The Lawletter Vol 39 No 2
In the case of City of Ontario v. Quon, 560 U.S. 746 (2010), a police officer filed a civil rights action after his superiors disciplined him based on what they had discovered after searching the content of the texts on the wireless communication device that the police department had issued to him. The U.S. Supreme Court assumed, without deciding, that citizens have a reasonable expectation of privacy in their cell phone text messages. Even so, the Quon Court held that the police department's review of the officer's text messages was reasonable under the Fourth Amendment because it had been motivated by a legitimate work-related purpose and it had not been excessive in scope.
Since that time, lower courts around the country have reached different conclusions in cases involving police searches of cell phones belonging to criminal defendants. Most recently, in State v. Hinton, No. 87663-1, 2014 WL 766680 (Wash. Feb. 27, 2014), the Washington Supreme Court held that under its state constitution, it was improper for a police detective to read text messages on an arrestee's cell phone and to then use the cell phone to respond to a text message from the defendant and arrange a drug deal with the defendant. The court noted that the Washington Constitution clearly recognizes an individual's right to privacy with no express limitations and found that the detective's conduct invaded the defendant's private affairs and was not justified by authority of law.The court supported its conclusion by finding that text messages can encompass the same intimate details as can sealed letters and other t traditional forms of communication that have historically been strongly protected under Washington law. Further, the court held that subjecting a text communication to the possibility of exposure on someone else's phone does not extinguish the sender's privacy interest in its contents.