OR: No privacy interest in a text message in the recipient’s cell phone

One who sends a text message to another cell phone has no privacy in that interest when it’s in the other phone. There is a privacy interest in the content of a telephone call, but not once it’s shared with another. State v. Carle, 2014 Ore. App. LEXIS 1366 (October 8, 2014):

The narrow question here, then, is whether defendant retained any protected privacy interest in the text message that she sent to Duane, once it was delivered to his phone. Because neither we nor the Supreme Court has yet addressed that question with respect to electronic communications, the parties draw from cases addressing whether a person retains a privacy interest in personal property that she gives to another. In State v. Tanner, 304 Or 312, 323, 745 P2d 757 (1987), for instance, the court explained that “the entrustment of an effect to another is sufficient to establish a privacy interest that is violated when the effect is discovered through an unlawful search.” (Emphasis added.) There, the defendant pledged stolen goods to a couple as collateral for a loan, and those goods were discovered when police illegally searched the couple’s residence. The court agreed with the defendant that, under those circumstances, he retained a privacy interest in the goods. The court reasoned that “a person who pledges effects as collateral is in much the same position as one who entrusts effects to another for other purposes,” and because “there remained a possibility that [the] defendant would reclaim the effects, the entrustment was sufficiently viable to demonstrate that the illegal search of the [couple’s] residence violated his privacy interests under section 9.” Id.