OH12: Getting text messages by court order without hearing violated Stored Commuunications Act, but no suppression required

Defendant was suspected of paying juveniles to engage in sex with each other and him and photographing it, and other juveniles with knowledge were citizen informants. This apparently was common knowledge among a group of young people, and the police found out. The police were told that defendant used text messages on his cell phone to communicate with them. Using a court order rather than a warrant, officers obtained his text messages from Sprint, confirmed the text messages, and then got a search warrant for his house, finding the pictures. The use of a court order rather than a warrant violated the Stored Communications Act, but suppression was not the remedy. As for the search of defendant’s house, there was probable cause even without the text messages based on the detailed reports of the citizen informants. State v. Rivera, 2010 Ohio 323, 2010 Ohio App. LEXIS 256 (12th Dist. February 1, 2010):

[*P24] According to the record in this case, Detective Woodall obtained appellant’s text message records that were less than 180 days old by using a court order rather than a warrant as required by Section 2703(a), Title 18, U.S.Code. Further, Detective Woodall did not provide notice to appellant as required by Section 2703(b)(1)(B)(ii), Title 18, U.S.Code. We find these to be violations of the Act. However, as we indicated above, Congress included several remedies for violations of the Act but did not include exclusion of as a remedy. Further, despite having the opportunity to do so, several courts have declined to hold that exclusion is a remedy for a violation of the Act. Accordingly, this court does not find it appropriate to permit exclusion as a remedy for violations of the Act. Moreover, we find it was objectively reasonable for Detective Woodall to rely on the Act being constitutional, as the Act has not been found to be unconstitutional, and Detective Woodall obtained the court order from a neutral and detached magistrate. Therefore, we find that the exclusionary rule is inapplicable to the evidence obtained in violation of the Act.

[*P25] To benefit from the protection provided by the Fourth Amendment, appellant must demonstrate that he suffered a violation of a constitutional right. At best, appellant has demonstrated that he suffered a violation of a statutory right. Because appellant has not demonstrated any valid privacy interest that invokes Fourth Amendment protection and the remedy he seeks for a nonconstitutional violation is impermissible, we need not determine whether the Act is facially unconstitutional. See Cray.

[Note: If the citizen informant’s information was of sufficient quality to get a search warrant for the home, and by all accounts it certainly was, if that same information was used to get the court order for the text messages, would not the court order be a de facto warrant for the text messages, and not just be called a “search warrant”? If so, defendant’s Fourth Amendment rights were adhered to, and the statutory violation was not sufficiently egregious to warrant suppression.]

Reasonable suspicion for defendant’s stop was shown by the fact that the defendant’s apparent confederate was doing hand-to-hand drug deals and coming back to defendant’s car, giving the appearance of getting more or splitting the proceeds. “While Robinson’s arguments may support a juror’s reasonable doubt, the Court finds that the agents have demonstrated that a prudent person would have concluded that there was a reasonable probability that Robinson was involved in illegal activity. Considering the totality of the facts and circumstances, the Court finds that the agents had probable cause to believe Robinson was involved in Glenn’s selling of crack cocaine to the CI.” United States v. Robinson, 2010 U.S. Dist. LEXIS 7392 (W.D. Ky. January 28, 2010).*