State v. Roden

179 Wash.2d 893

321 P.3d 1183

STATE of Washington, Respondent,

v.Jonathan Nicholas RODEN, Appellant.

No. 87669–0.

Supreme Court of Washington, En Banc.

Argued May 7, 2013.

Decided Feb. 27, 2014.

Valerie Marushige, Attorney at Law, Kent, WA, for Petitioner.

Sean M. Brittain, Cowlitz Co. Prosecutors Office, Hall of Justice, Kelso, WA, for Respondent.

Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, Susan K. Storey King County Prosecutor's Office, Seattle, WA, amicus counsel for Washington Association of Prosecuting Attorneys.

Sarah A. Dunne, ACLU of Washington Foundation, Nancy Lynn Talner, Attorney at Law, Douglas B. Klunder, Attorney at Law, Seattle, WA, amicus counsel for Aclu.

Travis Stearns, Washington Defender Association, Seattle, WA, amicus counsel for Washington Defender Association.

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.

Hanni M. Fakhoury, Electronic Frontier Foundation, San Francisco, CA, Venkat Balasubramani, Focal PLLC, Seattle, WA, amicus counsel for Electronic Frontier Foundation.

GONZÁLEZ, J.

¶ 1 We are asked to decide whether Washington's privacy act protects text messages intercepted by a detective who possessed the intended recipient's cell phone after a warrantless seizure. A police detective spent 5 to 10 minutes browsing through a cell phone officers took from Daniel Lee incident to his arrest for possession of heroin. The detective noticed several text messages from Jonathan Roden, responded to Roden with a new text message, and arranged a drug deal. Roden was consequently arrested. Roden contends that the detective's conduct violated the privacy act and the state and federal constitutions.

¶ 2 We agree that Washington's privacy act was violated because a detective intercepted private communications without Lee's or Roden's consent or a warrant. We reverse the Court of Appeals' decision and Roden's conviction.

Background

¶ 3 Longview police arrested Lee for possession of heroin and seized his iPhone. The iPhone, which continually received calls and messages at the police station, was handed over to Detective Kevin Sawyer when he started his shift that evening. The police apparently did not place the phone in an evidence or inventory locker or otherwise secure it after Lee's arrest. The record does not indicate how long officers kept possession of the phone before giving it to Detective Sawyer.

¶ 4 Detective Sawyer looked through the iPhone for about 5 or 10 minutes and saw a text message from a contact identified as “Z–Jon.” It read, “I've got a hundred and thirty for the one-sixty I owe you from last night.” Verbatim Report of Proceedings (VRP) (Apr. 29, 2010) at 11. Posing as Lee, Sawyer sent Z–Jon a text message reply, asking him if he “needed more.” Id. Z–Jon responded, “Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I'm only payin' one eighty for it, instead of two Ts for two hundred.” Id. Detective Sawyer recognized that Z–Jon was using drug terminology, and through a series of exchanged messages, Detective Sawyer arranged a meeting with Z–Jon purportedly to sell him heroin. When Roden arrived for the transaction, he was arrested.

¶ 5 Roden was charged with attempted possession of heroin. Roden moved to suppress the evidence obtained from the iPhone, claiming the evidence was obtained in violation of article I, section 7 of the Washington State Constitution, the privacy act, and the Fourth Amendment to the United States Constitution. The trial court denied the suppression motion and found Roden guilty on stipulated facts.

¶ 6 On appeal, Roden argued that the detective's conduct violated the privacy act. The Court of Appeals affirmed. State v. Roden, 169 Wash.App. 59, 279 P.3d 461 (2012), and Roden petitioned this court for review under both the privacy act and the state and federal constitutions. We accepted review. State v. Roden, 175 Wash.2d 1022, 291 P.3d 253 (2012).

Standard of Review

¶ 7 This court reviews a trial court's legal conclusions on a motion to suppress de novo. State v. Schultz, 170 Wash.2d 746, 753, 248 P.3d 484 (2011) (citing State v. Smith, 165 Wash.2d 511, 516, 199 P.3d 386 (2009)).

