TX: REP in text messages and a SW required to extract them; death penalty conviction reversed

There is a reasonable expectation of privacy in text messages, and a search warrant on probable cause is required to search for and seize them. (The federal good faith exception is not applicable, and there is no state good faith exception.) Capital murder convictions and death sentence reversed. Love v. State, 2016 Tex. Crim. App. LEXIS 1445 (Dec. 7, 2016):

And indeed, empirical data seem to support the proposition that society recognizes the propriety of assigning Fourth Amendment protection to the content of text messages: “Over 90%” of respondents to a recent survey reported that they “felt that law enforcement should never have access, or at least require a level commensurate with probable cause to obtain access to text, multimedia, or voicemail messages on cell phones.” Christine S. Scott-Hayward, Henry F. Fradella & Ryan G. Fischer, Does Privacy Require Secrecy? Societal Expectation of Privacy in the Digital Age, 43 AM. J. CRIM. L. 19, 55 (Fall 2015).

All of this leads us to conclude that the content of appellant’s text messages could not be obtained without a probable cause—based warrant. Text messages are analogous to regular mail and email communications. Like regular mail and email, a text message has an “outside address ‘visible’ to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient.” See United States v. Forrester, 512 F.3d at 511. Further, the State presented no evidence that Metro PCS had any business purpose for keeping records of the contents of its customers’ text messages. Therefore, we hold that appellant had a reasonable expectation of privacy in the contents of the text messages he sent. See In re Application (Fifth Circuit), 724 F.3d at 611; Warshak, 631 F.3d at 288. Consequently, the State was prohibited from compelling Metro PCS to turn over appellant’s content-based communications without first obtaining a warrant supported by probable cause. See In re Application (Fifth Circuit), 724 at 611; Warshak, 631 F.3d at 288.

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