee’s phone, so we do not address whether he would have standing to object to that seizure.

7 Whether the seizure of the pager from the drug dealer was lawful was not at issue. Wojtyna, 70 Wn. App. at 691.

8 We disagree with the dissent that Washington’s privacy act, chapter 9.73 RCW, and its case law demonstrate that the text messages on Lee’s iPhone are private affairs under article I, section 7 for two reasons. Dissent at 48-49 (citing State v. Townsend, 147 Wn.2d 666, 57 P.3d 255 (2002)). First, our Supreme Court has explained that determining whether the privacy act was violated “is, of course, a very different inquiry than whether the defendant’s constitutional rights were violated.” State v. Corliss, 123 Wn.2d 656, 661, 870 P.2d 317 (1994). Second, while Townsend held that ICQ (an instant messaging program) messages were private communications for purposes of the privacy act, the Supreme Court ultimately held that the privacy act had not been violated because the defendant impliedly consented to the recording. 147 Wn.2d at 674, 676, 678-79. The court held that the defendant impliedly consented to the recording because the defendant “as a user of e-mail had to understand that computers are, among other things, a message recording device and that his e-mail messages would he recorded on the computer of the person to whom the message was sent.” Townsend, 147 Wn.2d at 676.

9 We leave for another day to decide whether a defendant would have standing under article I, section 7 to challenge the seizure of a third party’s iPhone.

10 In Smith, the Court held that an individual does not have a reasonable expectation of privacy in telephone numbers that he or she dials from a home phone. 442 U.S. at 742-44. The Court noted that such an individual “voluntarily convey[s] numerical information to the telephone company and... [i]n so doing... assume [s] the risk that the company would reveal to police the numbers he dialed.” Smith, 442 U.S. at 744.

11 Again, we leave for another day the question whether a defendant has standing to suppress the seizure of a third party’s phone.