Washington Court Rules that Police May Text Suspect From Drug Dealer’s iPhone

Text messaging is a great way to communicate, but beware that when you are texting your drug dealer the person who responds back may just be the police. In the State of Washington v. Jonathan N. Roden case, the iPhone of a suspected drug dealer was seized by the police. The suspected drug dealer’s iPhone received a text from a customer (Mr. Jonathan N. Roden) identified as “Z-Jon” on the contact list needing a drug hook up. The police impersonated the drug dealer and then set up a drug deal for an eight ball of heroin. Z-Jon was conviction for possession of heroin was upheld by the Washington Court of Appeals. The full case is found below.

STATE OF WASHINGTON, No. 41037-1
consolidated with
Respondent, 41047-8-II

v.

JONATHAN N. RODEN, OPINION PUBLISHED IN PART

Appellant.

Penoyar, J. — 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.

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.

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).

41037-1-II / 41047-8-II

FACTS

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

I. Washington’s Privacy Act

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

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) (41037-1-II) at 24; RP (Apr. 29, 2010) at 11. Posing as Lee,

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.
2

41037-1-II / 41047-8-II

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.

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.

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(1)(a), a provision of Washington’s privacy act, because he had “clearly intercepted a

private communication [that] was transmitted by a telephone without first obtaining the consent of

Mr. Roden who was one of the participants in the communication.” CP (41037-1-II) at 9.

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.

3 A “ball” is “a drug weight” equivalent to approximately 3.5 grams.
3

41037-1-II / 41047-8-II

CP (41037-1-II) at 25.

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

RCW 9.73.030(1)(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(1)(a) is generally inadmissible in a

criminal case. See RCW 9.73.050.

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, which 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).

“[W]hether 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) (quoting State v. Forrester, 21 Wn. App. 855,

4

41037-1-II / 41047-8-II

861, 587 P.2d 179 (1978) (quoting Webster’s Third New International Dictionary (1969))).

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 at 673-74. 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.

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.

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

5

41037-1-II / 41047-8-II

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.

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

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

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 non-surreptitious
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.
6

41037-1-II / 41047-8-II

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’s 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

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. See Townsend, 147 Wn.2d

676. Accordingly, Sawyer did not violate Roden’s rights under the Act.6

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.

7

41037-1-II / 41047-8-II

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

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.

I. Warrantless Search of Roden’s Vehicle

Roden next challenges his conviction for possession of heroin. He argues that an officer

violated his Washington Constitution article I, section 7 and Fourth Amendment rights by

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 was unlawful.
7 The dissent declines to follow Townsend but we view it as binding precedent. And we agree
with the Townsend court that “The 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)).
8

41037-1-II / 41047-8-II

searching a zippered bag in his car without a warrant. He asserts that the search was not

reasonably based on officer safety concerns. We disagree.

9

41037-1-II / 41047-8-II

A. The Stop

At about 9 p.m. on January 26, 2010, Washington State Patrol trooper Phillip Thoma was

patrolling an isolated area of the Westside Highway in Cowlitz County. Thoma, who was alone,

was travelling in a southbound direction. He observed Roden’s car parked on a gravel turnout on

the northbound shoulder. It was dark outside, and Roden’s vehicle did not have any lights on.

Thoma wanted “to make sure [that the occupant] was okay, wasn’t out of gas, having a

medical emergency, he didn’t need any assistance of any kind.” Report of Proceedings (RP) (Apr.

29, 2010) at 69. Thoma made a U-turn, turned on his lights as a traffic safety measure,8 and

pulled up behind Roden’s car.

Thoma exited his patrol car and approached the passenger window of the parked car.

When Thoma reached the passenger window, he observed Roden, who was in the driver’s seat,

looking out the driver’s side window. It appeared to Thoma that Roden knew of Thoma’s

presence, looking out the driver’s side window for Thoma to approach. While Roden looked out

the driver’s side window, he “had his right arm reaching back between the two front seats into the

back seat . . . making some kind of quick motions with his arm.” RP (Apr. 29, 2010) at 70.

Thoma could not see Roden’s hand or what he was reaching for.

Concerned that Roden was trying to retrieve a weapon, Thoma drew his handgun, pointed

it at Roden, and ordered Roden to put his hands up. Roden complied. Thoma asked Roden to

step slowly out of the vehicle and keep his hands in view. Thoma used his hand9 to secure

8 Roden’s car was parked on a “large sweeping curve,” and Thoma turned on his lights “to make
sure that nobody rear ended us.” RP (Apr. 29, 2010) at 69.

9 Thoma did not handcuff Roden.
10

41037-1-II / 41047-8-II

Roden’s hands behind his back. Thoma then conducted a pat-down search for weapons and

discovered two pocket knives in Roden’s left front pocket.

