Troubling Decision Out Of Washington State

The Washington State Court of Appeals has issued a highly troubling decision which should cause great concern to everyone concerned about their privacy rights when it comes to their smartphone.  The police had arrested Daniel Lee for possession of drugs.  A police officer seized Lee's iPhone and started looking through Lee's text messages.  He noticed a suspicious text message from someone named "Z-Jon."  The officer sent a message to Z-Jon asking if he "needed more" and received a response in slang and agreed to meet up with the officer who was posing as Lee.  That meeting led to the arrest of Jonathan Roden who was eventually convicted of attempted possession of drugs.  Roden appealed his conviction arguing that the Washington Privacy Act requires that the police get consent before intercepting a private communication transmitted by a phone.  The Washington Court of appeals disagreed with Roden and held that there is no reasonable expectation of privacy in a text message sent because it is stored on a phone and can be viewed by anyone.  The majority equated text message with voice messages left on an answering machine which can be overheard by anyone.  The dissent strongly disagreed with the majority and warned that this ruling could put any phone in danger of being searched without a warrant.  So based on this decision, by simply possessing someones phone, a police officer is deemed to have consent to search the phone without anyone's permission and without a warrant.  This ruling throws the 4th Amendment out the door when it comes to your smartphone.  So under the majority's reasoning, any electronic communication that has a traceable electronic trail will not be protected because the mere sending of the communication means that the sender consented to the search.  Highly troubling.

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