State v. Hinton, No. 41014–1–II.

CourtCourt of Appeals of Washington
Writing for the CourtPENOYAR
Citation169 Wash.App. 28,280 P.3d 476
PartiesSTATE of Washington, Respondent, v. Shawn D. HINTON, Appellant.
Docket NumberNo. 41014–1–II.
Decision Date26 June 2012

169 Wash.App. 28
280 P.3d 476

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

No. 41014–1–II.

Court of Appeals of Washington,
Division 2.

June 26, 2012.


[280 P.3d 477]


John A. Hays, Attorney at Law, Longview, WA, for Appellant.

Sean M Brittain, Cowlitz Co. Prosecutor's Office, Kelso, WA, for Respondent.


PENOYAR, J.

[169 Wash.App. 31]¶ 1 A police detective acquired the iPhone 1 of a suspected drug dealer. While the phone was in the detective's possession, a text message from Shawn Hinton appeared on the iPhone's screen, asking the dealer to call Hinton. Posing as the dealer, the detective replied to Hinton's text message. The two men proceeded to exchange several text messages, eventually arranging a drug transaction, which led to Hinton's conviction for attempted possession of heroin. Hinton appeals Ms conviction, arguing that the detective violated article I, section 7 of the state constitution and the Fourth Amendment to the federal constitution when he used the dealer's iPhone to read and to reply to text messages that Hinton sent to the dealer. Because neither article I, section 7 of the Washington Constitution nor the Fourth Amendment to the United States Constitution protect Hinton's text messages on the recipient's iPhone, we affirm.

FACTS

¶ 2 On November 3, 2009, when Detective Kevin Sawyer arrived to begin his shift, several officers gave Sawyer an iPhone they had

[280 P.3d 478]

seized from Daniel Lee, who had been arrested earlier that day on drug charges.2 At one point while Sawyer had the iPhone in his possession, he heard a “ding” from the iPhone, indicating that it had received a new text message. Report of Proceedings (RP) at 20. Sawyer picked up the iPhone and viewed the following message, which appeared in its entirety on the iPhone's screen: “Hey whats up dogg can you call me i need to talk to you.” Clerk's Papers (CP) at 28. The text message was from “Z–Shawn Hinton.” RP at 22. Sawyer knew Hinton from past arrests.

[169 Wash.App. 32]¶ 3 Sawyer responded to Hinton's text message using Lee's iPhone. The following text message exchange occurred:

[Sawyer]: Can't now. What's up?

....

[Hinton]: I need to talk to you about business. Please call when you get a chance.

....

[Sawyer]: I'm about to drop off my last.

....

[Hinton]: Please save me a ball. Please? I need it. I'm sick.3

RP at 22–25. Through a series of additional text messages, the two men agreed to meet for a drug transaction in a grocery store parking lot. Sawyer contacted Hinton in the parking lot and arrested him. After the arrest, Sawyer called the phone number associated with Z–Shawn Hinton in Lee's iPhone, 4 and Hinton's cell phone rang.


¶ 4 The State charged Hinton with attempted possession of heroin.5 Hinton moved to suppress “any and all evidence obtained as a result of the search of the cell phone taken from Daniel Lee.” CP at 7. He argued, in relevant part, that the detective's actions violated Washington Constitution, article I, section 7 and the Fourth Amendment. In response, the State argued that Hinton “did not have a legitimate expectation of privacy in the text messages.” CP at 18.

¶ 5 Sawyer, the State's only witness at the suppression hearing, testified as we set out above. The trial court denied Hinton's motion to suppress, stating:

[169 Wash.App. 33]Under State v. Wojtyna, 70 Wash.App. 689[, 855 P.2d 315] (1993), there is no expectation of privacy in a communication transmitted to a device such as an iPhone. Text messages are an active form of communication. Whoever is sending a text message does not know who is observing the message. The sender of a text message makes an assumption that the message will be received by the person intended. The communication is not rendered private based on that assumption.

CP at 30.