At the suppression hearing, Thoma testified as follows:

Q: Did [the discovery of the knives] cause you some concern?
A: Yes.
Q: And why did it cause you concern that you located these knives in his
pocket?
A: Well, he’s — he’s obviously armed, he’s got two knives. Well, while
they’re not — you know, it’s not a handgun, or anything like that, it can
still cause substantial injury to myself.
Q: Now, at this time, when you located his knives, did you know that . . .
those were the items that he was reaching for between the seats?
A: No.
Q: So, potentially, was there something else that was located there?
A: Yes.
Q: Okay. What did you do next, once you located the knives?
A: I asked him to stand in front of his vehicle while I checked the area that he
was reaching [into], to make sure he wasn’t hiding a weapon, or
attempting to retrieve a weapon.
Q: Okay. And did you search that area?
A: Yes, I did.
Q: What did you find?
A: I located a black, zippered pouch that was large enough to conceal a
weapon. I felt it, and there was some sort of hard object inside.
Q: Okay. And was that in the general location where he had been reaching?
A: Yes, it was.
Q: Okay. And — and did you look into that bag?
A: Yes, I did.
Q: What did you locate?
A: I found various items of drug paraphernalia. I believe it was three
syringes, one of them had some brown liquid inside of it; a scale; a
tourniquet; plastic baggies containing brown residue; things of that nature.

11

41037-1-II / 41047-8-II

RP (Apr. 29, 2010) at 72-73. Based on this discovery, Thoma arrested Roden, and the State

charged Roden with possession of heroin.10

Roden moved to suppress the drug-related evidence that Thoma discovered in the black

zippered pouch. He argued that Thoma did not have “an objectively reasonable concern for [his]

safety.” Clerk’s Papers (CP) (41047-8-II) at 6.

At the suppression hearing, Thoma testified consistent with the facts above. The trial

court denied Roden’s suppression motion.

The trial court entered the following conclusions of law:

1. The Trooper had an objective and reasonable concern for officer safety.

2. The Trooper took immediate action to ensure his safety.

3. His actions were reasonable and the scope of his intrusion into the vehicle was
limited to the immediate area of the vehicle where he had seen the furtive
movements.

4. Nothing in Trooper Thoma’s actions were unreasonable in the context of
officer safety and therefore the search was justifiable.

5. The motion to suppress is denied.

CP (41047-8-II) at 21.

B. Officer Safety Justified the Search

Article I, section 7 of the state constitution provides greater protection to individuals

against warrantless searches of their automobiles than the Fourth Amendment. State v. Glenn,

140 Wn. App. 627, 633, 166 P.3d 1235 (2007). This is a strict rule with narrowly construed

exceptions. Glenn, 140 Wn. App. at 633. The State bears the heavy burden of proving that a

10 A violation of RCW 69.50.4013(1); see also former RCW 69.50.204(b)(13).
12

41037-1-II / 41047-8-II

warrantless search falls within an exception. Glenn, 140 Wn. App. at 633.

One exception to the warrant requirement allows an officer, during a valid Terry11 stop, to

“make a limited search of the passenger compartment to assure a suspect person in the car does

not have access to a weapon.” State v. Kennedy, 107 Wn.2d 1, 13, 726 P.2d 445 (1986). This

protective search for officer safety is limited to areas “within the investigatee’s immediate

control.” Kennedy, 107 Wn.2d at 12. In such cases, the officer must be able to “point to ‘specific

and articulable facts’ which create an objectively reasonable belief that a suspect is ‘armed and

presently dangerous.'” State v. Glossbrener, 146 Wn.2d 670, 680, 49 P.3d 128 (2002) (quoting

State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993)). We evaluate “the entire

circumstances of the traffic stop” to determine whether the search was reasonably based on officer

safety concerns. Glossbrener, 146 Wn.2d at 679.

“[I]f a suspect [makes] a furtive movement appearing to be concealing a weapon or

contraband in the passenger compartment, a protective search is generally allowed.” State v.

Chang, 147 Wn. App. 490, 496, 195 P.3d 1008 (2008) (citing Kennedy, 107 Wn.2d at 12). In

Kennedy, a police officer signaled to the defendant to pull over his vehicle; the officer reasonably

suspected that the defendant had committed drug crimes. 107 Wn.2d at 3, 9. After the signal, the

officer observed the defendant “lean forward as if to put something under the seat.” Kennedy,

107 Wn.2d at 3. Our Supreme Court stated that the defendant’s “furtive gesture” gave the officer

“an objective suspicion that [the defendant] was secreting something under the front seat of the

car.” Kennedy, 107 Wn.2d at 11. Accordingly, the officer’s protective search for a weapon

under the front seat of the defendant’s vehicle was reasonable. Kennedy, 107 Wn.2d at 13.

11 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
13

41037-1-II / 41047-8-II

Here, the totality of the circumstances indicates that Thoma had an objectively reasonable

belief that Roden was armed and dangerous before Thoma searched the zippered bag. Thoma

observed Roden “making . . . . quick motions with his arm” while reaching into the back seat and

looking through the driver’s side window. RP (Apr. 29, 2010) at 70. Understandably, these

actions caused Thoma to be concerned that Roden was reaching for a weapon as Thoma

approached the vehicle. During the subsequent pat-down of Roden’s person — an action that

Roden does not challenge on appeal — Thoma discovered two knives in Roden’s pocket that were

capable of “caus[ing] substantial injury.” RP (Apr. 29, 2010) at 72. Even though it is undisputed

that the purpose of Thoma’s initial contact with Roden was “community caretaking or courtesy

contact to assist the occupant of the vehicle,” Roden’s furtive movements and possession of

weapons on his person justified Thoma’s limited search of the immediate area into which Roden

had reached for officer safety purposes. CP (41047-8-II) at 21.

