Tentoni does not have an objectively reasonable expectation of privacy in the text messages delivered to another person’s phone and therefore can’t seek to suppress the text messages and other subsequently obtained phone records as fruit of the government’s illegal search of the phone.
After police found Wilson dead of a drug overdose they located Wilson’s phone and searched it without a warrant. They found text messages implicating Tentoni in the delivery of the drug that killed Wilson. Based on those text messages they obtained a search warrant for Tentoni’s phone records and found additional evidence. Tontini moved to suppress, but the circuit court found he had no reasonable expectation of privacy in the text messages. (¶¶2-5).
Applying the non-exhaustive list of relevant factors from State v. Trecroci, 2001 WI App 126, ¶36, 246 Wis. 2d 261, 630 N.W.2d 555, the court of appeals affirms:
¶8 Addressing the factors applicable to this case, we conclude that under the totality of circumstances Tentoni did not have an objectively reasonable expectation of privacy in text messages contained in Wilson’s phone…. First, Tentoni had no property interest in Wilson’s phone. Second, Tentoni had no control over Wilson’s phone or any right to exclude others from text messages he had sent to Wilson and which were stored in Wilson’s phone. Tentoni had no control over what Wilson did with Tentoni’s text messages. Third, Tentoni did not claim that he took any steps to enhance the privacy of his text messages to Wilson or that he ever told Wilson to keep those messages private. See State v. Duchow, 2008 WI 57, ¶33, 310 Wis. 2d 1, 749 N.W.2d 913 (no expectation of privacy in oral statement when made in public place because the speaker assumed the risk of disclosure to others); [State v.] Bruski, [2007 WI 25,] 299 Wis. 2d 177, ¶¶27-29[, 727 N.W.2d 503] (no legitimate expectation of privacy in vehicle in which the defendant had no property interest, took no precautions to secure privacy and lacked the right to exclude others).
¶9 Looking to other jurisdictions, it is widely accepted that the sender of a letter has no privacy interest in the contents of that letter once it reaches the recipient. See United States v. Dunning, 312 F.3d 528, 531 (1st Cir. 2002); Wayne R. LaFave, 6 Search and Seizure: A Treatise on the Fourth Amendment §11.3(f), at 293-95 & n.441 (5th ed. 2012) (“The standing of the sender, to the extent it is based solely upon the fact of his being the sender, terminates once delivery of the goods has been made.”). The same analysis has been applied to e-mails and texts. See Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (noting that a computer user “would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose ‘expectation of privacy ordinarily terminates upon delivery’ of the letter”) (citation omitted); State v. Patino, 93 A.3d 40, 56 (R.I. 2014) (“Because the recipient now shares full control of whether to share or disseminate the sender’s message, the sender, to be sure, no longer enjoys a reasonable expectation of privacy in the digital copy of the message contained on the recipient’s device.”); see also United States v. Jones, 149 F. App’x 954, 959 (11th Cir. 2005) (defendant did not have reasonable expectation of privacy in text messages contained in his coconspirator’s pager); Fetsch v. City of Roseburg, No. 6:11-cv-6343-TC, 2012 WL 6742665, at *10 (D. Or. Dec. 31, 2012) (no reasonable expectation of privacy in text messages displayed on third party’s phone); Hampton v. State, 763 S.E.2d 467, 471 (Ga. 2014) (no reasonable expectation of privacy in text messages where defendant could not show that phone belonged to him); State v. Griffin, 834 N.W.2d 688, 696-97 (Minn. 2013) (defendant did not have reasonable expectation of privacy in cell phone records because he was not the subscriber); State v. Carle, 337 P.3d 904, 910-11 (Or. Ct. App. 2014) (defendant did not have reasonable expectation of privacy in text messages sent to someone else’s cell phone)….
Tentoni points out that the Supreme Court recognized an expectation of privacy in text messages on a cell phone in Riley v. California, 134 S. Ct. 2473, 2495 (2014) (holding that law enforcement generally must obtain a warrant to search digital information on a cell phone seized incident to arrest). But as the court notes (¶9 n.5), Riley doesn’t help Tentoni because there the defendants who challenged the searches were themselves the owners of the cell phones that were searched. Id. at 2480-81. The court distinguishes other cases Tentoni cites on similar grounds: The person who possessed the phone being searched was the owner, the exclusive user, or a permissive user. City of Ontario v. Quon, 560 U.S. 746, 760, 764-65 (2010) (assuming that employee had a reasonable expectation of privacy in pager issued to him by employer, employer’s work-related search was still reasonable); United States v. Finley, 477 F.3d 250, 254 (5th Cir. 2007) (the phone found on Finley was issued to him by his employer but he was allowed to use it for personal purposes); State v. Bone, 107 So.3d 49, 66 (La. Ct. App. 2012) (exclusive user of cell phone had reasonable expectation of privacy in contents); State v. Clampitt, 364 S.W.3d 605, 611 (Mo. Ct. App. 2012) (cell phone subscriber has reasonable expectation of privacy in content of text messages); State v. Smith, 920 N.E.2d 949, 950, 954-55 (Ohio 2009) (defendant had reasonable expectation of privacy in his cell phone’s contents).