A far-reaching state Supreme Court decision

Appeals of two Longview  Texas drug convictions led to a far-reaching state Supreme Court decision Thursday that people have the right to privacy in sending and receiving text messages.

TDN.News

In separate 5-4 opinions, the justices overturned two Cowlitz County heroin convictions in cases that hinged on text messages a detective read on someone else’s phone.

“I believe this is going to be one of the most important decisions to come from the Supreme Court this year, if not a number of years,” said Longview lawyer John Hays, who represented Shawn Daniel Hinton, one of the men in the appeal.

Cowlitz County prosecutors said Thursday they were still assessing the affect of the decisions.

Convictions in the two cases in question will be nullified, and other cases involving similar police use of text messages likely will be affected as well, said James Smith, the chief criminal deputy prosecutor. Each case will have to be assessed individually, he said.

“Given the ruling, police tactics will have to change, and these types of investigations may no longer be possible, at least not using text messages,” Smith said.

The cases arose from the arrest of Daniel Lee in Longview in 2009. After seizing Lee’s cellphone, a Longview police detective started going through the text messages on it without a warrant. He found drug-related messages from Jonathan Roden, then responded, set up a drug deal and arrested Roden for attempted heroin possession. The detective also noticed texts coming in from Hinton and also arrested him.

Writing for the majority in both cases, Justice Steven Gonzalez said the men had an expectation of privacy in the content of their text messages, just as they would have if they sent a sealed letter, and that state residents have an expectation that their text messages won’t be read by police without a warrant.

“Text messages can encompass the same intimate subjects as phone calls, sealed letters and other traditional forms of communication that have historically been strongly protected under Washington law,’’ Gonzalez wrote in Hinton’s case.

Hays noted the rulings not only state police need a warrant before reading texts on someone’s seized phone, but that people sending texts to that phone also have privacy rights.

It’s common for police to answer cellphones of people they’ve arrested on drug crimes and set up sting operations with potential drug buyers. Hays said Thursday that those cases won’t be affected because there’s no privacy right when a stranger answers a phone someone called. In texts, though, he said there’s no clue, such as a different voice, that someone else is pretending to be the person texted. So, if officers want to read texts like they did in Roden’s and Hinton’s cases, they’ll need to first get a warrant, he said.

The U.S. Supreme Court is due to hear arguments in April about whether police are allowed under the U.S. Constitution to search a suspect’s cellphone without a warrant, as they did in Lee’s case. Washington’s Constitution is considered to be more protective of privacy than the federal Constitution’s Fourth Amendment, which protects against unreasonable searches and seizures.

The American Civil Liberties Union of Washington and the Electronic Frontier Foundation were among those who weighed in on behalf of Hinton and Roden. The Washington Association of Prosecuting Attorneys argued that because of the nature and prevalence of cellphones, people should know that text messages are sometimes seen by people other than the intended recipient.”

“The sender of a text message has no ability to control what happens with the text once it is delivered,’’ the association wrote.

Furthermore, the prosecutors argued, neither Hinton nor Roden should be allowed challenge searches of a phone that didn’t belong to them; the messages were not encrypted; and in Hinton’s case, the message simply popped up on Lee’s cellphone, where the detective could easily read it.

Hays said the analogy to the privacy of letters is appropriate. Under state law, he said, it should be clear that police can’t grab a sealed envelope out of a recipient’s mail box and read it without a warrant.

He called the case especially important, given how prevalent cellphones and texting are in today’s society.

Hays said he’s not condoning drug deals or other illegal activity being done by text — he just wants police to go before a judge and get a warrant before reading anyone’s texts.

“Had the decision gone the other way, you would have no expectation of privacy in any text message you sent to anyone,” he said. “Not your husband, wife, brother, sister, mother or father.”

The Associated Press contributed to this story.