Roden suggests that the backseat area was not in his immediate control because he “did

not have to get back in his apparently disabled car.” Appellant’s Br. at 14; Appellant’s Reply Br.

at 4. The fact that Roden was outside of the vehicle at the time of the search is not dispositive.

See, e.g., State v. Larson, 88 Wn. App. 849, 856-57, 946 P.2d 1212 (1997) (protective search of

defendant’s vehicle while defendant was outside of vehicle was reasonable because officer

stopped defendant for traffic violation and defendant would have to access vehicle compartment

to retrieve license and registration); see also Glossbrener, 146 Wn.2d at 679 (“We agree with the

reasoning in Larson and conclude that Kennedy did not limit an officer’s ability to search the

passenger compartment of a vehicle based on officer safety concerns to only situations in which

either the driver or passenger remain in the vehicle.”). Thoma testified at the suppression hearing

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41037-1-II / 41047-8-II

that he planned to allow Roden to leave without further investigation after conducting a

protective search of the area into which Roden had reached. After Thoma released Roden, he

would have been free to return to his car and retrieve any weapon before Thoma left the scene.

Therefore, concerns for Thoma’s safety justified the search and the trial court did not err in

denying Roden’s motion to suppress.

Affirmed.

Penoyar, J.

I concur:

Worswick, C.J.

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Van Deren, J. (dissenting in part) — I respectfully dissent on the majority’s opinon related

to the iPhone12 search. I would hold that Jonathan Roden did not impliedly consent to Detective

Kevin Sawyer’s search of Daniel Lee’s iPhone and that the police search of Lee’s iPhone

constituted a violation of the Washington Privacy Act (Act), chapter 9.73 RCW. Additionally,

had Roden challenged Sawyer’s search of Lee’s iPhone on constitutional grounds, I would hold

that the search violated article 1, section 7 of the Washington State Constitution and the Fourth

Amendment of the United States Constitution. Thus, the evidence gathered as a result of the

State’s unlawful intrusion should be suppressed.

I. Washington Privacy Act

The majority rests its finding that Roden impliedly consented to Sawyer’s search of Lee’s

iPhone on the fact that Roden knew that the iPhone “would record and store the text messages

that he sent to Lee.” Majority at 8. This interpretation of the Act reads out of it the protections

afforded “any device electronic or otherwise designed to record” private communications. RCW

9.73.030(1)(a). Under the Act, recordings of private communications are protected from police

searches absent the issuance of a search warrant, making Roden’s knowledge of the fact that a

text message was recorded in Lee’s iPhone irrelevant. Because the majority’s interpretation of

the Act jeopardizes or eliminates the Act’s express protections, I dissent from the finding and the

majority’s holding.

Roden does not contest his convictions based on constitutional challenges under article 1,

12 See majorityat 1 n.1.

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section 7 of our constitution or the Fourth Amendment.13 Instead, he focuses on his rights under

the statutory law contained in the Act.

The Act provides that:

[I]t shall be unlawful for . . . the state of Washington, its agencies, and political
subdivisions to intercept, or record any:
(a) Private communication transmitted by telephone, telegraph, radio, or
other device 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;
(b) Private conversations, by any device electronic or otherwise designed
to record or transmit such conversation regardless how the device is powered or
actuated without first obtaining the consent of all the persons engaged in the
conversation.

RCW 9.73.030(1) (emphasis added). Any information obtained in violation of the above sections

“shall be inadmissible in any civil or criminal case” in all courts in this state.14 RCW 9.73.050.

The Act must be read to ensure that private conversations are “protected in the face of an ever-

changing technological landscape.” State v. Christensen, 153 Wn.2d 186, 197, 102 P.3d 789

(2004). Additionally, “[I]f any textual ambiguity about the meaning of the statute lingers, it ought

to be resolved in favor of giving effect to the legislative intent of the statute,” which puts a high

value on the privacy of communications. Christensen, 153 Wn.2d at 200.

The Act clearly and expressly affords protection to private communications by telephone,

13 This appears to be a strategic decision based on Sawyer’s search of Lee’s iPhone in at least two
separate cases. See also State v. Hinton, No. 41014-1-II (Wash. Ct. App., argued Dec. 1, 2011).
Hinton challenges Sawyer’s intrusion in Lee’s iPhone under both the state and federal
constitutions. Hinton’s and Roden’s appeals were argued the same day in our court.

14 Exceptions to this rule include if the person whose rights have been violated in an action
brought for damages under RCW 9.73.030 through 9.73.080 gave permission or if the criminal
action would jeopardize national security. RCW 9.73.050.

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radio, telegraph and by any other electronic device. RCW 9.73.030(1). Our statute is one of the

most restrictive privacy acts in the nation because it requires that all parties to a private

communication consent to disclosure. Christensen, 153 Wn.2d at 198. Indeed, the Act is

forward-looking and written with a clear anticipation that technology could change, thus its use of

the phrase: “any device electronic or otherwise designed to record and/or transmit said

communication regardless how such device is powered or actuated.” RCW 9.73.030(1)(a).