Analysis

¶ 8 Washington's privacy act broadly protects individuals' privacy rights. See ch. 9.73 RCW; State v. Williams, 94 Wash.2d 531, 548, 617 P.2d 1012 (1980). It is one of the most restrictive electronic surveillance laws ever promulgated. State v. Faford, 128 Wash.2d 476, 481, 910 P.2d 447 (1996) (citing State v. O'Neill, 103 Wash.2d 853, 878, 700 P.2d 711 (1985) (Dore, J., concurring in part, dissenting in part)). The act prohibits anyone not operating under a court order from intercepting or recording certain communications without the consent of all parties. RCW 9.73.030, .040, .090(2). Overall, the act “significantly expands the minimum standardsof the federal statute[, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520,] and offers a greater degree of protection to Washington citizens.” O'Neill, 103 Wash.2d at 879, 700 P.2d 711 (Dore, J. concurring in part, dissenting in part).

¶ 9 The act states:

[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.

RCW 9.73.030(1).¹ Evidence obtained in violation of the act is inadmissible for any purpose at trial. RCW 9.73.050.

¶ 10 There are four prongs we consider when analyzing alleged violations of the privacy act. There must have been (1) a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication. State v. Christensen, 153 Wash.2d 186, 192, 102 P.3d 789 (2004) (citing RCW 9.73.030). At issue here is whether the text messages were “private communications” and if so, whether they were “intercepted” within the meaning of the statute. We answer both questions affirmatively and do not reach Roden's constitutional arguments. ²

A. Whether the Text Messages Were Private Communications

¶ 11 The act does not define the word “private,” but we have 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.’ ” State v. Townsend, 147 Wash.2d 666, 673, 57 P.3d 255 (2002) internal quotation marks omitted) (quoting Kadoranian v. Bellingham Police Dep't, 119 Wash.2d 178, 190, 829 P.2d 1061 (1992)). The question of whether 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. Id. (citing State v. Clark, 129 Wash.2d 211, 225, 916 P.2d 384 (1996)). In determining whether a communication is private, we consider the subjective intention of the parties and may also consider other factors that bear on the reasonableness of the participants' expectations, such as the duration and subject matter of the communication, the location of the communication, and the presence of potential third parties. Id. at 673–74, 57 P.3d 255 (citing Clark, 129 Wash.2d at 225–27, 916 P.2d 384). We will generally presume that conversations between two parties are intended to be private. State v. Modica, 164 Wash.2d 83, 89, 186 P.3d 1062 (2008).

¶ 12 Roden's messages to Lee were private communications. Text messages encompass many of the same subjects as phone conversations and e-mails, which have been protected under the act. See Faford, 128 Wash.2d at 488, 910 P.2d 447;Christensen, 153 Wash.2d at 200–01, 102 P.3d 789;Townsend, 147 Wash.2d at 680, 57 P.3d 255. Rodenmanifested his subjective intent that the text messages would remain private by sending them to the cell phone of a personal contact. Roden did not use a group texting function, which enables text messages to be exchanged between multiple parties, or indicate in any other manner that he intended to expose his communications to anyone other than Lee. See VRP (Apr. 29, 2010) at 25. Moreover, the illicit subject matter of Roden's text messages indicates that he trusted the communication was secure and private.

¶ 13 We reject the State's argument that a subjective expectation of privacy in a text message conversation is unreasonable because of the possibility that someone could intercept text messages by possessing another person's cell phone. In the context of new communications technology, we have continually held that the mere possibility of intrusion will not strip citizens of their privacy rights. Faford, 128 Wash.2d at 485, 910 P.2d 447 (citing State v. Young, 123 Wash.2d 173, 186, 867 P.2d 593 (1994); State v. Myrick, 102 Wash.2d 506, 513–14, 688 P.2d 151 (1984)); see also Townsend, 147 Wash.2d at 678, 57 P.3d 255.

¶ 14 Sophisticated text messaging technology enables “[l]ayered interpersonal communication[s]” that reveal “intimate ... thoughts and emotions to those who are expected to guard them from publication.” State v. Patino, No. P1–10–1155A, slip op. at 83, 70, 2012 WL 3886269 (R.I.Super.Ct. Sept. 4, 2012). Text messaging is an increasingly prevalent mode of communication and text messages are raw and immediate communications. State v. Hinton, 179 Wash.2d 862, ––––, 319 P.3d 9 (2014). Individuals closely associate with and identify themselves by their cell phone numbers, such that...