State v. Roden

279 P.3d 461, 169 Wash. App. 59

• Court: Court of Appeals of Washington
• Decided: June 26, 2012
• Docket: Nos. 41037-1-II; 41047-8-II
• Status: Published

Opinions

Penoyar, J.

¶1 A police detective acquired the iPhone¹ of a suspected drug dealer. The detective looked through the iPhone’s contents and replied to a text message from Jonathan Roden stored on the iPhone. Through a series of text messages from the dealer’s phone, the detective and Roden arranged to meet for a drug transaction, which led to Roden’s conviction of attempted possession of heroin. He appeals this conviction, arguing that the detective violated Washington’s privacy act, chapter 9.73 RCW, by intercepting his private text messages to the dealer. Because Roden impliedly consented to the recording and/or interception of the text messages that he sent to the dealer’s iPhone, his argument fails.

¶2 Additionally, Roden appeals a conviction of possession of heroin arising from a separate incident. He argues that a police officer violated his Washington Constitution article I, section 7 and Fourth Amendment rights by conducting a warrantless search of a zippered bag in his vehicle. Because officer safety reasons justified the warrantless search, this argument also fails. Accordingly, we affirm both of Roden’s convictions.

FACTS

¶3 The State charged Roden in two separate cause numbers with attempted possession of heroin (superior court cause no. 09-1-01153-0) and with possession of heroin (superior court cause no. 10-1-00091-4). Roden stipulated that he committed both crimes. The trial court convicted him at a stipulated facts trial. Roden appeals.

ANALYSIS

Washington’s Privacy Act

¶4 Roden argues that the detective’s interception of his text messages to a suspected drug dealer violated his rights under Washington’s privacy act, chapter 9.73 RCW. He does not raise any constitutional claims with regard to the detective’s actions. Because Roden impliedly consented to the recording of these text messages, this argument fails.

A. The Search

¶5 On November 3, 2009, when Detective Kevin Sawyer arrived to begin his shift, several officers gave him an iPhone they had seized from Daniel Lee, who had been arrested earlier that day on drug charges.² Sawyer spent about 5 or 10 minutes “looking at some of the text messages” on the iPhone; he also looked to see “who had been calling.” Report of Proceedings (RP) (Apr. 29, 2010) at 9. Many of the text messages that Lee’s iPhone had received and stored were from individuals who were seeking drugs from Lee. A text message from an individual identified as “Z-Jon” read, “I’ve got a hundred and thirty for the one-sixty I owe you from last night.” Clerk’s Papers (CP) (41037-l-II) at 24; RP (Apr. 29, 2010) at 11. Posing as Lee, Sawyer sent Z-Jon a text message reply, asking him if he “needed more.” RP (Apr. 29, 2010) at 11. Z-Jon responded:

Yeah, that would be cool. I still gotta sum [sic], but I could use some more. I prefer to just get a ball,

[3] so I’m only payin’ one eighty for it, instead of two Ts for two hundred, that way ... it would be easier for any to get up.

RP (Apr. 29, 2010) at 11.

¶6 Eventually, through a series of text messages, Sawyer and Z-Jon agreed to meet at a local grocery store for a drug transaction. From the parking lot, Sawyer sent a text message to Z-Jon, asking him to identify his car. Z-Jon responded that he was in a maroon GMC truck. Sawyer observed the truck in the parking lot and arrested Roden.

¶7 Roden moved to suppress “[t]he fact that text messages were exchanged and the content of those messages.” CP (41037-1-II) at 10. He asserted that Sawyer had violated RCW 9.73.030(l)(a), a provision of Washington’s privacy act (Act), because he had “clearly intercepted a private communication [that] was transmitted by a telephone without first obtaining the consent of Mr. Rodent,] who was one of the participants in the communication.” CP (41037-1-II) at 9.

¶8 At the suppression hearing, Sawyer testified consistent with the facts above. The trial court denied Roden’s suppression motion. The trial court entered the following conclusions of law:

3. Under RCW 9.73, there is no reasonable expectation of privacy by a sender from different [sic] cell phone in a cell phone’s inbox, just as there is no reasonable expectation of privacy in a text message found in a telephone call message left on an answering machine that could be overheard by anyone.