II. Implied Consent Ignores Express Statutory Language

State v. Townsend, 147 Wn.2d 666, 57 P.3d 255 (2002); In re Marriage of Farr, 87 Wn.

App. 177, 940 P.2d 679 (1997); and the majority do not acknowledge that the Act protects the

communications themselves and also the recording and transmittal of those communications.

RCW 9.73.030(1). Thus, the State has been allowed to admit evidence gathered from telephone

answering machines, Farr, and e-mails, Townsend. These decisions abrogate the Act’s protection

of private communications through the judicially-created implied consent doctrine.

Reliance on implied consent overlooks the Act’s protection of written communications

and recordings and allows expansive and unregulated State searches of citizens’ phone contacts,

without probable cause, without a search warrant, and without actual consent. Under implied

consent reasoning, a police officer’s simple possession of a smartphone is sufficient to imply or

infer consent of the communicating parties. This reasoning can easily and dangerously be

extended to allow warrantless State searches of any digital device that police come to possess, all

contrary to the Act itself. Moreover, that has not been the law in Washington with regard to

other computers. See State v. Grenning, 142 Wn. App. 518, 532, 174 P.3d 706 (2008) (warrant

must specifically authorize search of computer), aff’d, 169 Wn.2d 47, 234 P.3d 169 (2010); State

18

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v. Nordlund, 113 Wn. App. 171, 182, 53 P.3d 520 (2002).

Thus, the trial court should have suppressed the evidence seized as a result of the

warrantless search of Lee’s iPhone unless one of the narrow exceptions to the warrant

requirement applied — none of which are argued here — or unless Roden gave actual consent to

State interception of his messages. Accordingly, I would reverse Roden’s conviction and would

vacate the order denying suppression of the evidence seized from Lee’s iPhone.

III. Text Messages and the Privacy Act

In the new world of digital communications, text messages are most similar to telegrams,

which are expressly protected by the Act; but text messages are even more obviously private

communications due to their direct communication between the sender and recipient. A telegram,

on the other hand, requires the sender to engage an operator of one telegraph machine who sends

electrical signals to another telegraph machine in Morse code. The receiving operator decodes

the Morse code language, types out the message, and delivers it to the intended recipient. With

telegrams, both ends of telegraphic communications include third parties who print and who read

the telegram’s contents.

Under Townsend and the majority’s analysis, the Act does not apply to telegrams because

the sender would impliedly consent to the message being recorded, printed, and easily read by

intervening parties. Yet the Act expressly protects communications transmitted by telegram.

Furthermore, Townsend and the majority’s analytic framework ignore the protections

afforded recorded communications. Inferring consent to search any recorded or printed message

is contrary to the Act’s underlying and expressed intent. The Act clearly required that if Roden

and Lee would not consent to Sawyer’s search of Lee’s iPhone and his manipulation of the iPhone

19

41037-1-II / 41047-8-II

to locate Roden’s text messages, the State would have to acquire authorization from a judge or

magistrate for the intrusion into Lee’s iPhone, a device “designed to record and/or transmit said

communication.”15 RCW 9.73.030(1)(a). Sawyer did not receive consent from either Lee or

from Roden, nor did he receive authorization from a judge or magistrate to open Lee’s iPhone

and search its contents and begin communicating with Roden.

And here, the police did more than view Roden’s communications to Lee. The record

establishes that “Sawyer spent about 5 to 10 minutes ‘looking at some of the text messages’ on

[Lee’s] iPhone; he also looked to see ‘who had been calling.'” Majority at 2 (quoting Report of

Proceedings (Apr. 29, 2010) at 9). Then, “[p]osing as Lee, Sawyer sent Z-Jon [(Roden)] a text

message reply” and engaged in a series of text messages, eventually setting up a meeting at which

Roden was arrested. Majority at 2-3.

Under these circumstances, Roden, who did not intend to communicate with Sawyer, did

not consent to Sawyer’s search of Lee’s iPhone, to Sawyer’s use of the phone, or to the use of

the iPhone communications against him in criminal proceedings. Resorting to implied consent

under the Act simply abrogates citizens’ protections from searches that violate our rigorous Act

and constitutional privacy rights

Following the majority’s analysis, any communication that has a traceable electronic or

paper trail will not be protected because consent to disclosure can be implied from the trail. This

is clearly contrary to the legislature’s intent when it created the Act, which explicitly included

15 A judge or magistrate can “approve the interception, recording, or disclosure of
communications or conversations with a nonconsenting party for a reasonable and specified
period of time, if there is probable cause to believe that the nonconsenting party has committed, is
engaged in, or is about to commit a felony.” RCW 9.73.090(2)
20

41037-1-II / 41047-8-II

protections for telegrams and any device designed to record. The legislature intended to protect

private communications regardless of how such communications were transmitted. The Act was

not intended or written so that it could be interpreted to abrogate constitutional privacy

protections or to invite its own abrogation based on implied consent when communications are

achieved utilizing a protected means of communication.

