State v. Clampitt

• Decision Date: 28 February 2012
• Docket Number: No. WD 73943.,WD 73943.
• Citation: 364 S.W.3d 605
• Parties: STATE of Missouri, Appellant, v. James Arthur CLAMPITT, Respondent.
• Court: Missouri Court of Appeals

364 S.W.3d 605

STATE of Missouri, Appellant,

v.James Arthur CLAMPITT, Respondent.

No. WD 73943.

Missouri Court of Appeals, Western District.

Jan. 24, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 28, 2012.

Application for Transfer

Denied May 29, 2012.

Shaun J. Mackelprang, for Appellant.

Ryan Bertels, for Respondent.

Before Division Four: LISA WHITE HARDWICK, Chief Judge, JOSEPH M. ELLIS, Judge and JAMES WILLIAMS, Special Judge.

JOSEPH M. ELLIS, Judge.

The State of Missouri appeals from a judgment entered by the Circuit Court of Chariton County granting James Clampitt's motion to suppress the text message content and detail for incoming and outgoing text messages from his cell phone that the State obtained from U.S. Cellular by use of four investigative subpoenas. For the following reasons, the judgment is affirmed.

On July 30, 2010, the State charged James Clampitt with first-degree involuntary manslaughter, § 565.024, RSMo Cum.Supp.2008, and leaving the scene of a motor vehicle accident, § 577.060.¹ The charges arose out of an automobile accident that occurred on June 13, 2010, in Audrain County, Missouri.² On February 9, 2011, Clampitt filed a motion to suppress “[a]ll evidence obtained through or from the search and seizure of [his] cell phone and cell phone records.” The State had obtained such information from U.S. Cellular through the use of four investigative subpoenas issued in June and July of 2010.

The first investigative subpoena was issued on June 18, 2010, and requested U.S. Cellular provide the State with tower location information for Audrain County as well as “text message content and detail for incoming and outgoing text messages” for the number 573–473–8364 “for June 13, 2010 through present.” The second investigative subpoena was also issued on June 18, 2010, and requested that U.S. Cellular provide the “text message content and detail for incoming and outgoing text messages for any and all phone numbers underthe account” of number 573–473–2599 “for June 13, 2010 through present.”

The third investigative subpoena was issued on June 24, 2010, and requested U.S. Cellular provide the State with all subscriber information for incoming and outgoing calls, including an “itemized statement of incoming and outgoing calls and text messages, and [n]ame, contact information and billing address of subscriber for” the numbers 573–721–1917 and 573–253–8040 “for June 13, 2010 through present.” The fourth investigative subpoena was issued on July 1, 2010 and requested U.S. Cellular provide “text message content and detail for incoming and outgoing text messages” for the number 573–473–2599 “for June 24, 2010 through present.”

At a hearing conducted on the motion, the Special Prosecutor originally assigned to investigate Clampitt's case testified that she requested Clampitt's incoming and outgoing text messages beyond the twenty-four-hour period surrounding the accident in hopes of obtaining an admission from Clampitt that either he or a member of his family was driving the vehicle at the time of the accident. The Special Prosecutor also testified that she did not seek a warrant because she believed the text messages “were records that were in possession of a third party” and that the investigative subpoenas were a sufficient means for obtaining such information from third parties.

On May 18, 2011, the trial court granted Clampitt's motion to suppress, finding Clampitt had a reasonable expectation of privacy in the text messages, the investigative subpoenas used to obtain the text messages were unreasonable, and that the good faith exception to the exclusionary rule did not apply to prosecutors. The State's notice of appeal was timely filed.

In its first point on appeal, the State asserts the trial court erred in sustaining Clampitt's motion to suppress the content of his text messages because he had no reasonable expectation of privacy in the content of his text messages and therefore lacked standing to challenge the search and seizure of his cell phone records.