¶ 6 Hinton stipulated that he committed the crime. The trial court convicted him at a stipulated facts trial. Hinton appeals.

ANALYSIS

¶ 7 Hinton argues that he had a reasonable expectation of privacy in the text message that he sent to Lee's iPhone. It is important to note that Hinton is arguing a privacy interest in another's electronic device, not his own. He argues that when Sawyer read Hinton's text message without having obtained a warrant, Sawyer conducted a search that violated Washington Constitution, article I, section 7, and the Fourth Amendment. He asserts, therefore, that the trial court should have suppressed the fruits of Sawyer's illegal search, including “the officer's communications with [Hinton], as well as the

[280 P.3d 479]

presence of [Hinton] at the fake drug sale the officer arranged.” Appellant's Br. at 16. This argument fails because the text messages as received on Lee's iPhone are not protected under either the state or the federal constitution.

¶ 8 We review 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). We turn first to the state constitutional challenge. State v. Afana, 169 Wash.2d 169, 176, 233 P.3d 879 (2010).

[169 Wash.App. 34]A. Hinton's Text Messages Found On Lee's Phone Are Not Protected Under Article I, Section 7 of The Washington Constitution

¶ 9 Article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” This provision protects a person's home and private affairs from warrantless searches. State v. Carter, 151 Wash.2d 118, 125, 85 P.3d 887 (2004). It is well settled that article I, section 7 affords qualitatively different—and potentially broader—protections than those provided by the Fourth Amendment to the United States Constitution. State v. McKinney, 148 Wash.2d 20, 26, 60 P.3d 46 (2002) (citing City of Seattle v. McCready, 123 Wash.2d 260, 267, 868 P.2d 134 (1994)). But merely holding that a given state constitutional provision affords enhanced protection in a particular context does not necessarily lead to the same result in a different context. McKinney, 148 Wash.2d at 26, 60 P.3d 46 (quoting State v. Johnson, 128 Wash.2d 431, 446, 909 P.2d 293 (1996)). We must determine “whether the language of the state constitutional provision and its prior interpretations actually compel a particular result.” McKinney, 148 Wash.2d at 26, 60 P.3d 46;McCready, 123 Wash.2d at 267, 868 P.2d 134.

¶ 10 When dealing with a challenge under article I, section 7, we use a two-step analysis. State v. Valdez, 167 Wash.2d 761, 772, 224 P.3d 751 (2009). First, we must determine whether the State has intruded into a person's private affairs. Valdez, 167 Wash.2d at 772, 224 P.3d 751 (quoting York v. Wahkiakum Sch. Dist. No. 200, 163 Wash.2d 297, 306, 178 P.3d 995 (2008)). If the State has disturbed a privacy interest, the second step in our analysis asks whether the authority of law required by article I, section 7, justifies the intrusion, which is satisfied only by a valid warrant, limited to a few jealously guarded exceptions. Valdez, 167 Wash.2d at 772, 224 P.3d 751 (quoting York, 163 Wash.2d at 306, 178 P.3d 995).

¶ 11 Private affairs are “those privacy interests which citizens of [Washington] have held, and should be [169 Wash.App. 35]entitled to hold, safe from governmental trespass.” McKinney, 148 Wash.2d at 27, 60 P.3d 46 (quoting State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984)) (alteration in original). It is not “merely an inquiry into a person's subjective expectation of privacy but is rather an examination of whether the expectation is one which a citizen of this state should be entitled to hold.” McKinney, 148 Wash.2d at 27, 60 P.3d 46 (quoting McCready, 123 Wash.2d at 270, 868 P.2d 134). In determining if an interest constitutes a private affair, we look at the historical treatment of the asserted interest, analogous case law, and statutes and laws supporting the interest asserted. McKinney, 148 Wash.2d at 29–32, 60 P.3d 46. Voluntary exposure by a defendant is relevant to our inquiry and can negate an asserted privacy interest. State v. Athan, 160 Wash.2d 354, 366, 158 P.3d 27 (2007) (citing McKinney, 148 Wash.2d at 29, 60 P.3d 46).