IV. The Privacy Act Does Not Abrogate Article 1, Section 7 Protections

“‘When a party claims both state and federal constitution violations, we turn first to our

state constitution.'” State v. Afana, 169 Wn.2d 169, 176, 233 P.3d 879 (2010) (quoting State v.

Patton, 167 Wn.2d 379, 385, 219 P.3d 651 (2009)). Article I, section 7 of our state constitution

states, “No person shall be disturbed in his private affairs, or his home invaded, without authority

of law.” In determining whether a search violated article I, section 7, we engage in a two-step

analysis. The first step requires us to determine whether the State has intruded into a person’s

private affairs. State v. Valdez, 167 Wn.2d 761, 772, 224 P.3d 751 (2009). “The term ‘private

affairs’ generally means ‘those privacy interests which citizens of this state have held, and should

be entitled to hold, safe from governmental trespass.'” State v. Athan, 160 Wn.2d 354, 366, 158

P.3d 27 (2007) (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). “In

determining if an interest constitutes a ‘private affair[ ],’ we look at the historical treatment of the

interest being asserted, analogous case law, and statutes and laws supporting the interest

asserted.” Athan, 160 Wn.2d at 366 (quoting Myrick, 102 Wn.2d at 511.) Townsend clearly

determined that electronic communications were private. 147 Wn.2d at 674. The Townsend

court stated:

We hold, as did the Court of Appeals, that Townsend’s communications to
the fictitious child, Amber, were private. We reach that conclusion because it is
21

41037-1-II / 41047-8-II

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 manifest by
Townsend’s message to Amber to not “tell anyone about us.” [Townsend Clerk’s
Papers] at 66. 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.

147 Wn.2d at 674.

Here, as in Townsend, it is clear that Roden intended his communications arranging an

illegal drug transaction to be private. And, as the Townsend court noted, “The mere possibility

that interception of the communication is technologically feasible does not render public a

communication that is otherwise private.” 147 Wn.2d at 674; see also State v. Faford, 128

Wn.2d 476, 486, 910 P.2d 447 (1996) (“We will not permit the mere introduction of new

communications technology to defeat the traditional expectation of privacy in telephone

conversations.”). Likewise, the possibility that another person could potentially access Lee’s

iPhone and read Lee’s text messages does not render Roden’s private communications public.

Although, by sending a text message to Lee’s iPhone, Roden risked Lee exposing his

communications to others and risked that his communications would become known to law

enforcement through a valid search pursuant to a search warrant, it does not diminish his

expectation that his text messages would not be subject to a warrantless search by government

agents. See State v. Eisfeldt, 163 Wn.2d 628, 637, 185 P.3d 580 (2008) (“[A]rticle I, section 7

protects ‘those privacy interests which citizens of this state have held, and should be entitled to

hold, safe from governmental trespass absent a warrant.'”) (emphasis added) (quoting Myrick,

102 Wn.2d at 511).

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41037-1-II / 41047-8-II

It is worth noting that most mobile phone owners are in immediate possession of their

23

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phones at all times.16 The fact these portable computer phones, as opposed to a land line

telephone, are so closely associated with an individual lends credence to the conclusion that a

sender of a text message has a privacy interest that the phone’s owner will be the immediate

recipient of the message and thus, the sender can expect that the message will remain private

absent voluntary action by the phone’s owner to disclose the contents of the text message. And,

in many respects, the user of text messages has a greater privacy interest in text messages than in

oral conversations because oral conversations can be overheard.17 In contrast to oral

conversations, text messages are insulated from the accidental or deliberate eavesdropper unless

the eavesdropper possesses the receiving phone.

While it is technically possible for every text message sent from one smartphone to

another smartphone to be tracked and viewed by people other than the recipient, this

technological ability also does not negate a text message user’s privacy interests, particularly from

the government’s unwarranted prying eye. “‘Privacy is not a discrete commodity, possessed

absolutely or not at all.'” United States v. Jones, __ U.S. __, 132 S. Ct. 945, 947, 181 L. Ed. 2d

911 (2012) (Sotomayor, J., concurring) (quoting Smith v. Maryland, 442 U.S. 735, 749, 99 S.

Ct. 2577, 61 L. Ed. 2d 220 (1979) (Marshall, J., dissenting)). As Justice Marshall so eloquently

16 Cell phones are commonly provided by employers so that employees are expected to be
checking them throughout the day. Many employers also permit cell phones to be within reach all
day so that work lines will not be tied up with personal calls. See Br. of Electronic Frontier
Foundation et. al. as Amici Curiae in Support of Resp’ts, City of Ontario, Cal. v. Quon, No. 08-
1332, 2010 WL 1063463, at *16 (U.S. Mar. 23, 2010) (Br. of EFF); see generally Katharine M.
O’Connor, Note, :o OMG They Searched My Txts: Unraveling the Search and Seizure of Text
Messages, 2010 U. of Ill. L. Rev. 685.

