State v. Marcum, S–2012–976.

• Citation: 319 P.3d 681
• Decision Date: 28 January 2014
• Docket Number: No. S–2012–976.,S–2012–976.
• Parties: STATE of Oklahoma, Appellant, v. Angela Marie MARCUM, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

319 P.3d 681

STATE of Oklahoma, Appellant,

v.Angela Marie MARCUM, Appellee.

No. S–2012–976.

Court of Criminal Appeals of Oklahoma.

Jan. 28, 2014.

An Appeal from the District Court of Pittsburg County, The Honorable Joe Sam Vassar, District Judge.

Julia D. Allen, Shannon McMurray, Tulsa, Oklahoma, for Defendant/Angela Marcum.

Julia D. Allen, Tulsa, OK, for Appellee/Angela Marcum.

E. Scott Pruitt, Attorney General of Oklahoma, Charles S. Rogers, Sr. Assistant Attorney General, Megan B. Tilly, Assistant Attorney General, Oklahoma City, Oklahoma, for Appellant/State.

Charles S. Rogers, Sr. Assistant Attorney General, Megan B. Tilly, Assistant Attorney General, Oklahoma City, Oklahoma, for State.

OPINION

SMITH, Vice Presiding Judge.

¶ 1 Angela Marie Marcum, James Michael Miller, and William Harbert Layden Jr. were charged in the District Court of Pittsburg County, Case No. CF–2011–347, with Conspiracy to Defraud the State of Oklahoma in violation of 21 O.S.2001, § 424. All three defendants moved to suppress evidence relating to text messages. After a June 21, 2012 hearing, the Honorable Joe Sam Vassar issued an Order on November 12, 2012, granting the motions of Miller and Marcum and overruling Layden's motion. The State timely appealed that order as to Marcum and Miller under 22 O.S.2011, § 1053(5) in this Court, Case No. S–2012–1005.

¶ 2 Miller was also charged in the District Court of Oklahoma County, Case No. CF–2011–5312, with Perjury (Counts I, II and III) in violation of 21 O.S.2001, § 491. Miller moved to suppress evidence relating to text messages in that case. After an October 26, 2012 hearing, the Honorable Kenneth A. Watson granted Miller's motion to suppress. The State timely appealed that Order under 22 O.S.2011, § 1053(5), in this Court, Case No. S–2012–976. On December 27, 2012, this Court granted the State's motion to consolidate the cases as Case No. S–2012–976. On March 13, 2013, the State moved to dismiss the appeal against Miller. This motion was granted on March 28, 2013. Marcum remains as the only Appellee in the consolidated appeal. The State raises three propositions of error in support of its petition.

¶ 3 Miller was an assistant district attorney in Pittsburg County and Marcum was the drug court coordinator responsible for collecting money. Miller and Marcum were romantically involved. The Pittsburg County District Attorney told Miller that the OSBI was in town investigating suspected embezzlement. Shortly after that conversation, Miller was seen in the alley behind the courthouse, texting quickly. Miller sent Marcum text messages from his personal cell phone, and received text messages from her on his personal phone. In the Pittsburg County Order granting the motion to suppress in part, the trial court describes the messages as “salacious and incriminating.” The defendants were accused in a multicounty grand jury indictment of obstructing the investigation of that crime.

¶ 4 The State sought to admit Exhibit 4, records of the U.S. Cellular telephone company of texts to and from Miller's cell phone, which were obtained pursuant to a search warrant. The State neither searched nor obtained records from Miller's actual cellular telephone. The defendants moved before trial to suppress these records. Miller took the lead in making and arguing this motion. He argued that his Fourth Amendment right against search and seizure was violated by seizure of the U.S. Cellular business records concerning Miller's texts. He claimed that the search warrant was invalid because the affidavit supporting it was insufficient. Marcum joined this motion. Judge Vassar found that both Marcum and Miller had a reasonable expectation that their texts would be private, and had standing to urge a motion to suppress. In considering the merits of the motion, the trial court specifically found that Oklahoma had not adopted the good-faith exception, and did not apply it when considering alleged defects in the affidavit supporting the search warrant.

¶ 5 We find regarding Proposition I that a review of the record shows the appeal is proper and review of the issue is in the best interests of justice. 22 O.S.2011, § 1053(5); State v. Pope, 2009 OK CR 9, ¶ 3, 204 P.3d 1285, 1287.

