State v. Hinton

• Decision Date: 27 February 2014
• Docket Number: No. 87663–1.,87663–1.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Shawn Daniel HINTON, Appellant.

179 Wash.2d 862
319 P.3d 9

STATE of Washington, Respondent,
v.
Shawn Daniel HINTON, Appellant.

No. 87663–1.

Supreme Court of Washington,
En Banc.

Feb. 27, 2014.

[319 P.3d 10]

John A. Hays, Attorney at Law, Longview, 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 Curiae on behalf of Washington Association of Prosecuting Attorneys.

Sarah A. Dunne, ACLU of Washington Foundation, Nancy Lynn Talner, Douglas B. Klunder, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of ACLU.

Rabi Lahiri, AEON Law, Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

Travis Stearns, Washington Defender Association, Seattle, WA, Amicus Curiae on behalf of Washington Defender Association.

Venkat Balasubramani, Focal PLLC, Seattle, WA, Hanni M. Fakhoury, San Francisco, CA, Amicus Curiae on behalf of Electronic Frontier Foundation.

[319 P.3d 11]

GONZÁLEZ, J.

¶ 1 We consider whether a text message conversation was “a private affair[ ]” protected from a warrantless search by article I, section 7 of our state constitution. A police detective read text messages on a cell phone police seized from Daniel Lee, who had been arrested for possession of heroin. Among other things, the detective read an incoming text message from Shawn Hinton, responded to it posing as Lee, and arranged a drug deal. Hinton was consequently arrested and charged with attempted possession of heroin. Hinton contends that the detective's conduct violated his rights under article I, section 7 and the Fourth Amendment.

¶ 2 We agree that Hinton's text message conversation was a private affair protected by the state constitution from warrantless intrusion. We reverse both the Court of Appeals' decision and Hinton's conviction.

Background

¶ 3 City of 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. Detective Sawyer looked through the iPhone for about 5 or 10 minutes and saw a text message from a contact identified as “Z–Jon.” 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 to sell him heroin. When Jonathan Roden arrived for the transaction, he was arrested.¹

¶ 4 Detective Sawyer booked Roden into jail and heard the iPhone signal receipt of a new text message. Detective Sawyer read the text message from “Z–Shawn Hinton,” which read, “ ‘Hey, what's up dog? Can you call me? I need to talk to you.’ ” Verbatim Report of Proceedings (Apr. 29, 2010) at 22, 13. Sawyer again posed as Lee, responded to the message, arranged another drug transaction, and arrested Hinton when he arrived at the meeting location.

¶ 5 Hinton was charged with attempted possession of heroin. He moved to suppress the evidence obtained from the iPhone, arguing that the detective's conduct violated article I, section 7 of the Washington State Constitution, the Fourth Amendment to the United States Constitution, and the Washington privacy act. The trial court denied the suppression motion and found Hinton guilty on stipulated facts. Hinton appealed and argued the constitutional issues. The Court of Appeals affirmed. State v. Hinton, 169 Wash.App. 28, 280 P.3d 476 (2012). We granted Hinton's petition for review to decide whether the detective's conduct violated the state or federal constitutions. State v. Hinton, 175 Wash.2d 1022, 291 P.3d 253 (2012).

Standard of Review

¶ 6 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

¶ 7 Whether individuals have an expectation of privacy in the content of their text messages under state law is an issue of first impression in Washington. Similarly, whether federal law protects the content of text messages has not been settled in federal courts. In City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010), the United States Supreme Court assumed, without deciding, that citizens do have a reasonable expectation of privacy in their text messages, but upheld a police department's review of an officer's text messages as reasonable under the Fourth Amendment. Several lower courts have held that people have an expectation of privacy under the Fourth Amendment in the content stored on their cell phones, including text messages. See United States v. Zavala, 541 F.3d 562, 577 (5th Cir.2008); United States v. Finley, 477 F.3d 250, 259 (5th Cir.2007); United States v. Davis, 787 F.Supp.2d 1165, 1170 (D.Or.2011);

[319 P.3d 12]