4. Washington’s Privacy Act is broad; however, there was no violation in this instance. The Defendant’s motion to suppress is denied.

CP (41037-1-II) at 25.

B. Roden Impliedly Consented to the Recording of the Text Messages

¶9 RCW 9.73.030(l)(a) states, in relevant part:

[I]t shall be unlawful for any individual ... or the state of Washington, its agencies, and political subdivisions to intercept, or record any ... [p]rivate communication transmitted by telephone ... between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.

Any information obtained in violation of RCW 9.73-.030(l)(a) is generally inadmissible in a criminal case. See RCW 9.73.050.

¶10 We engage in a four-pronged analysis to determine whether an individual has violated the Act. State v. Christensen, 153 Wn.2d 186, 192, 102 P.3d 789 (2004). There must have been (1) a private communication transmitted by a device that was (2) intercepted by use of (3) a device designed to record and/or transmit, (4) without the consent of all parties to the private communication. Christensen, 153 Wn.2d at 192 (citing RCW 9.73.030).

¶11 “[Wlhether a particular communication is private is generally a question of fact, but one that may be decided as a question of law if the facts are undisputed.” State v. Townsend, 147 Wn.2d 666, 673, 57 P.3d 255 (2002). Because the Act does not define “private,” our Supreme Court has adopted the dictionary definition: “ ‘belonging to one’s self . . . secret . . : intended only for the persons involved (a conversation) . . . holding a confidential relationship to something ... a secret message: a private communication . . . secretly: not open or in public.’ ” Townsend, 147 Wn.2d at 673 (internal quotation marks omitted) (quoting Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992)).

¶12 A communication is private when (1) the communicating parties manifest a subjective intention that it be private and (2) that expectation is reasonable. Christensen, 153 Wn.2d at 193. Factors bearing on the reasonableness of the privacy expectation include the duration and subject matter of the communication, the location of the communication and the potential presence of third parties, and the role of the nonconsenting party and his or her relationship to the consenting party. Townsend, 147 Wn.2d . But the mere possibility that interception of the communication is technologically feasible does not render public a communication that is otherwise private. Townsend, 147 Wn.2d at 674.

¶13 Townsend is instructive with regard to the issues of what constitutes a “private communication” and what constitutes consent. There, police set up a sting operation after receiving tips that Donald Townsend was attempting to use his computer to arrange sexual liaisons with young girls. Townsend, 147 Wn.2d at 670. A police detective established an e-mail account with a screen name of “ambergirl87,” a fictitious 13-year-old girl. Townsend, 147 Wn.2d at 670. Townsend began corresponding with “Amber” via e-mail, asking to meet her and saying that he wanted to “ ‘have fun’ ” with her. Townsend, 147 Wn.2d at 670. In one e-mail, he asked “Amber” to promise not to “ ‘tell anyone about us.’ ” Townsend, 147 Wn.2d at 670. The detective’s computer automatically stored these e-mail messages, which allowed the detective to read the messages at his leisure and to print them for use as evidence at a later time. Townsend, 147 Wn.2d at 670.

¶14 At Townsend’s request, the detective, under the guise of Amber, also set up an ICQ account to communicate with Townsend. Townsend, 147 Wn.2d at 670. ICQ is a software chat program that allows users to communicate in writing in real time over the Internet. Townsend, 147 Wn.2d at 670-71. The ICQ communications between Townsend and Amber contained graphic discussions about sexual topics; in two ICQ messages, Townsend told Amber that he wanted to have sex with her. Townsend, 147 Wn.2d at 671.

¶15 The Townsend court held, without distinguishing between the e-mail communications and the ICQ communications, that Townsend’s communications to the fictitious child were private for purposes of the Act. 147 Wn.2d at 674. The court explained:

[I]t is readily apparent from the undisputed facts that Townsend’s subjective intention was that his messages to Amber were for her eyes only. That intent is made manifest by Townsend’s message to Amber to not “tell anyone about us.” In addition, the subject matter of Townsend’s communications to Amber strongly suggests that he intended the communications to be private. While interception of these messages was a possibility, we cannot say that Townsend’s subjective intention that his communications were private was unreasonable under the circumstances.

