A search warrant was used to obtain telephone records. There is no reasonable expectation of privacy in the records of another person’s account. When you hit “send” and send a text message to another person, you’ve lost any reasonable expectation of privacy in the message. State v. Marcum, 2014 OK CR 1, 2014 Okla. Crim. App. LEXIS 1 (Okla. Crim. January 28, 2014):
[*P6] 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. 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.
[*P7] 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.
[*P8] 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.
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[*P14] All the cases from other jurisdictions discussed above, including Clampitt, lack an important feature of this case: they all concern the reasonable expectation of the person who holds the account, owns the phone, or is personally given the phone for his use by his employer. Marcum is not that person. Marcum’s strongest claim to an expectation of privacy is in the texts she sent to Miller’s phone, which were received by him and recorded on Miller’s account records. This is similar to mailing a letter; there is no expectation of privacy once the letter is delivered. See, e.g., United States v. Gordon, 168 F.3d 1222, 1228 (10th Cir. 1999). It is like [**19] leaving a voice mail message, having the recipient receive and play the message, and then claiming the message is private. In an unpublished opinion the Eleventh Circuit found the defendants had no reasonable expectation of privacy in messages they had sent to or received from a third party, because once the messages were both transmitted and received, the expectation of privacy was lost. United States v. Jones, 149 Fed.Appx. 954, 2005 WL 2284283, **3 (11th Cir. 2005). The Minnesota Supreme Court found that a defendant had no reasonable expectation of privacy in cell phone records procured from a phone company where, although he possessed and used the phone, he was not the account holder and had no relationship with the phone company. State v. Griffin, 834 N.W.2d 688, 696-97 (Minn. 2013). In an unpublished case, a Texas appellate court has found a defendant had no reasonable expectation of privacy in a telephone company’s cell phone records for the accounts of co-defendants. Anderson v. State, 2013 U.S. Dist. LEXIS 72144, 2013 WL 1819979, *11 (Tex.App. Dallas 2013); see also Contreras v. State, 2012 U.S. Dist. LEXIS 20590, 2012 WL 3737714, *3 (Tex.App. Fort Worth 2012). A Washington appellate court found that a defendant had no reasonable expectation of privacy in text messages he sent to the cell phone of a third party, despite the characteristics of smartphones: “[I]t is the individual’s decision to transmit a message to an electronic device that could be in anybody’s possession – and not the receiving device’s level of technological complexity – that defeats the individual’s expectation of privacy in that communication.” State v. Hinton, 169 Wn. App. 28, 280 P.3d 476, 482 (Wash. App. Div. 2 2012). The Washington Court distinguished cases discussing a defendant’s expectation of privacy in his own phone, saying “That an individual may have a reasonable expectation of privacy in certain contents of his or her own cell phone, including the sent and received text messages that are stored on the phone, is simply not at issue here.” Hinton, 280 P.3d at 483. The same appellate court, in another case, found that a defendant gave implied consent to the recording of text messages he sent to a third party’s smartphone under the state’s privacy act, and the subsequent search of the smartphone did not violate the defendant’s privacy. State v. Roden, 169 Wn. App. 59, 279 P.3d 461, 465 (Wash.App. Div. 2 2012). Oklahoma law similarly makes provision for interception of an electronic communication where the interceptor is party to the communication, or when one of the parties has given prior consent to the communication. 13 O.S.2011, 176.4.
[*P15] Addressing only the narrow question before us, Marcum has not demonstrated a reasonable expectation of privacy in the records seized from U.S. Cellular for Miller’s phone account. This Court adopts the reasoning of the courts which have concluded that there is no expectation of privacy in the text messages or account records of another person, where the defendant has no possessory interest in the cell phone in question, and particularly where, as here, the actual warrant is directed to a third party. The trial court abused its discretion in finding that Marcum had a reasonable expectation of privacy in the records of text messages sent from and received by Miller’s phone, and kept by U.S. Cellular. Neloms, 2012 OK CR 7, 35, 274 P.3d at 170. This proposition is granted, and the case is reversed and remanded for further proceedings.
The only surprising thing about this is the trial court’s holding. Pretty basic stuff. If you don’t have a reasonable expectation of privacy in your own records, a fortiori, you sure don’t have it in somebody else’s. Even if third party record holder law changes, this won’t.
