MT: No REP in text message sent to a LEO

There is no reasonable expectation of privacy in text messages defendant sent to an undercover federal officer posing as a prostitute, despite Montana’s enhanced right of privacy under its state constitution. State v. Staker, 2021 MT 151, 2021 Mont. LEXIS 573 (June 22, 2021):

[*P24] In contrast, however, it is not objectively reasonable in society for people to reliably expect that persons to whom they are speaking, or to whom they otherwise expose their conduct or activities, will not repeat or report what they have heard or seen to others, including law enforcement. See Goetz, ¶ 35. Here, unlike in Stewart, Allen, and Goetz, this case does not involve any form of government monitoring or recording of a seemingly private conversation between people by separate surreptitious electronic means. Rather, this case involves the modern analog of the exchange of paper correspondence or notes by traditional mail or courier service by one with another who in fact may or may not be the person who the sender believes them to be. The only difference here is that, unlike the traditional paper exchange by mail or courier service, the communication exchange took place via point-to-point messages electronically transmitted from one to the other by and between their respective cellular phones or devices over a modern cellular telephone network. Unlike in Stewart, Allen, and Goetz, the government or a government agent did not surreptitiously intercept, listen-in, surveil, or record the subject communications exchange by separate electronic means as feared by the Framers of our Constitution. The involved government agent was merely the recipient, based on old-world subterfuge and misplaced trust, of text messages (i.e., digital information packets or files) knowingly and voluntarily sent by Staker to a specific cell phone number purportedly belonging to a sex worker known only as “Lily.” Consequently, our holdings in Stewart, Allen, and Goetz are factually and legally distinguishable here.

[*P25] Stripped of the incompatible and false comparison to surreptitious government monitoring and recording of face-to-face and telephone communications by separate electronic means, the residue of Staker’s assertion of error is that, based on the ubiquitous and increasingly essential nature of cell phone text messaging as a means of interpersonal communication in the modern world, Montanans have or should have an objectively reasonable expectation that the intended recipient of a cell phone text message is indeed the person the recipient purports or is purported to be—not a government agent. However, in contrast to the particular concern of the Framers of our Constitution—that people be protected from government monitoring and recording in private settings by surreptitious electronic means—we are aware of no similar Framers’ concern and desire to provide special constitutional protection from the traditional and longstanding use of undercover government agents to otherwise lawfully gain the trust of others in mutually consensual discourse and conduct in furtherance of the government’s compelling interest in detection and prosecution of illegal activity. We essentially held to the contrary just six years after voter ratification of our new Constitution. See State v. Leighty, 179 Mont. 366, 369, 588 P.2d 526, 528 (1978).

[*P26] In Leighty, without a search warrant, Montana Fish and Game officers used an out-of-state resident as an “undercover agent” to telephone a suspended Montana hunting outfitter to arrange a guided bear hunt in Montana in order “to test” the outfitter’s prior statement to a Fish and Game officer of his intent to defy the license suspension. Leighty, 179 Mont. at 368, 588 P.2d at 528. After the outfitter confirmed over the phone that he would take the agent on a guided hunt, the agent traveled to the outfitter’s Montana home, paid him the agreed price, and he then took the agent on the hunt as agreed. Leighty, 179 Mont. at 368, 588 P.2d at 528. Based solely on the testimony of the undercover agent regarding their conversations and his observations at the outfitter’s home and on the hunt, the State charged and successfully convicted the outfitter of “outfitting without a license,” a misdemeanor in violation of Montana law. Leighty, 179 Mont. at 368, 588 P.2d at 528.

[*P27] On appeal, the outfitter asserted that the conviction was invalid on the ground that the State illegally obtained the incriminating evidence by warrantless use of an undercover agent in violation of the Fourth Amendment to the United States Constitution and Montana Constitution Article II, Section 11. Leighty, 179 Mont. at 369-71, 588 P.2d at 528-29. We noted, however, that the outfitter was knowingly and voluntarily engaged in “business dealings” with the agent, made no attempt to “shroud them” from him under “a veil of secrecy,” and essentially incriminated himself by “reveal[ing]” his statements and conduct to the agent. Leighty, 179 Mont. at 370-71, 588 P.2d at 529. Further noting that the agent did not separately eavesdrop on any private conversation the outfitter did not intend for him to hear, we held that the outfitter had no objectively reasonable expectation of privacy in non-disclosure of what he revealed to the agent, and thus the warrantless use of the undercover agent did not violate any “right protected” under the Fourth Amendment or Article II, Section 11 of the Montana Constitution. Leighty, 179 Mont. at 370-71, 588 P.2d at 529 (citing Hoffa v. United States, 385 U.S. 293, 300 and 302, 87 S. Ct. 408, 413, 17 L. Ed. 2d 374 (1966)).

[*P28] Similarly, in Hoffa, a confidential FBI informant, who was a close associate of Teamsters Union President James R. Hoffa, was frequently in the company of Hoffa and his inner circle in and about their hotel suite and the courthouse while Hoffa was on trial under criminal indictment in federal court. Hoffa, 385 U.S. at 295-96, 87 S. Ct. at 410. Inter alia, the informant reported to the FBI that he was personally present and a party to several conversations wherein Hoffa and other associates discussed efforts made by them to bribe the jury in Hoffa’s favor. Hoffa, 385 U.S. at 296, 87 S. Ct. at 410. Following a hung jury in that case, the government later indicted and convicted Hoffa and three others for jury bribery based in part on the testimony of the confidential informant. Hoffa, 385 U.S. at 296, 87 S. Ct. at 410. On appeal, the Supreme Court considered whether the government illegally obtained the incriminating evidence in violation of the defendants’ Fourth Amendment right to privacy through the warrantless use of a confidential informant who violated their trust and confidence in the privacy of their personal conversations. Hoffa, 385 U.S. at 300, 87 S. Ct. at 412-13.

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