17 “The [text message] user seeks to exclude the communication from the uninvited ear by
avoiding speaking into the mouthpiece altogether.” O’Connor, at 713.
24

41037-1-II / 41047-8-II

stated in 1979:

[B]ut even assuming, as I do not, that individuals “typically know” that a phone
company monitors calls for internal reasons, it does not follow that they expect
this information to be made available to the public in general or the government in
particular. Privacy is not a discrete commodity, possessed absolutely or not at all.
Those who disclose certain facts to a bank or phone company for a limited
business purpose need not assume that this information will be released to other
persons for other purposes. [I]mplicit in the concept of assumption of risk is
some notion of choice. . . . [U]nless a person is prepared to forgo use of what for
many has become a personal or professional necessity, he cannot help but accept
the risk of surveillance. It is idle to speak of “assuming” risks in contexts where,
as a practical matter, individuals have no realistic alternative.

Smith, 442 U.S. at 749 (Marshall J., dissenting) (internal footnote and citations omitted).

V. The Privacy Act Does Not Abrogate the Fourth Amendment

The Supreme Court has had recent occasion to address new technology’s impact on the

foundational privacy right expressed by the Fourth Amendment. Although not directly addressing

whether individuals retain a reasonable expectation of privacy in text messages sent to third

parties, two recent United States Supreme Court cases suggest that the public has a reasonable

expectation of privacy in cell phone and text message communications.

In City of Ontario, Cal. v. Quon, __ U.S. __, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010),

the United States Supreme Court addressed an employee’s use of an employer-provided pager.

Although recognizing that the case touched “issues of farreaching significance” and discussed

“employees’ privacy expectations vis-à-vis employer provided technological equipment,” the

Court declined to address whether Quon had a reasonable expectation of privacy in his text

messages. Quon, 130 S. Ct. at 2624, 2630. Instead, the Quon Court held that, even assuming

Quon had a reasonable expectation of privacy, the search of text messages contained on his

employer-owned pager for work-related purposes was reasonable. 130 S. Ct. at 2630-31.

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However, the Quon Court strongly suggested that outside the employee-employer context, the

public would have a reasonable expectation of privacy in text message communications, noting:

Cell phone and text message communications are so pervasive that some persons
may consider them to be essential means or necessary instruments for self-
expression, even self-identification. That might strengthen the case for an
expectation of privacy [in the employee-employer context]. On the other hand, the
ubiquity of those devices has made them generally affordable, so one could counter
that employees who need cell phones or similar devices for personal matters can
purchase and pay for their own.

Quon, 130 S. Ct. at 2630.

The Quon Court also equated the search of a personal e-mail account or pager with a

wiretap of a person’s phone line. 130 S. Ct. at 2631. Thus, the Supreme Court in Quon strongly

suggested that an individual has a reasonable expectation of privacy in text messages under the

Fourth Amendment.18

18 Other courts have found that individuals have a reasonable expectation of privacy in their cell
phones and the information contained on their cell phones, including text messages. See, e.g.,
United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008) (“[C]ell phones contain a wealth of
private information, including emails, text messages, call histories, address books, and subscriber
numbers”; thus, defendant had a “reasonable expectation of privacy regarding [the cell phone’s
contents].”); United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) (A defendant had
reasonable expectation of privacy in the text messages stored on his cell phone because he had
possessory interest in the phone and took “normal precautions to maintain his privacy in the
phone.”); United States v. Davis, 787 F.Supp.2d 1165, 1170 (D.Or. 2011) (“A person has a
reasonable expectation of privacy in his or her personal cell phone, including call records and text
messages.”); United States v. Quintana, 594 F.Supp.2d 1291, 1299 (M.D. Fla. 2009) (“[A]
search warrant is required to search the contents of a cell phone unless an exception to the
warrant requirement exists.”); State v. Smith, 124 Ohio St.3d 163, 169, 920 N.E.2d 949 (2009)
(Cell phone users have “a reasonable and justifiable expectation of a higher level of privacy in the
information [cell phones] contain” because of their multifunctional uses and ability to store large
amounts of private data, including text messages.); but cf. United States v. Flores-Lopez, 670
F.3d 803 (7th Cir. 2012) (police officers may conduct a warrantless search of arrestee’s cell
phone to obtain the cell phone number).
Admittedly, these cases do not address an individual’s expectation of privacy in text
messages that are communicated to a third party. However, the Sixth Circuit Court of Appeals
has held that “the mere ability of a third-party intermediary to access the contents of a
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41037-1-II / 41047-8-II

In Jones, the Court held that the installation of a global-positioning-system (GPS) tracking

device on a vehicle registered to the respondent’s wife constituted a search. 132 S. Ct. at 946.