Townsend, 147 Wn.2d at 674 (citation omitted).⁴

¶16 The Townsend court concluded, however, that the detective did not violate the Act because Townsend had impliedly consented to the recording of the e-mail messages and ICQ communications by the detective’s computer. Townsend, 147 Wn.2d at 676. The court cited In re Marriage of Farr, 87 Wn. App. 177, 184, 940 P.2d 679 (1997), for the proposition that “a communicating party will be deemed to have consented to having his or her communication recorded when the party knows that the messages will be recorded.” Townsend, 147 Wn.2d at 675-76. As the Townsend court noted, the Farr court held that an individual consented to the recording of his voice messages by leaving a message on an answering machine, the only function of which is to record messages. 147 Wn.2d at 676 (citing Farr, 87 Wn. App. at 184). The Townsend court stated that it “entirely agree [d]” with the Court of Appeals’ reasoning that

“[a] person sends an e-mail message with the expectation that it will be read and perhaps printed by another person. To be available for reading or printing, the message first must be recorded on another computer’s memory. Like a person who leaves a message on a telephone answering machine, a person who sends an e-mail message anticipates that it will be recorded. That person thus implicitly consents to having the message recorded on the addressee’s computer.”[5]

147 Wn.2d at 676 (quoting State v. Townsend, 105 Wn. App. 622, 629, 20 P.3d 1027 (2001)).

In sum, because Townsend, 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 be recorded on the computer of the person to whom the message was sent, he is properly deemed to have consented to the recording of those messages.

Townsend, 147 Wn.2d at 676.

¶17 Under the implied consent reasoning of the court in Townsend, Roden impliedly consented to the recording of his text messages on Lee’s iPhone. Roden voluntarily sent the text messages to Lee’s iPhone with the expectation that Lee would read them. In doing so, he also anticipated that the iPhone would record and store the incoming messages to allow Lee to read them. Cell phones, like computers, are “message recording device [s],” a fact that Roden must have understood as a user of text messaging technology on cell phones. Townsend, 147 Wn.2d at 676. Accordingly, Sawyer did not violate Roden’s rights under the Act.⁶

¶18 Roden asserts that Townsend’s implied consent theory does not apply to the present case. To support this argument, he states:

Unlike in Townsend, Detective Sawyer did not save the text messages sent by Roden. Sawyer testified that he saw text messages from Roden and “typed everything out” in his report. Consequently, the evidence was inadmissible because distinguishable from e-mail and ICQ messages, the saving and printing of messages is not inherent in text messaging.

Appellant’s Reply Br. at 2-3 (citation omitted). This argument fails. The relevant question is not whether Sawyer saved or printed the messages, but whether Roden understood that the iPhone would record and store the text messages that he sent to Lee. See Townsend, 147 Wn.2d at 676. Because, as a user of text message technology, Roden would have had this understanding, we find sufficient evidence to support the trial court’s conclusion that Roden had no reasonable expectation of privacy in his text messages in Lee’s phone. Thus, Roden impliedly consented to the recording of the text messages that he sent to Lee’s iPhone.⁷

¶19 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

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 A “ball” is “a drug weight” equivalent to approximately 3.5 grams.

4 The Townsend court also clarified that on the issue of whether a communication is private under the Act, it is not dispositive that the same device was used to communicate and to record the communication: “While one could certainly mount a cogent argument for the proposition that the privacy act should not apply when the recording of a transmission is done in a nonsurreptitious way on a device that is also used for communication, the plain language of the statute covers such recording.” Townsend, 147 Wn.2d at 675 n.2.

5 The Townsend court noted that implied consent was a “closer question” with regard to the ICQ communications. 147 Wn.2d at 676. The court analyzed the nature of the ICQ technology and the relevant terms of the privacy policy before concluding that Townsend had impliedly consented to the recording of the ICQ communications. Townsend, 147 Wn.2d at 676-79.

6 Since the legality of the iPhone’s seizure is not at issue, we 'do not address whether our decision would be different if the seizure were unlawful.

7 The dissent declines to follow Townsend, but we view it as binding precedent. And we agree with the Townsend court that “[t]he legislature may, however, wish to consider amending the statute in light of developments in technology. It is, as the concurrence correctly suggests, ‘in the best position to weigh the competing policies.’ ” Townsend, 147 Wn.2d at 675 n.2 (quoting Townsend, 147 Wn.2d at 685 (Bridge, J., concurring)).