¶ 12 We hold that, in the context of the facts presented here, Hinton's text messages to Lee's iPhone are not Hinton's private affairs for purposes of article I, section 7.6 First, there is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person's iPhone.

[280 P.3d 480]

¶ 13 Second, analogous case law from Division One highlights the distinction in article I, section 7 jurisprudence between when a governmental officer intercepts a message transmitted from the sender to the recipient and when a governmental officer views a message received by a third party. Wojtyna, 70 Wash.App. at 691–93, 855 P.2d 315. In Wojtyna, police seized a drug dealer's telepager and monitored the pager's incoming calls.770 Wash.App. at 691, 855 P.2d 315. A police detective called one of the incoming telephone numbers and arranged to meet Wojtyna for a drug transaction. Wojtyna, 70 Wash.App. at 691, 855 P.2d 315. At the meeting site, the police arrested Wojtyna for [169 Wash.App. 36]attempted possession of a controlled substance. Wojtyna, 70 Wash.App. at 691, 855 P.2d 315.

¶ 14 Division One rejected Wojtyna's claim that police officers conducted an illegal search under article I, section 7. Wojtyna, 70 Wash.App. at 691, 694, 855 P.2d 315. While undertaking a Gunwall analysis, the court held that while Washington has historically extended strong protection to telephonic and electronic communications, a pager is “fundamentally different” from other forms of protected communications because the activity “is the seizure of a number sent to and received by a third party which happened to be Wojtyna's.” Wojtyna, 70 Wash.App. at 692, 855 P.2d 315;see State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986). For purposes of article I, section 7, the court explained...

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7 practice notes
  • State v. Hinton, No. 87663–1.
    • United States
    • United States State Supreme Court of Washington
    • February 27, 2014
    ...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 con......
  • State v. Roden, Nos. 41037–1
    • United States
    • Court of Appeals of Washington
    • June 26, 2012
    ...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, 169 Wash.App. 28, 280 P.3d 476 (2012). Hinton challenges Sawyer's intrusion in Lee's iPhone under both the state and federal constitutions. Hinton's and Rode......
  • United States v. Bode, Criminal Case No. ELH-12-158
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • August 21, 2013
    ...service provider.'") (quoting United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011), in turn citing Warshak); State v. Hinton, 280 P.3d 476, 483 (Wash. App. 2012) (holding "that text messages deserve privacy protection similar to that provided for letters" under the Fourth Amendment); R......
  • State v. Marcum, No. S–2012–976.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • January 28, 2014
    ...device's level of technological complexity—that defeats the individual's expectation of privacy in that communication.” State v. Hinton, 169 Wash.App. 28, 280 P.3d 476, 482 (2012). The Washington Court distinguished cases discussing a defendant's expectation of privacy in his own phone, say......
  • Request a trial to view additional results
7 cases
  • State v. Hinton, No. 87663–1.
    • United States
    • United States State Supreme Court of Washington
    • February 27, 2014
    ...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 con......
  • State v. Roden, Nos. 41037–1
    • United States
    • Court of Appeals of Washington
    • June 26, 2012
    ...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, 169 Wash.App. 28, 280 P.3d 476 (2012). Hinton challenges Sawyer's intrusion in Lee's iPhone under both the state and federal constitutions. Hinton's and Rode......
  • United States v. Bode, Criminal Case No. ELH-12-158
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • August 21, 2013
    ...service provider.'") (quoting United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011), in turn citing Warshak); State v. Hinton, 280 P.3d 476, 483 (Wash. App. 2012) (holding "that text messages deserve privacy protection similar to that provided for letters" under the Fourth Amendment); R......
  • State v. Marcum, No. S–2012–976.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • January 28, 2014
    ...device's level of technological complexity—that defeats the individual's expectation of privacy in that communication.” State v. Hinton, 169 Wash.App. 28, 280 P.3d 476, 482 (2012). The Washington Court distinguished cases discussing a defendant's expectation of privacy in his own phone, say......
  • Request a trial to view additional results

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