United States v. Quintana, 594 F.Supp.2d 1291, 1299 (M.D.Fla.2009). Other courts have found a privacy interest in text messages stored by a service provider. See Missouri v. Clampitt, 364 S.W.3d 605, 611 (Mo.Ct.App.2012); State v. Bone, 12–KA–34 (La.App. 5 Cir. 09/11/12), 107 So.3d 49, 63–67. Fewer courts have addressed the privacy interests of a sender when police access a sender's text messages on a recipient's device. Compare State v. Patino, No. P1–10–1155A, slip op. (R.I. Super. Ct. Sept. 4, 2012) (finding sender had reasonable expectation of privacy in sent text messages accessed by police during search of recipient's cell phone), with Fetsch v. City of Roseburg, 2012 WL 6742665 (D.Or. Dec. 31, 2012) (finding sender had no reasonable expectation of privacy in text messages once sent to a third party). We do not reach the Fourth Amendment inquiry as we resolve this case under our state constitution, which “ ‘clearly recognizes an individual's right to privacy with no express limitations'.” State v. Young, 123 Wash.2d 173, 180, 867 P.2d 593 (1994) (quoting State v. Simpson, 95 Wash.2d 170, 178, 622 P.2d 1199 (1980)).

¶ 8 When presented with arguments under both the state and federal constitutions, we start with the state constitution. State v. Athan, 160 Wash.2d 354, 365, 158 P.3d 27 (2007) (citing State v. Carter, 151 Wash.2d 118, 125, 85 P.3d 887 (2004)). It is well established that article I, section 7 is qualitatively different from the Fourth Amendment and provides greater protections. Id.;State v. O'Neill, 148 Wash.2d 564, 584, 62 P.3d 489 (2003); State v. Jackson, 150 Wash.2d 251, 259, 76 P.3d 217 (2003); see also State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986). Article I, section 7 “is grounded in a broad right to privacy” and protects citizens from governmental intrusion into their private affairs without the authority of law. State v. Chacon Arreola, 176 Wash.2d 284, 291, 290 P.3d 983 (2012) (citing State v. Buelna Valdez, 167 Wash.2d 761, 772, 224 P.3d 751 (2009)).

¶ 9 The private affairs inquiry is broader than the Fourth Amendment's reasonable expectation of privacy inquiry. Young, 123 Wash.2d at 181, 867 P.2d 593. Under the Fourth Amendment, a search occurs if the government intrudes upon a subjective and reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351–52, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Under article I, section 7 a search occurs when the government disturbs “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984) (emphasis added). The “authority of law” required by article I, section 7 is a valid warrant unless the State shows that a search or seizure falls within one of the jealously guarded and carefully drawn exceptions to the warrant requirement. State v. Miles, 160 Wash.2d 236, 244, 156 P.3d 864 (2007); State v. Rife, 133 Wash.2d 140, 150–51, 943 P.2d 266 (1997). Here, the State does not argue that there was an exception but rather that the text message communications were not “private affairs” under our constitution.

¶ 10 To determine whether governmental conduct intrudes on a private affair, we look at the “nature and extent of the information which may be obtained as a result of the government conduct” and at the historical treatment of the interest asserted. Miles, 160 Wash.2d at 244, 156 P.3d 864 (citing State v. McKinney, 148 Wash.2d 20, 29, 60 P.3d 46 (2002)); see also, e.g., State v. Jorden, 160 Wash.2d 121, 156 P.3d 893 (2007) (finding random, suspicionless searches of a motel guest registry unconstitutional because those searches may provide “ ‘intimate details about a person's activities and associations' ” (quoting McKinney, 148 Wash.2d at 30 n. 2, 60 P.3d 46)); McKinney, 148 Wash.2d at 30, 60 P.3d 46 (finding no privacy interest in department of licensing records because they do not “reveal intimate details of the defendants' lives, their activities, or the identity of their friends or political and business associates”).²

[319 P.3d 13]

¶ 11 Viewing the contents of people's text messages exposes a “wealth of detail about [a person's] familial, political, professional, religious, and sexual associations.” United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 955, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring) (discussing GPS (global positioning system) monitoring). Text messages can encompass the same intimate subjects as phone calls, sealed letters, and other traditional forms of communication that have historically been strongly protected under Washington law. Although text message technology rendered Hinton's communication to Lee more vulnerable to invasion, technological advancements do not extinguish privacy interests that Washington citizens are entitled to hold. The right to privacy under the state constitution is not confined to “a ‘protected...