Constitutional Law

Appeals Court OKs Detective's Warrantless Use of Suspect's Seized Cellphone to Text His Contacts

Courts in this country have often equated a cellphone with an address book, as far as listed phone numbers are concerned.

And, taking that concept a step further, a number have also OK’d police looking at other information in seized electronic devices. Thus, like the California Supreme Court, appellate courts in Washington state appear to have no problem with police reading a suspect’s text messages on his cellphone after he is arrested, without a warrant.

But recent appellate decisions in Washington state now take that intrusion another step or two down what some would consider a slippery slope, according to Ars Technica’s Law & Disorder blog.

They OK a police detective’s use of a suspected drug dealer’s cellphone to send text messages, apparently from the suspect, in response to communications from third parties who were thought to be looking to buy drugs.

Shawn Hinton, who happened to send a text to suspect Daniel Lee, asking Lee to call him, shortly after Lee was arrested, protested when he, too, was arrested and convicted, after receiving a series of responding texts from a detective on Lee’s cellphone that attempted to set up a heroin buy.

But the Washington Court of Appeals, in a divided June 26 ruling, said neither the state constitution nor the Fourth Amendment of the U.S. Constitution protected Hinton from having his text messages read without a warrant.

“On his own iPhone, on his own computer, or in the process of electronic transit, Hinton’s communications are shielded by our constitutions,” Judge Joel Penoyar wrote for the majority, referring to the state and federal constitutions. “But after their arrival, Hinton’s text messages on Lee’s iPhone were no longer private or deserving of constitutional protection.”

Judge Marywave Van Deren saw the situation differently. In addition to reading the text received from Hinton, the detective also searched Lee’s phone for Hinton’s number and then responded, which should have occurred after a warrant was obtained, she wrote in her dissent.

“The majority’s opinion exposes every user of a smartphone to unregulated state searches of their phone’s contents, without probable cause and without a search warrant, if a police officer comes into possession of such a phone,” she wrote. “This reasoning could be used to erode the necessity of a search warrant for home computers if police come into possession of such a personal computer. That has not been the law in Washington.”

Related coverage:

ABA Journal: “States Split Over Warrantless Searches of Cellphone Data” “Cops Can Obtain Number from Cellphone Without Warrant, Posner Opinion Says”

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.