¶ 6 We find in Proposition II that the trial court erred in suppressing the evidence as to Marcum. The defendants in the Pittsburg County case sought to suppress the evidence of text messages by attacking the search warrant. The search warrant was directed, not to any defendant's cell phone, but to the business records of the U.S. Cellular phone company, a corporation, which kept a record of the texts in the regular course of business.¹ The U.S. Cellular records contained text messages sent from and received by Miller's personal cell phone. The State argued the defendants had no standing to contest the search warrant. The defendants argued that they had a protected privacy interest in the U.S. Cellular records of the text messages under the Fourth Amendment. Despite the complex procedural history of this case, the threshold issue before this Court is quite narrow: does Marcum have a Fourth Amendment reasonable expectation of privacy in the U.S. Cellular records of the texts from Miller's phone account, including messages Miller sent to her and replies she sent to Miller's phone, which were received by Miller? That is, the issue is not whether Marcum has an expectation of privacy regarding the contents of text messages from her own phone, or even regarding phone company business records kept for her phone account. Given the facts of this case, Miller is the only person who could claim an expectation of privacy regarding message content and records from his personal phone account. We decide only the narrow issue before us.

¶ 7 The initial issue below and on appeal is whether Marcum has a reasonable expectation of privacy in the U.S. Cellular records of Miller's phone account. This is not an analysis of standing. Fourth Amendment rights are personal, may not be asserted on behalf of another, and will be enforced only where a search and seizure infringes on a defendant's own rights. Rakas v. Illinois, 439 U.S. 128, 133–34, 99 S.Ct. 421, 425–26, 58 L.Ed.2d 387 (1978). Whether a defendant's Fourth Amendment rights have been violated is analyzed under substantive Fourth Amendment law, not as a question of standing. Minnesota v. Carter, 525 U.S. 83, 87–88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998); Rakas, 439 U.S. at 139–40, 99 S.Ct. at 428. Marcum must prove she exhibited an actual, subjective expectation of privacy, which society is prepared to recognize as reasonable. Champeau v. State, 1984 OK CR 54, ¶ 11, 678 P.2d 1192, 1195–96;Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). A legitimate expectation of privacy may arise “by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 951, 181 L.Ed.2d 911 (2012), quoting Carter, 525 U.S. at 88, 119 S.Ct. at 472;State v. Bass, 2013 OK CR 7, ¶ 5, 300 P.3d 1193, 1195 (quotation and citation omitted). In finding that Marcum had a privacy interest in the records, Judge Vassar found that Marcum made this showing. We review this decision for an abuse of discretion. Bass, 2013 OK CR 7, ¶ 10, 300 P.3d at 1196. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the issue; a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

¶ 8 This Court has not previously determined whether there is a Fourth Amendment right to privacy under these circumstances.Generally, “the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time of [ sic ] the subpoena is issued.” United States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976). It is settled that there is no reasonable expectation of privacy in call records of phone numbers kept by a telephone company. Smith v. Maryland, 442 U.S. 735, 745–46, 99 S.Ct. 2577, 2583, 61 L.Ed.2d 220 (1979). Here, the records consist of more than account numbers, and include the contents of the text messages themselves. Also, of course, here Marcum is not the account holder on the U.S. Cellular account named in the warrant. As the following discussion shows, no published case from any other court has addressed precisely this issue; one unpublished Eleventh Circuit case has a very similar issue. Generally, the cases discussing cell phones are more inclined to find a right to privacy in one's personal cell phone with the advent of smartphones, which contain a large amount of data and resemble computers more than regular telephones.

¶ 9 The United States Supreme Court has so far refused to explicitly recognize a right to privacy in the content of cell phones. The United States Supreme Court has reviewed the issue of a reasonable expectation of privacy in text messages in a different context, in City of Ontario, Ca. v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010). There, the City issued employees pagers which sent and received texts. After several months, the City audited the account, asked the wireless provider for transcripts of employees' text messages, discovered some were not work-related, referred the matter to the internal affairs division, and Quon was disciplined. He, and the persons with whom he had exchanged the messages, claimed that they had a reasonable expectation of privacy in the messages, and that the audit was not reasonable. Quon concerned a government employer auditing equipment provided by the employer for work use, and the decision is based on those...