This opinion has been the subject of much discussion and conjecture about how the Supreme

Court will interpret the State’s use of technology to intrude on individual citizens and their

activities.19

communication cannot be sufficient to extinguish a reasonable expectation of privacy.” United
States v. Warshak¸ 631 F.3d 266, 286 (6th Cir. 2010). The Warshak court held:
A subscriber enjoys a reasonable expectation of privacy in the contents of emails
“that are stored with, or sent or received through, a commercial [Internet service
provider (ISP)].” The government may not compel a commercial ISP to turn over
the contents of a subscriber’s emails without first obtaining a warrant based on
probable cause. Therefore, because they did not obtain a warrant, the government
agents violated the Fourth Amendment when they obtained the contents of
Warshak’s emails. Moreover, to the extent that [the Stored Communications Act
(SCA), 18 U.S.C. section 2703] purports to permit the government to obtain such
emails warrantlessly, the SCA is unconstitutional.
631 F.3d at 288 (quoting Warshak v. United States, 490 F.3d 455, 473 (6th Cir. 2007)).
I would hold that the Warshak court’s rationale in establishing individuals’ reasonable
expectations of privacy in the contents of their e-mail is equally applicable to cell phone users’
expectation of privacy in the contents of their text messages. I would also extend the Warshak
court’s holding to prohibit a warrantless search by government agents of text messages sent to
and stored on a third party’s cell phone. In my view, a third party’s ability to access text
messages sent by an individual does not diminish the text message sender’s expectation of privacy
in his or her text message communications.

19 See, e.g., Tom Goldstein, Jones Confounds the Press, SCOTUSblog (Jan. 25, 2012, 11:30
AM), http://www.scotusblog.com/2012/01/jones-confounds-the-press/; Jess Bravin, Justices Rein
in Police on GPA Trackers, Wall St. J., Jan. 24, 2012, at A1, available at
http://online.wsj.com/article/SB10001424052970203806504577178811800873358.html – mod=W
SJ_hp_LEFTTopStories; Tom Goldstein, Reactions to Jones v. United States: The Government
Fared Much Better than Everyone Realizes, SCOTUSblog (Jan. 23, 2012, 4:07 PM),
http://www.scotusblog.com/2012/01/reactions-to-jones-v-united-states-the-government-fared-
much-better-than-everyone-realizes/; Orin Kerr, What’s the Status of the Mosaic Theory after
Jones, The Volokh Conspiracy (Jan. 23, 2012, 1:59 PM), http://volokh.com/2012/01/23/whats-
the-status-of-the-mosaic-theory-after-jones/; Lyle Denniston, Opinion Recap: Tight Limit on
Police GPS Use, SCOTUSblog (Jan. 23, 2012, 11:58 AM),
http://www.scotusblog.com/2012/01/opinion-recap-tight-limit-on-police-gps-use/.
27

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The majority opinion in Jones authored by Justice Scalia first denied the government’s

contention that no search had occurred since Jones had “no reasonable expectation of privacy” in

his vehicle’s locations on the public roads, which were visible to all. Jones, 132 S. Ct. at 957.

The denial of this contention was partially based on the fact that the officers in the case “‘did

more than conduct a visual inspection of respondent’s vehicle.’ By attaching the device to the

Jeep, officers encroached on a protected area.” Jones, 132 S. Ct. at 952 (quoting Br. of U.S.,

2011 WL 3561881, at *41). The Court has previously recognized that “[p]hysically invasive

inspection is simply more intrusive than purely visual inspection.” Bond v. United States, 529

U.S. 334, 337, 120 S. Ct. 1462, 146 L. Ed. 2d 365 (2000).

Similarly here, Sawyer did more than conduct a visual inspection of Lee’s iPhone. As

anyone who has seen or used an iPhone knows, looking at text messages and looking to see who

has been calling an iPhone requires that the person search the iPhone’s list of contacts and

messages, as the record reflects happened here. Sawyer engaged in an invasive inspection and

then engaged Roden in conversation while posing as Lee.

Justice Sotomayor, in her concurring opinion in Jones, emphasized the privacy concerns

that new technologies force courts to confront:

More fundamentally, it may be necessary to reconsider the premise that an
individual has no reasonable expectation of privacy in information voluntarily
disclosed to third parties. E.g., Smith, 442 U.S. at 742 . . . ; United States v.
Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976). This approach
is ill suited to the digital age, in which people reveal a great deal of information
about themselves to third parties in the course of carrying out mundane tasks.
People disclose the phone numbers that they dial or text to their cellular providers;
the [uniform resource locator]s that they visit and the e-mail addresses with which
they correspond to their Internet service providers; and the books, groceries, and
medications they purchase to online retailers. Perhaps, as Justice ALITO notes,
some people may find the “tradeoff” of privacy for convenience “worthwhile,” or
come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for
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41037-1-II / 41047-8-II

one doubt that people would accept without complaint the warrantless disclosure
to the Government of a list of every Web site they had visited in the last week, or
month, or year. But whatever the societal expectations, they can attain
constitutionally protected status only if our Fourth Amendment jurisprudence
ceases to treat secrecy as a prerequisite for privacy. I would not assume that all
information voluntarily disclosed to some member of the public for a limited
purpose is, for that reason alone, disentitled to Fourth Amendment protection.

132 S. Ct. at 957.

I agree with Justice Sotomayer and would hold that such information should not be

disentitled to state constitutional protection either. I would hold under both article 1, section 7

and the Fourth Amendment that the State violated Roden’s privacy rights and that the fruit of the

illegal search of Lee’s iPhone should have been suppressed.