“A trial court's ruling on a motion to suppress will be reversed on appeal only if it is clearly erroneous.” State v. Williams, 334 S.W.3d 177, 179 (Mo.App. W.D.2011) (internal quotation omitted). This court “consider[s] the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling on a motion to suppress.” State v. Allison, 326 S.W.3d 81, 87 (Mo.App. W.D.2010) (internal quotation omitted). “We review the facts and inferences therefrom in the light most favorable to the trial court's ruling, and disregard all contrary inferences.” State v. Nelson, 334 S.W.3d 189, 193 (Mo.App. W.D.2011) (internal quotation omitted). However, “[w]hether conduct violates the Fourth Amendment is an issue of law that this court reviews de novo.” State v. Schroeder, 330 S.W.3d 468, 472 (Mo. banc 2011).

In Missouri, a motion to suppress can be brought on grounds that an illegal search and seizure occurred and thereby violated the Fourth Amendment rights of the movant. § 542.296.5(5); State v. Snow, 299 S.W.3d 710, 713–14 (Mo.App. W.D.2009). The Fourth Amendment to the United States Constitution guarantees citizens the right to be free from unreasonable searches and seizures. ³ U.S. Const. amend. IV; State v. Loyd, 338 S.W.3d 863, 865 (Mo.App. W.D.2011). “Subject to only a few specific and well-delineated exceptions, warrantless searches and seizures are deemed per se unreasonable.” State v. Johnson, 316 S.W.3d 390, 395 (Mo.App. W.D.2010).

The State contends it did not violate Clampitt's Fourth Amendment rights because Clampitt had no reasonable expectation of privacy in his text messaging records and thereby lacked standing to challenge the State obtaining such records by use of investigative subpoena. “In order for a defendant to have standing to assert a violation of his Fourth Amendment rights, the defendant must have a legitimate expectation of privacy in the place or thing searched.” State v. Gabbert, 213 S.W.3d 713, 718 (Mo.App. W.D.2007). “Whether a person has a reasonable expectation of privacy depends on a two-part inquiry, ‘first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.’ ” State v. Bates, 344 S.W.3d 783, 787 (Mo.App. S.D.2011) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). “The court uses concepts of property law and societal standards to determine the reasonableness of the defendant's expectation” of privacy. Snow, 299 S.W.3d at 714.

The trial court relied on City of Ontario v. Quon, ––– U.S. ––––, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010), for the proposition that people have a reasonable expectation of privacy in their text messages. But as the State points out, and Clampitt concedes, the Court in Quon was dealing with an employee's use of an employer provided pager. Id. at 2624. While the Court recognized that the case touched “issues of farreaching significance,” id., and discussed at some length “employees' privacy expectations vis-à-vis employer provided technological equipment,” id. at 2630, the Court declined to set constitutional parameters and disposed of the case on narrower grounds. Nevertheless, in discussing those employee-employer issues, the Court strongly suggested that outside the employee-employer context, the public would have a reasonable expectation of privacy in cell phone and text message communications. For instance, the Court noted:

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.

Id. The Court later equated the search of a personal e-mail account or pager with a wiretap of a person's phone line. Id. at 2631. (“[T]he audit of messages on Quon's employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been.”). Thus, it is clear the Court is saying that, outside the workplace and employer-provided technological equipment, a person has a reasonable expectation of privacy with regard to cell phone and text message communications on or via privately owned equipment.

Consistent with the Court's intimation in Quon, other courts have found that individuals have a reasonable expectation of privacy in their cell phones and the information stored therein, including text messages. See, e.g., United States v. Zavala, 541 F.3d 562, 577 (5th Cir.2008) (finding “cell 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 such information”); United States v. Finley, 477 F.3d 250, 259 (5th Cir.2007) (concluding defendant had a reasonable expectation of privacy in the call record and text messages on his cell phone because he had a 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) (finding “[a] person has a reasonable expectation of privacy in his or her personal cell phone, including call records and text messages”); United States v. Gomez, 807 F.Supp.2d 1134, 1141 (S.D.Fla.2011) (finding defendant had a reasonable expectation of privacy in his cell phone because “the weight of authority agrees that accessing a cell...