VI. The Prevalence of Text Messages Requires a New Look at Privacy Protections

Holding that Roden consented to Sawyer recording his text messages to Lee simply fails

to take into account evolving notions of privacy in a society increasingly reliant on electronic

forms of communication. For example, in Quon, amici curiae in support of respondent Quon

presented statistical data on the prevalence of electronic forms of communication to support the

argument that society recognizes an expectation of privacy in text messages. The amicus brief

states:

A 2009 survey found that 85% of adults owned a mobile phone. Approximately
nine out of ten adults use a mobile phone and one in seven adults owns only a
mobile phone. Furthermore, 14.5% of American homes received “all or almost all”
calls on wireless telephones, even if there also was a landline telephone in the
house. Stephen J. Blumberg & Julian Luke, Wireless Substitution: Early Release
of Estimates From the National Health Interview Survey, CDC National Center
for Health Statistics, July-December 2008, http:// tiny.cc/cdcnihstats.
. . . .
Texting, along with the related services for transmitting photos and videos
between phones, has become an extremely popular form of communication, with
an average of 4.1 billion text messages sent and received in the nation each day.
Many Americans today use text messages to convey information that
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41037-1-II / 41047-8-II

formerly would have been the subject of an oral telephone conversation.
According to a 2008 Nielson Mobile survey, U.S. mobile subscribers “sent and
received on average 357 text messages per month [in the second quarter of 2008],
compared with making and receiving 204 phone calls a month. Marguerite
Reardon, Americans Text More Than They Talk, CNET, Sept. 22, 2008,
http://tiny.cc/CNET.

Br. of Electronic Frontier Foundation et. al. as Amici Curiae in Support of Resp’ts, Quon, No. 08-

1332, 2010 WL 1063463, at *6-8 (U.S. Mar. 23, 2010) (Br. of EFF) (internal footnotes omitted

and one citation omitted).

Statistical data on the prevalence of electronic communications clearly demonstrate that

the sending and receiving of text messages on a cell phone, “texting,”20 has become the

predominant form of communication.21 And American teen-agers, in particular, engage in

substantially more text messages per day than phone calls, and certainly more than letters.22 This

emerging data establishes, and courts cannot ignore, a clear shift in Americans’ private

communications from older forms of postal mail, telephone and face-to-face conversations to text

and e-mail messages generated and stored on smartphones. Br. of EFF, 2010 WL 10633463, at

*10; see generally Katharine M. O’Connor, Note, :o OMG They Searched My Txts: Unraveling

the Search and Seizure of Text Messages, 2010 U. of Ill. L. Rev. 685, 687-88.

Courts must analyze these new forms of communication within the context of our

20 Text messaging, also known as short message service (SMS ) or “texting,” uses cell phones or
pagers to send and receive electronic written messages.

21 Text message use is expected to continue to surge. “One study estimated that there were 5
trillion SMS texts sent worldwide in 2009 and that there will be more than 10 trillion SMS texts
sent worldwide in 2013.” Br. of EFF, 2010 WL 10633463, at *9.
22 One study found that American teen-agers sent an average of 3,146 texts per month. Br. of
EFF, 2010 WL 10633463, at *9.

30

41037-1-II / 41047-8-II

society’s evolving and existing expectations of privacy.23 As the Supreme Court recognized in

Quon, “Rapid changes in the dynamics of communication and information transmission are

evident not just in the technology itself but in what society accepts as proper behavior.” 130 S.

Ct. at 2629; see also United States v. Warshak, 631 F.3d 266, 285 (6th Cir. 2010) (“[T]he Fourth

Amendment must keep pace with the inexorable march of technological progress, or its

guarantees will wither and perish.”) (citing Kyllo v. United States, 533 U.S. 27, 34, 121 S. Ct.

2039, 150 L. Ed. 2d 94 (2001)).

Never would our constitutional framers have anticipated that technology would expose

citizens to nonconsensual and unexamined State intrusion into their private affairs. Recognizing

the prevalence of individual electronic communication on handheld computers, i.e., smartphones,

and society’s evolving notions of privacy in those communications, I would hold that the officer’s

warrantless search of Lee’s iPhone to obtain Roden’s text messages and his address violated

Roden’s privacy interests absent an exception to the warrant requirement.

Broadly interpreted, the majority’s holding provides that all citizens of this state consent

to police intrusion of their cell phone communications and that they have no expectation of

privacy in any form of electronic communication under either the Privacy Act, or our state or

federal constitution. That holding undermines every individual’s legitimate privacy interests in

communications afforded by evolving and existing technology.24

23 Well established case law under the Fourth Amendment provides that a sender of a letter or
other sealed package has a reasonable, and legitimate, expectation of privacy in those articles until
they are delivered to the recipient. See, e.g., United States v. Jacobsen, 466 U.S. 109, 114, 104
S. Ct. 1652, 80 L. Ed. 2d 85 (1984). This doctrine is unworkable in the electronic
communication context because electronic messages are delivered nearly instantaneously and thus,
would leave the sender of electronic communications with no expectation of privacy.

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Accordingly, I dissent.

_____________________________
Van Deren, J.

24 Should this be the law in Washington, every cell phone user — including youth who tend to use
these phones without discretion — should necessarily be warned that the State may search their or
their friends’ cell phones without a legally issued search warrant based on probable cause. This
result cannot help but offend constitutional notions of individual protections from unwarranted
State intrusion into private affairs.


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